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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Crozier v Kilmore Hotels Limited [2014] NIIT 58_14IT (10 September 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/58_14IT.html
Cite as: [2014] NIIT 58_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 58/14
CLAIMANT: Donald Crozier
RESPONDENT: Kilmore Hotels Limited
DECISION
The unanimous decision of the Industrial Tribunal is that the claimant was unfairly dismissed. We order the respondent to pay the claimant the sum of £14,035.68 as set out at paragraph 4.18 below.
Constitution of Tribunal:
Employment Judge: Employment Judge McCaffrey
Members: Mrs E Torrans
Mr M McKeown
Appearances:
The claimant was represented by Mr S McVeigh, Barrister-at-Law instructed by Gillen and Co Solicitors.
The respondent was unrepresented and Mr D Graham, Director, did not attend.
1. ISSUES
1.1 The issues for the tribunal to consider were as follows:-
(1) Was the claimant an employee of the respondent under the provisions of Article 3 of the Employment Rights (Northern Ireland) Order 1996 and if so, from what date?
(2) Was the claimant dismissed by the respondent?
(3) If the claimant was dismissed, was the dismissal fair or unfair?
(4) Was the dismissal automatically unfair due to the failure of the respondent to follow the Statutory Dismissal and Disciplinary Procedures?
2. PRELIMINARY
2.1 This case had previously been listed for hearing on 6 May 2014. The record of proceedings of that day shows that on the morning a telephone call was received from the respondent company stating that Mr Graham, a Director of the respondent company, had been admitted to A & E and would be unable to attend. It was subsequently confirmed that he had been admitted to Craigavon Hospital earlier that morning and was undergoing tests. Due to Mr Graham’s unavailability through illness, the matter was postponed at that time. Employment Judge Buchanan who dealt with the matter at that time, noted that if Mr Graham was unable to attend a subsequent hearing he must provide medical evidence to the Office of the Tribunals. This should detail his medical condition, his prognosis and give an indication of when he would be fit to attend tribunal hearings. The matter was subsequently relisted for hearing on 8 August 2014.
2.2 On 7 August 2014 a letter dated 5 August was received from Mr Graham addressed, “To whom it may concern”. That letter indicated amongst other things that he would be unable to attend the tribunal on Friday, 8 August due to health reasons. He referred to a Doctor’s letter which was attached and which stated as follows:-
“This 56 year old man tells me he is due to attend tribunal this Friday. Recently he has been under considerable stress and attended CAH A & E Department with chest pain, from which he had been referred to cardiology and is awaiting an appointment. He feels attending this tribunal at present would be detrimental to his physical and mental health. Please take this into consideration. Many thanks.
Yours sincerely”
The signature is illegible.
2.3 As neither the letter nor the Doctor’s report specifically requested a postponement of the matter, an e-mail was sent to all parties indicating that the hearing would proceed and that the contents of Mr Graham’s letter would be considered at the hearing.
2.4 A telephone call was
subsequently received from Mrs Carol Graham (Mr Graham’s wife) indicating
that Mr Graham had to go to hospital the next day and would like a
postponement. She was advised to put this request in writing. On receipt of
an
e-mail from Mrs Graham, the e-mail was copied to the claimant’s
representatives who replied indicating that they believed that this was a
delaying tactic by the respondent company. The claimant’s representative
suggested that the company could have arranged for another company
representative to attend and that the claimant was aware that Mr Graham
continued to carry out his duties at the Bannville House Hotel on a daily
basis. Accordingly, the parties were advised that the postponement application
would be dealt with at the outset of the hearing and that if Mr Graham was
not available, another representative from the company could attend.
2.5 On the morning of the hearing, there was no attendance by anyone on behalf of the respondent company and in light of this we decided to proceed with the hearing. We treated the letter of 5 August 2014 which had been sent by Mr Graham as an unsworn statement on his behalf.
3. THE FACTS
3.1 We heard oral evidence from the claimant and from his girlfriend, Miss Mariesa Crossan. A number of documents were also opened to us in the course of the hearing, and we treated Mr Graham’s letter of 5 August as an unsworn statement. We gave a brief oral decision at the end of the hearing and indicated we would give written reasons for our decision. On the basis of the evidence received, we make the following findings of facts.
3.2 The claimant had originally been a self-employed maintenance man and had done work on a self-employed basis for the respondent. However in the summer of 2006 he commenced work for the respondent on a full-time basis at the Bannville House Hotel. The claimant indicated that he had been paid a net amount of £291.00 per week and that he worked 40 hours a week. This was also confirmed by Miss Crossan and the claimant produced a signed list from other staff members of the respondent (past and present) purporting to confirm this. We do not give any weight to this document, as none of the signatories apart from Miss Crossan were present to confirm and formally prove its contents.
3.3 There was a dispute between the respondent and the claimant as to the number of hours the claimant worked. The claimant indicated that a year or so after he started work for the respondent in August 2007, the respondent Mr Graham approached him and asked him if he could pay him partly “cash in hand”. The claimant indicated that he said he did not want anything to do with that and that he wanted everything to be above board. The claimant said his answer was, “Not a chance”, and thereafter he did not receive itemised payslips but just received a pay packet with his money. The respondent had produced some payslips for 2013 (only for occasional weeks and not for any consecutive period of time) showing the claimant’s pay as approximately £171.00 per week on the basis that he had worked approximately 24 hours per week. The claimant indicated that he had never seen these payslips before. We accept this evidence which was unchallenged in any way by the respondent. The claimant’s evidence was that his take home pay from his work with the respondent was £291.48 per week, based on 40 hours’ work per week and we accept his evidence and Miss Crossan’s evidence on this point.
3.4 In the spring and summer of 2013, the relationship between the claimant and the respondent deteriorated. It seems clear that this was not an easy relationship at the best of times in that there had been previous altercations between them. However, in May 2013, the claimant gave evidence that he had agreed to take over the nightclub at the respondent’s hotel along with a couple of colleagues, Josh McCann and Jonathan Donnelly. It was agreed that they would run the nightclub and that some of the income would be paid to Mr Graham. The claimant however indicated that Mr Graham was also unhappy at the way that the claimant and his colleagues were proceeding with the nightclub.
3.5 On 16 September, the claimant went to work as usual, and he realised that there was a poster up over the nightclub sign saying, “Get fit jiving”. This was an advertisement for a jive class which was being run in the hotel by an outside dance instructor. The claimant was unhappy with this so he went and took the sign down. He intended to put it up on a notice board where events held in the hotel were generally advertised. However, the lady who was running the class saw that the sign had been taken down and went into reception to ask about this. She spoke to the claimant about it and told him that she had permission from Carol Graham to put the sign over the nightclub sign. It is not clear why the claimant was so unhappy about this given that this was a Monday and presumably the most busy times for the nightclub were at weekends. The claimant’s view of this situation was that Mr and Mrs Graham were doing anything to “wind him up”. The claimant subsequently received a telephone call from Mr Graham telling him to put the sign back up again over the nightclub sign. The claimant’s evidence was that he told Mr Graham that this was, “Madness”, he indicated that the main thing in the hotel was the nightclub and he queried why the nightclub sign should be covered up. He also said that the jive class never really took off on previous occasions when it was run. The respondent’s response to the claimant was, “Put the signs up now and don’t question me”. The claimant repeated to Mr Graham that it was madness, it did not make sense as to why he should do such a thing. The claimant said that Mr Graham was getting more and more agitated and angry on the telephone. He also indicated that Mr Graham was a large man who had previously been a bouncer and used to do kung fu and karate. The claimant’s view was that he would not want to cross Mr Graham.
3.6 Mr Graham then said to the claimant, “Get out of the hotel, the nightclub’s over. Get out before I get over”. This is at variance with the account given of this incident by Mr Graham in his statement. On balance, we accept the claimant’s unchallenged account of events which was given to us in sworn testimony.
3.7 When it was queried with the claimant as to whether he had actually been dismissed from his role as maintenance manager, he said that once he had been told to get off the premises he believed that he would, “Not be in good shape 10 minutes later” if Mr Graham arrived. He saw Mr Graham’s response to him as a threat.
3.8 Following this, the claimant did not return to work and said that he had no contact with Mr Graham at all until a text message some six months later after these proceedings started. Miss Crossan (who is the claimant’s girlfriend) was head receptionist at the respondent’s hotel at the time. She was aware of the incident with the lady from the jive class and indicated that she was aware that Mrs Graham had come on the scene and was dealing with this lady. She did not hear the claimant’s side of the telephone call between him and Mr Graham. Mr Graham’s account of the following few days was that he thought the claimant would have returned to work, “when his temper had calmed down”. Mr Graham’s letter indicates that he spoke to Miss Crossan and that Miss Crossan told him that the claimant was not returning to work. Miss Crossan denied this had happened. She said that as she also worked at the hotel, she kept out of any dispute between the claimant and respondent. She indicated that she had been asked to go to the office by Carol Graham to get pay for someone else and saw a wages envelope sitting there addressed to the claimant. She asked Mrs Graham if she should take it home for the claimant and Mrs Graham’s answer was, “Don’t do anything til Dessie speaks to you”. Miss Crossan said this was about three weeks after the claimant had left and we accept that the claimant’s name had never been mentioned to her in the hotel between 16 September and that day. Mr Graham subsequently spoke to Miss Crossan, pointed out that there was a payslip with an envelope attached to it and asked her if she would pass it on to the claimant. He did not say what was in it, but it subsequently transpired that the envelope contained the claimant’s P45 which showed his departure date as 23 September 2013, a week after the incident of 16 September. We found Miss Crossan to be a clear and honest witness and we accept her account of this incident. When she was asked if the claimant had walked out before, as alleged by Mr Graham, she said she was aware of an incident between the claimant and Mrs Graham when Mrs Graham had told him that his contract was terminated. She indicated however that the following day Mr Graham had telephoned the claimant and everything had been rectified.
3.9 The claimant gave evidence that following the termination of his employment with the respondent he sought other employment which he began on or about 22 November 2013. This is part-time employment and he has continued in that employment up to the date of the hearing. His net pay in relation to that employment is £143.00 per week. He had not been in receipt of any benefits during the period between 16 September 2013 and 22 November 2013. The claimant did not give evidence in relation to any other income.
4. THE RELEVANT LAW, REASONS AND DECISION
4.1 The law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996. Article 130 of the Order provides:-
“130(1) In determining for the purpose of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify dismissal of an employee holding the position which the employee held.”
4.2 Article 130(2) sets out the grounds on which an individual can be fairly dismissed, i.e., capability or qualifications, conduct, redundancy, or breach of a statutory provision.
4.3 Article 130A relates to the procedural requirements in relation to dismissal. It provides as follows:-
“Article 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) 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 had he followed the procedure...”
4.4 The procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, insofar as they relate to unfair dismissal, comprise what has become known as the three step procedure. Step 1 of the procedure is notifying the employee of a potential disciplinary matter in writing; Step 2 is a disciplinary meeting at which the employee is entitled to put forward his account of events and to be accompanied; Step 3 is the appeal, after any finding against the employee.
4.5 In the event that an employer fails to follow the appropriate Statutory Dismissal Procedures, any award made by an Industrial Tribunal in favour of the employee shall be increased by 10% and the tribunal may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount to bring the increase up to a maximum of 50% (Article 17(3)) of the Employment (Northern Ireland) Order 2003. The duty to make an increase of 10% does not apply if there are exceptional circumstances which would make an increase of that amount unjust or inequitable (Article 17(4)).
4.6 The remedies to be granted in cases of unfair dismissal can range from reinstatement (where appropriate) to compensation. It is well established that the compensation consists of two elements, a basic award and the compensatory award (Chapter II of the 1996 Order).
4.7 The basic award may be reduced under Article 156(2) where the tribunal considers that any conduct of the complainant before 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 a basic award to any extent.
4.8 Similarly, the compensatory award payable under Article 157 may be reduced by such proportion as the tribunal considers it just and equitable, where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant (Article 156(6)).
