Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2730/15

 

 

 

CLAIMANT: Brian Beattie

 

 

RESPONDENT: Philip White Tyres Ltd

 

 

 

DECISION

The unanimous decision of the industrial tribunal is that claimant was not dismissed but resigned and accordingly his claim for unfair dismissal is dismissed.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr S Kearney

Mr M McKeown

 

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr T Sheridan of Peninsula Business Services Ltd.

 

 

ISSUES

 

1. This is a claim of unfair dismissal brought by the claimant against the respondent. There was a conflict of evidence between the parties in relation to a number of matters. Most specifically, and at the heart of the claim, was the issue of whether the claimant was dismissed or whether he resigned.

 

2. The respondent's representative conceded that if the tribunal found that the claimant had been dismissed then it would be an automatically unfair dismissal contrary to Article 130A of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"), given that none of the statutory disciplinary procedures were followed.

 

3. We therefore considered it important first of all to address in our decision the issue of whether or not the claimant had indeed been dismissed.

 

FACTS

 

4. We received witness statements and heard oral evidence from the claimant, from Ms Michelle White HR Officer and Finance Assistant in the respondent company and from Liam White one of the Directors of the respondent company.

 

5. The claimant worked for the respondent as a Warehouse Operative and Wholesale Driver from 27 January 2014 until his employment ended on 16 September 2015. His responsibilities included loading and unloading tyres onto vehicles and he drove an HGV and a light commercial truck for deliveries. The larger vehicle was a lorry while the smaller vehicle was referred to as a van. It was agreed that when driving under his HGV Class C1 licence the claimant could only drive 10 hours at a time including two breaks, one of 15 minutes and one of half an hour. The time spent on his shift was determined by a tachograph card which had to be inserted into the vehicle when he commenced a journey.

 

6. On Wednesday 16 September 2015 the claimant was at the respondent's Campsie depot unloading tyres when he received a message to say that the lorry would be needed the following day for a larger than expected delivery of tyres going to the South of Ireland. The claimant had intended to use the van for that delivery to enable the lorry (the larger vehicle) to be loaded for a delivery of tyres to a trade stand at a Ploughing Championship in Athboy, County Laois on Friday 18 September 2015. Because of having to use the lorry on the Thursday, it would not be possible to have it back at the depot on the Thursday evening to have it reloaded to leave early on the Friday morning to go to County Laois. Accordingly the claimant was concerned that he would not be able to start his journey to County Laois on the Friday until approximately 11.00 am and that he might be delayed on the journey home.

 

7. The claimant telephoned Liam White in relation to the changes to the loading of the vehicle and the knock-on effect this would have on his leaving time on the Friday morning. There was a conflict of evidence between the claimant and Mr White in relation to matter but we are satisfied of the following: the claimant expressed his concern about leaving later than planned for the County Laois show on the Friday. Mr White clarified to him that he would not have to do any other deliveries other than the straight run to the show at Athboy in County Laois and there would be people to help him load the tyres in Armagh and unload in Athboy. The claimant agreed that there was usually help available although he disputed that Mr White had told him this. The claimant asserted that he would not have been able to complete the run within the 10 hours he was allowed to drive. He alleged that the journey down to County Laois was likely to take him four hours each way. When he was challenged that, even allowing for breaks, this would still be within his 10 hours, he asserted that the lorry would only be loaded from about 8.45 am and that once the lorry had been moved the tachograph would be running. This was disputed by Mr White, who said that the lorry could be moved within the yard for loading, and the tachograph would only start once the claimant actually started on his run. The claimant then varied his account to say that he was not concerned so much about extra driving hours but it was the extra time the run would have taken.

 

8. Mr White's account was that the claimant had stated to him that he would not carry out the delivery on the Friday and Mr White reminded him that it was part of his duties to deliver tyres. The claimant's account in his witness statement was that he was told by Mr White to clock out when he returned to the Armagh depot, leave the fuel card and the company mobile telephone in the lorry and he would get someone else to drive the lorry. In his claim form, the claimant had said that Mr White had added that he should "not come back". This was not the claimant's evidence to this tribunal, and we accept that on the basis of the claimant's evidence and also Mr White's evidence that Mr White only told the claimant to clock out and leave his fuel card and company mobile telephone in the lorry. We accept that Mr White did not say the claimant was dismissed. Neither the claimant nor Mr White clarified to us why the fuel card and company mobile phone needed to be left in the lorry but presumably these were used by the drivers. Mr White's evidence was that he asked a driver who worked for them occasionally to fill in and complete the delivery on Friday and that the driver concerned completed the run well within his 10 hour driving shift.

 

9. The claimant did not return to work after his telephone conversation with Mr White. The claimant checked into Job Centre online on the Thursday night after hearing (he did not say from whom) that his job had been given to someone else. The claimant subsequently applied for and was successful in obtaining a temporary job with Mackles. No evidence was given that the respondent attempted to contact the claimant about his non-attendance at work.

 

10. The claimant subsequently raised a grievance with the respondent by letter of 4 November 2015. His grievance was investigated by the respondent and a grievance outcome provided to the claimant under cover of a letter of 11 January 2016. The grievance meeting had to be postponed twice because of the claimant's failure to attend meetings. Ms White, who carried out that grievance investigation, noted that the respondent had inferred the claimant had resigned from the fact that the claimant left the site of his own accord, having refused to carry out a reasonable management instruction and subsequently requested a reference for his employment at Mackles.

 

THE RELEVANT LAW

 

11. It is important to note that the right not to be unfairly dismissed only arises where the claimant has been dismissed by the employer or where the employee terminates the contract under which he is employed in circumstances which he is entitled to terminate it without notice by reason of the employer's conduct (see Articles 126 and 127 of the 1996 Order). This claim was a claim of unfair dismissal, rather than a claim of constructive unfair dismissal, where the employee resigns in response to a breach of contract.

 

12. In order for the claim to proceed we must therefore be satisfied that the claimant was in fact dismissed.

 

13. On the basis of the evidence before us, we are not satisfied that the claimant was dismissed. We note that the claimant did not challenge the respondent's evidence in cross-examination, despite being given every opportunity to do so. It was pointed out to him that if there were matters in the respondent's evidence which he disagreed with, he should put questions to the witnesses to challenge their evidence but he did not do so.

 

14. We also found the claimant's evidence unconvincing and contradictory. Having heard the evidence, we consider that the claimant was vague about the time the proposed journey on Friday 18 September to County Laois and back would take and whether indeed it would take him over 10 hours. The claimant alleged that he was being asked to do something which was unlawful, but we can see no evidence of this. The claimant's evidence also changed. The claim form suggested he had been told to park up the lorry at the Armagh depot, leave the fuel card and mobile inside and "not come back". He retreated from this position in his evidence to the tribunal, and as we have set out above we are not satisfied that he was told this by Mr White at all. We are not satisfied that the claimant was dismissed. The terms used by Mr White, that he would get someone else to drive the lorry, could simply have referred to the fact that he was going to have to get someone else to do the run on Friday. We note that the claimant did not contact the respondent at any point on the Thursday when he knew that he had work he was due to do nor did he contact them at any later stage. Given that the only contact which the respondent had in relation to the claimant after this was a request for a reference, that we consider that they were entitled to infer that he had in fact resigned. As the claimant was not dismissed, his claim of unfair dismissal must fail and is dismissed.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 3 May 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: