Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/1081_13IT.html
Cite as: [2013] NIIT 1081_13IT, [2013] NIIT 01081_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1081/13

1259/13

CLAIMANT: Lewis James Davidson

RESPONDENT: Mr Clifford Montgomery t/a Montrose Garden Supply Co

DECISION

The unanimous decision of the tribunal is that the claimant was not dismissed by the respondent and that the claimant’s claims relating to unfair dismissal, payment in lieu of notice, redundancy pay, and for a remedy arising out of the respondent’s failure to provide a statement of initial employment particulars, are dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mr R McKnight

Ms M Galloway

Appearances:

The claimant appeared and represented himself.

The respondent appeared and represented himself.

THE CLAIM

1. The claimant claimed that he had been unfairly dismissed by the respondent, that he did not receive particulars of contract, that his contract had been breached as he had not received pay in lieu of notice, and that he was entitled to a redundancy payment. The respondent conceded that the claimant had not been provided with initial particulars of contract but denied that he had been dismissed.

THE REMAINING ISSUES

2. The remaining issues before the tribunal were as follows:-

(i) Was the claimant dismissed, and, if so, was he unfairly dismissed?

(ii) Was the claimant entitled to a redundancy payment?

(iii) Was the claimant’s contract of employment breached by the respondent in respect of pay in lieu of notice?

SOURCES OF EVIDENCE

3. The tribunal heard evidence from the claimant, from Clifford Montgomery (“the Respondent”), and from Colin Connor on behalf of the respondent. The tribunal also considered relevant documentation in the course of the hearing.

FINDINGS OF FACT

4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i) The claimant commenced employment with the respondent on 3 March 2009. He was employed as a Technician. His gross pay was £240.00 per week (£211.92 net).

(ii) On 4 April 2013, an altercation occurred between the claimant and the respondent. A customer had left a lawnmower at the respondent’s premises for its regular yearly service. The work card did not reveal any particular problem with the lawnmower. However, the claimant brought to the respondent’s attention that part of the carburettor belonging to the lawnmower was broken. The respondent had never seen this happen before and informed the tribunal that the lawnmower would have been pouring out petrol if it had had a broken carburettor.

(iii) The respondent had standby carburettors in the store but discovered that on top of the box containing these items were three carburettors from the same manufacturer with the same parts broken. The respondent enquired of the claimant as to whether he had broken the carburettor, which he denied. The respondent clearly doubted the truthfulness of the claimant’s explanation whereupon the claimant, who admitted using inappropriate language, ended the exchange by stating that he had had enough. He proceeded to his locker followed by Colin Connor. The claimant then went back into the workshop. The respondent asked him if he would sharpen chainsaws before he went. The claimant refused to do so, stated that he was leaving, threw his overalls at the respondent, and subsequently walked out. The claimant accused the respondent of using inappropriate language during the altercation and claimed that he heard him shouting at Colin Connor as he left the premises. On the evidence before it, the tribunal is satisfied that a heated exchange did occur and that the respondent was also likely to have used inappropriate language. However, it is not satisfied, as claimed by the claimant in his evidence, that the respondent told him that “you know where the door is, bye”, in advance of him requesting the claimant to sharpen the chainsaws.

(iv) The tribunal is satisfied that the respondent thought that the claimant needed to cool off. The claimant, who was not prevented from returning to work stated to the tribunal that he had no intention of returning anyway. The tribunal was shown correspondence, dated 9 April 2013, sent by the Social Security Agency to the respondent, (which related to the claimant’s claim for Jobseeker's Allowance) and which was duly signed by the respondent and dated 11 April 2013. The respondent stated in that documentation that the claimant had left voluntarily and had resigned. His P45 had been dated 8 April 2013. The claimant engaged the services of the Citizens Advice Bureau and presented a grievance to the respondent of 13 May 2013 alleging dismissal and requesting accrued holiday pay. The claimant has received an amount of £148.80 for holiday pay from the respondent.

THE LAW

5. (i) The tribunal considered the relevant provisions of the Employment Rights (Northern Ireland) Order 1996 in relation to dismissal and redundancy.

(ii) Whether an employee has resigned or has been dismissed is for the tribunal to determine on the evidence. The question always remains, “who really terminated the contract of employment?” The tribunal’s conclusions of fact must be accepted unless it is apparent that, on the evidence, no reasonable tribunal could have reached them (Martin v MBS Fastenings (Glynwed) Distribution Ltd) (1983) IRLR 198 CA.

(iii) Article 27 of the Employment (Northern Ireland) Order 2003 describes the circumstances in which a remedy is available to an employee where his employer has failed in his duty to provide an initial statement of employment particulars. Even where there has been a breach by an employer under Article 33(1) or 36(1) of the Order (relating to a statement of initial employment particulars, and statement of changes respectively), a tribunal will not make an award unless it finds in favour of the employee in respect of the claim to which the proceedings relate.

CONCLUSIONS

6. The tribunal, having carefully considered the evidence, and having applied the principles of law to the findings of fact, concludes as follows:-

(i) The respondent did not terminate the claimant’s employment with or without notice on 4 April 2013. It is clear from the findings of fact that there was an altercation, and the claimant left the premises in circumstances where the respondent was of the view that he would cool off. The subsequent correspondence from the Social Security Agency fortifies the respondent’s case that the claimant voluntarily left his employment and resigned. There is therefore no valid claim before the tribunal for a redundancy payment, payment in lieu of notice, or unfair dismissal.

(ii) As the tribunal has not found in favour of the claimant in respect of the claim to which the proceedings relate, he has no remedy available to him in respect of the respondent’s breach of his duty to him in not furnishing a statement of initial employment particulars.

7. Although the tribunal has some sympathy for the claimant in the circumstances in which he finds himself, it finds itself having to dismiss his claims in their entirety.

Chairman:

Date and place of hearing: 21 August 2013, Belfast.

Date decision recorded in register and issued to parties:

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