4.9 Mr McVeigh for the claimant also referred us to the case of Newland v Simons and Willer (Hairdressers) Ltd [1981] ICR 521, which related to the issue of the jurisdiction of the tribunal where the contract of employment is tainted with illegality.
4.10 There was a dispute between the parties as to the number of hours which the claimant worked. He maintained that he worked full-time, i.e., 40 hours a week and his take home pay was £291.00 approximately. The respondent on the other hand alleged that the claimant worked on a part-time basis, approximately 24 hours per week and had sent in a number of pay slips which showed the claimant’s wages averaging approximately £171.42 per week. These pay slips were not for consecutive weeks; some of them showed the claimant working 8 hours per week or 16 hours per week with holiday pay added on to make the hours up to 24 hours per week (see paragraph 3.3 above).
4.11 We are satisfied on the balance of probabilities that the claimant worked 40 hours per week. The issue then remains as to whether or not the contract of employment in this case was tainted with illegality, or whether it is in order for us to deal with the claim, notwithstanding the fact that the employer may not have been reporting the full hours worked to HMRC and therefore not accounting for the proper amounts of Tax and National Insurance due under the PAYE Scheme.
4.12 In this case, we have only the claimant’s undisputed evidence in relation to the matter. He said that he had been approached by the respondent with a request that he should be paid part of his pay in cash and without it going “through the books”, and that he flatly refused this. Thereafter, he was paid without any itemised payslip being produced. The claimant was adamant that he did not know that proper returns were not being made to the Revenue in relation to this matter. He was certainly clear that he had no obligation to make any such returns himself as he understood it was all being done by his employer. Taking into account the fact that the claimant had previously been self-employed and was therefore in all probability more aware of the importance of making proper returns to HMRC, we are not satisfied on the balance of probabilities that there was any active participation in the illegal performance of the contract by the claimant, and he should therefore be able to rely on the contract.
4.13 We are conscious that we have only heard the claimant’s account of these events and that the letter sent by the respondent on 5 August 2014 has been treated as an unsworn statement, to which we can give only limited weight.
4.14 It is clear that there was a telephone conversation between the claimant and Mr Graham of the respondent company on 16 September 2013 and that they had an argument during that conversation. Mr Graham indicated in his statement that there was “no threatening tone” in any way, that it was short and direct. The claimant’s account however was that Mr Graham told him clearly to put up the nightclub sign and that they had an argument about this, with the claimant telling Mr Graham that it was, “madness”. Mr Graham told the claimant not to question him, as he was entitled to do as his employer and the claimant continued to argue. Ultimately, Mr Graham said to the claimant, “Get out of the hotel, the nightclub’s over. Get out before I get over”. Miss Crossan was unable to assist us with this matter as she said that she was doing other work and did not hear the claimant’s end of the telephone call. The claimant indicated that he was apprehensive of Mr Graham’s manner and aggressiveness and that this was why he left the hotel so promptly.
4.15 We have considered this carefully because it appears to us that at this time the claimant had two roles at the respondent’s hotel. The first was as maintenance manager and in this role, he was an employee. The second was as one of three individuals who would be running the nightclub where the agreement shown to us indicated he was not an employee. Mr Graham’s comments to the claimant that, “The nightclub’s over”, appears clear and unambiguous as far as that is concerned, the issue is whether it is clear in relation to the termination of the claimant’s employment as maintenance manager. Harvey points out (Division DI, paragraph 248) that the preponderance of authority in relation to ambiguous statements is in favour of the objective view, i.e., that the issue is how a reasonable listener would have construed the words used in all the circumstances of the case. This gives us only limited assistance in that, if we accept the claimant’s account of events, Mr Graham simply told him to get out of the hotel before he got over. However, we are also aware from the claimant’s account of matters and from also the respondent’s account that there had been a number of altercations between them before and that there had generally been some resolution between the parties. This did not happen on this occasion. The claimant did not return to work and did not make any effort to contact Mr Graham. Mr Graham equally did not make any effort to contact the claimant. Miss Crossan was quite clear in her evidence that she had not suggested to Mr Graham that the claimant had left and that he was not returning to work. On the contrary, she said that she was keeping out of the matter, given that she also worked for the respondent hotel. Her only involvement was to bring the claimant’s P45 and final pay to him, as requested by Mr Graham. We therefore find that Mr Graham’s order to the claimant to, “Get out of the hotel”, coupled with his failure to contact the claimant subsequently to discuss their conversation on 16 September and any work-related issues constitutes a dismissal.
