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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Laverty v Adrian Templeton t/a Day Today [2013] NIIT 01590_12IT (17 January 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1590_12IT.html
Cite as: [2013] NIIT 01590_12IT, [2013] NIIT 1590_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1590/12
CLAIMANT: Stephen Lee Laverty
RESPONDENT: Adrian Templeton t/a Day Today
DECISION
The claimant was automatically unfairly dismissed and is entitled to compensation in the sum of £5,458.59.
Constitution of Tribunal:
Chairman: Mrs A Wilson
Members: Mr I Savage
Mr P Kearns
Appearances:
Both the claimant and the respondent appeared in person. Neither party was represented.
SOURCES OF EVIDENCE
1. The tribunal considered the claim form, the response and the sworn oral testimony of the claimant and the respondent.
THE ISSUES
2. The issues for the tribunal were as follows:
(i) Did the claimant resign or was he dismissed?
(ii) If the claimant was dismissed what compensation (if any) is he entitled to?
(iii) In circumstances where no procedures were followed in connection with any proven dismissal what uplift in compensation (if any) is the claimant entitled to?
(iv) If it is established that the claimant was dismissed did his behaviour contribute to his dismissal so as to justify a reduction in any compensation awarded?
(v) If it is established that the claimant resigned was that resignation such as to amount to a constructive dismissal?
FINDINGS OF RELEVANT FACT
3. The claimant was employed by the respondent as a shop manager from 20 June 2006 to 6 July 2012.
4. The business operated by the respondent was a family business and the claimant and the respondent are cousins. At all material times the claimant’s mother was also employed by the respondent and in the months preceding the termination of the claimant’s employment, a nephew of the respondent (Jamie) was employed on a part time basis in the business.
5. Historically the claimant and the respondent enjoyed a good working relationship and a close personal friendship.
6. The working relationship enjoyed by the parties deteriorated in the months preceding the termination of the claimant’s employment and the tribunal is satisfied that that deterioration can for the most part be attributed to problems encountered by the claimant in seeking to manage Jamie.
7. The claimant made several approaches to the respondent in connection with Jamie’s conduct and the manner in which he carried out his duties. Notwithstanding the fact that he (the claimant) was the manager with managerial responsibility for staff it appears that the claimant required the respondent to intervene in addressing Jamie’s behaviour.
8. On 6 July 2012 following a series of complaints on the part of the claimant relating to Jamie and an incident whereby the claimant perceived that the respondent was checking up on him and the respondent believed that the claimant was exceeding his role and undermining him as the boss and owner of the business there was a heated and abusive exchange between the parties.
9. In the course of this exchange the claimant was told by the respondent in abusive terms to “get out of my shop”. He was told twice to “get out of my shop” and on the third occasion to “get out of my shop and never set foot in it again”.
10. It is the respondent’s case that these words were spoken in the heat of the moment and that it was not his intention to dismiss the claimant. Further it is his case that he said “get out of my shop and never set foot in it again” in response to the claimant asking for his wages to be made up. It is his case that the claimant in asking for his wages to be made up was tendering his resignation.
11. It is the claimant’s case that he regarded the words “get out of my shop” as dismissal and that he asked for his wages to be made up in response to that dismissal.
12. The tribunal finds that not a lot turns on the sequence in which the words were spoken. The important fact is that the claimant was told categorically and in abusive terms to “get out of my shop” and the first issue this tribunal must decide is whether those words were sufficient to amount to a dismissal of the claimant.
13. The tribunal considered Harvey on Industrial Relations and Employment Law Division D1 paragraphs 201 to 248. Having done so the tribunal considered in the first instance the intention of the respondent in telling the claimant to get out of his shop and in particular to whether it was his intention to dismiss the claimant. The respondent says that dismissal was not his intention. However after careful reflection the tribunal does not accept this to be the case. The respondent at the time that the words were spoken was responding to a series of complaints by the claimant relative in the main to Jamie. The claimant was complaining in an aggressive manner. His comments at the time were on any construction inappropriate for an employee to make to his boss and the tribunal has considered the words spoken by the claimant and the respondent’s response in this context.
14. In addition to the above the tribunal took into account that the respondent in his response to the proceedings admitted that the claimant was dismissed. The tribunal has considered the respondent’s case to the effect that the response was filled in at a time when he (the respondent) was under severe pressure and that this statement was made without thinking. However the tribunal does not accept this to be the case. Whether or not the claimant was dismissed is the crucial issue in this case and in these circumstances the tribunal find it highly unlikely that the respondent would have made such a thoughtless but fundamental error were it not his belief at the time that the claimant was in fact dismissed.
15. The tribunal considered the claimant’s response to the words spoken (“get out of my shop”) and is satisfied that he believed them to amount to dismissal and the tribunal finds that this was a reasonable and honest belief in all the circumstances of the case.
CONCLUSIONS
16. The tribunal finds that the claimant was dismissed. The tribunal accepts that the respondent genuinely regretted his actions subsequent to the event and was at the time responding to inappropriate behaviour on the part of the claimant. However regret subsequent to the dismissal is not sufficient to negate the dismissal.
17. The tribunal considered Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) which provides as follows:-
Procedural fairness
130A.— (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.
18. In circumstances where the claimant was summarily dismissed without any procedures whatsoever being followed the tribunal find that the claimant was automatically unfairly dismissed in accordance with Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). The tribunal has no evidence upon which to base a finding that the claimant would have been dismissed had the applicable procedures been followed. The claimant was dismissed in the heat of the moment and it is the respondent’s evidence that he regretted his actions subsequently. In these circumstances the tribunal is not satisfied that the claimant would have been dismissed had proper procedures been followed.
19. The tribunal is satisfied that the claimant was automatically unfairly dismissed and he is entitled to compensation calculated as follows:-
BASIC AWARD
20. The tribunal calculated the basic award in accordance with the provisions of Article 153 of the 1996 Order.
21. The claimant was earning £264.06 gross pay weekly. He was aged 28 at the date of dismissal and had 6 full years employment. He is entitled £264.06 (gross pay) x 6 amounting to £1,584.36 in respect of his basic award.
22. The tribunal considered Article 156 (2) of the 1996 Order which provides as follows:-
(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.
23. The tribunal is satisfied that the conduct of the claimant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award.
24. Immediately before the dismissal the claimant and the respondent were involved in an unseemly heated and mutually abusive altercation. There was an element of culpability on both sides. The tribunal is satisfied that this may be attributed to a large extent to the fact that the parties were related and worked together in a family business. The employment relationship for this reason appears to have lacked the formality normally associated with the employer employee relationship and the role of the claimant was not clearly defined. By way of example although the claimant had managerial responsibility, it seems that he lacked authority relative to Jamie and required the respondent to deal with issues relative to him.
25. The tribunal is satisfied that the respondent in dismissing the claimant was reacting (albeit in an inappropriate manner) to inappropriate comments made by the claimant. The tribunal finds that the making of these comments and the manner in which they were made and delivered was a most inappropriate way for an employee to behave. The tribunal is satisfied that such behavior in a more formal employment relationship would have amounted to a breach of discipline and in all the circumstances pertaining the tribunal find it just and equitable to reduce the amount of the basic award.
26. The tribunal reduces the basic award by 15%. The basic award is consequently adjusted as follows:-
£1,584.36 less 15% = £1,584.36 less £237.65 = £1,346.71.
COMPENSATORY AWARD
27. The tribunal calculated the compensatory award in accordance with Article 157 of the 1996 Order.
28. The claimant was dismissed on 6 July 2012. The tribunal is satisfied that he made reasonable efforts to mitigate his loss by actively seeking alternative employment. He commenced alternative employment on 8 October 2012 on a similar rate of pay. He was unemployed for 13 full weeks and is entitled (subject to recoupment) to £225.00 (net pay) x 13 amounting to £2,925.00.
29. The tribunal awards the sum of £300.00 in respect of compensation for loss of accrued statutory rights.
30. The claimant was dismissed without any procedures being followed. In these circumstances the tribunal is entitled to award uplift in the compensatory award in accordance with the provisions of Article 17 of the Employment (NI) Order 2003 (“the 2003 Order”).
31. Article 17 of the 2003 order provides for the purposes of this case as follows:-
(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that—
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings were begun, and
(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.
(4) The duty under paragraph (2) or (3) to make an increase does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.
32. The tribunal is satisfied that the failure to follow procedures was entirely due to failure on the part of the respondent and it is satisfied that there are no exceptional circumstances which would make it unjust or inequitable to increase the award to the claimant. Although the tribunal has found that the claimant behaved inappropriately towards the respondent immediately before dismissal, he nonetheless enjoyed the right not be unfairly dismissed and he enjoyed the right to have the applicable procedures applied in his case. These procedures were ignored. In all the circumstances of this case the tribunal award uplift to the compensatory award of 50% calculated as follows:-
Compensatory award: £2,925.00 plus £300.00 = £3,225.00.
Uplift of 50%: = amounting to the sum of £1,612.50.
Total compensatory award = £4,837.50
33. The tribunal considered Article 157(6) of the 1996 Order which provides as follows:-
(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
34. For reasons given earlier (see paragraphs 23 to 27) the tribunal finds that the dismissal of the claimant was contributed to by the actions of the claimant and considers it just and equitable (also for the reasons given at paragraphs 23 to 27) to reduce the amount of the compensatory award by 15%.
35. The compensatory award is adjusted as follows:-
£4,837.50 less 15% = £4,837.50 less £725.62 = £4,111.88.
36. The total compensation to include the basic and compensatory award following uplift and deductions amounts to £5,458.59.
37. This award is subject to the attached recoupment notice.
38. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
RECOUPMENT
39. This is a relevant decision for the purposes of recoupment of benefit (job seekers allowance) received by the claimant in accordance with the Employment Protection (Recruitment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996 (the 1996 Regulations).
40. The 1996 Regulations require the tribunal to set out:-
(a) the monetary award;
(b) the amount of the prescribed element, if any;
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed element.
41. For the purposes of this case, the monetary award is £5,458.59.
42. The prescribed element is that amount of the monetary award which represents compensation for loss of earnings. In this case the prescribed element is £2,925.00.
43. The prescribed element is attributable to the period from 6 July 2012 to 8 October 2012.
44. The amount by which the monetary award exceeds the prescribed element is £5,458.59 less £2,925.00 = £2,533.59.
45. The attached Recoupment Notice forms part of the decision of the Tribunal.
Chairman
Date and place of hearing: 12 December 2012, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 1590/12
CLAIMANT: Stephen Lee Laverty
RESPONDENT(S): Adrian Templeton T/A Day Today
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT ALLOWANCE/ INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.
|
|
£ |
|
(a) Monetary award |
£5,458.59 |
|
(b) Prescribed element |
£2,925.00 |
|
(c) Period to which (b) relates: |
6 July 2012 to 8 October 2012 |
|
(d) Excess of (a) over (b) |
£2,533.59 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.