4.16 We also find that the respondent failed to follow the Statutory Dismissal and Disciplinary Procedures in that the claimant was not given notice of any alleged disciplinary difficulties, was not called to a meeting and was not given any right of appeal. Accordingly, we find that the claimant’s dismissal was automatically unfair contrary to Article 130 of the 1996 Order. Where there has been a failure to follow the Statutory Disciplinary and Dismissal Procedures as we have set out above, the tribunal may increase a compensatory award made to a claimant where the employer has failed to follow the Statutory Disciplinary and Dismissal Procedures. In this case it is clear that the respondent failed to follow those procedures, and we are of the opinion that it would be appropriate to increase the award made to the claimant by 20% to take account of that failure on the part of the respondent.
4.17 We must also consider whether the claimant contributed in any way to his dismissal. It is our finding that he did. The claimant was an employee of the respondent company of which Mr Graham was a Director. He was therefore liable to follow the reasonable work instructions given to him in carrying out his work. The fact that the claimant had an interest in the nightclub was a slightly different point. The day when the claimant was dismissed was Monday, 16 September. The claimant’s main objection was that a banner had been put up over the nightclub sign, advertising a jive dancing class. There was no indication given as to whether this sign was a permanent sign or whether it had been put up on a temporary basis. The claimant unilaterally decided to go and take the jive dancing sign down, and when the lady who ran the classes called to discuss this, he told her that he would put it up on the other notice board. Given that he was subsequently telephoned by Mr Graham and given clear instructions to put the sign up again, the claimant’s attitude was inappropriate to say the least. First of all he argued with the respondent saying that it was, “Madness”, and asking why he would do as the respondent asked. The claimant therefore completely failed to follow a reasonable work instruction and in our view this exacerbated the situation. In our view it would be appropriate to reduce the award made to the claimant by 20% due to his contributory conduct.
4.18 Accordingly, we order the respondent to pay to the claimant the following amounts:-
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(1) |
Basic Award |
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The claimant’s net pay was £291.00 per week and he had 7 complete years service with the respondent. We have no figure for his gross pay and so we can only make an award on the basis of the information we have. Accordingly, his basic award is as follows:- |
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£291.00 x 4 Years over 41 Years x 1½ = |
£1,746.00 |
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£291.00 x 3 Years under 41 Years = |
£873.00 |
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£2,619.00 |
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- 20% contributory fault £523.80 |
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£523.80 |
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Sub Total: |
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£2,095.20 |
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(2) |
Compensatory Award |
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The claimant was out of work for approximately 10 weeks before finding alternative employment. |
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Loss of Earnings |
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£291.00 x 10 = £2,910.00 |
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£2,910.00 |
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(3) |
Ongoing Loss |
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Up to the date of hearing, £291.00 - £143.00 = £148.00 per week.
£148.00 x 35 Weeks |
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£5,180.00 |
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(4) |
Future Loss |
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Given that the claimant has found other work but has an ongoing loss we consider it appropriate to award 26 weeks for future loss. |
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26 x £148.00 = £3,848.00 |
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£3,848.00 |
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(5) |
Loss of Statutory Rights |
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£500.00 |
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£500.00 |
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£12,438.00 |
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(6) |
Uplift for failing to follow the Statutory Dismissal and Disciplinary Procedures - 20% |
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£2,487.60 |
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£2,487.60 |
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£14,925.60 |
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Less 20% for contributory fault - £2,985.12 |
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£2,985.12 |
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Balance Compensatory Award: |
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£11,940.48 |
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4.19 The Recoupment Regulations do not apply in this case as the claimant did not claim any social security benefits. We therefore order the respondent to pay to the claimant the total sum of £14,035.68.
4.20 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 8 August 2014, Belfast.
Date decision recorded in register and issued to parties: