Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 2830/16 &

56/17

 

 

 

CLAIMANT: Aleksas Zaveckas

 

 

RESPONDENT: Anaconda Equipment International Limited

 

 

DECISION

The unanimous decision of the tribunal is that:

 

1.          The claimant was unfairly dismissed.

 

2.          The claimant is not entitled to a redundancy payment.

 

3.          The claimant is not entitled to notice pay.

 

4.          The claimant is assessed by the tribunal to have been 50% responsible for his dismissal.

 

5.          The respondent is ordered to pay to the claimant the sum of £17292.87

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Browne

Members: Ms J Foster

Mr R Black

Appearances:

The claimant was represented by Mr R McCaughey, Barrister-at-Law, instructed by Aidan Quinn Solicitors.

The respondent was represented by Mr P Moore of MCL Associates.

 

ISSUES AND FINDINGS OF FACT

 

1.          The tribunal was required to determine:

 

(i) whether or not the claimant was unfairly dismissed contrary to Article 126 of the Employment rights (Northern Ireland) Order 1996, as amended, to include whether or not the claimant's complaint was in time;

 

(ii) whether or not the claimant is entitled to redundancy pay as per part XII of the Employment Rights (Northern Ireland) Order 1996; and

 

(iii) whether or not the claimant is entitled to notice pay as per Articles 118-119 of the Employment Rights (Northern Ireland) Order 1996.

 

2.          The claimant was employed by the respondent from 2 May 2011 as a fitter. There was a dispute between the claimant and respondent as to whether he left his employment on 27 May 2016, or whether he was dismissed on 9 September 2016.

 

3.          The claimant wished to avail of paternity leave for the birth of his child. His understanding was that he was applying for Shared Parental Leave and Pay, which, if certain conditions were fulfilled, would entitle him to receive the equivalent amount of maternity allowance due to his wife, had she taken time off from her work. The plan was that, because his wife ran her own lucrative beauty business, it made more financial sense for the claimant to take time off work for six months, to look after their newborn child, while his wife would return to work at the same time.

 

4.          Among the conditions applicable to the granting of such leave by an employer and payment by the state are: that the application be formally submitted to the respondent eight weeks before the child is born; and that his wife would otherwise be entitled to receive such payment.

 

5.          In this case, neither of those conditions applied. The understanding of the respondent was that the claimant was applying for paternity leave, which would involve only a few days' absence from work. It also transpired that, under the rules of the scheme, his wife would not in any event have been eligible to receive maternity allowance.

 

6.          It was clear from the evidence that the claimant and the respondent at the material time were talking about completely different types of leave, under the misapprehension that the other knew what was being discussed.

 

7.          The claimant stopped work on 22 April 2016, at which time he was given forms to fill in, which he realised he had filled in before, but filled them in anyway, and returned them on 16 May. His son was born on 1 May 2016.

 

8.          The claimant returned to work on 16 May and 23 May, at the request of the respondent, to do work which only he could complete. On 27 May, Mr Sean O'Neill, the respondent's Operations Manager, texted him telling him that it looked as if he was not entitled to Paternity Leave and Pay, primarily because he had not applied for it at least eight weeks prior to leaving on 22 April. Under the misapprehension that the claimant was only taking a short period of paternity leave, the respondent had not arranged a replacement for the claimant.

 

9.          A key date in this case was 27 May 2016. On the claimant's case, this was when
Mr O'Neill texted him, casting doubt upon the type of leave to which he was entitled. On the respondent's case, this was the day the claimant walked out of his job.

10.       On the claimant's case, this was the day Mr O'Neill informed him he might not be eligible for Shared Parental Leave and Pay.

 

11.       On Mr O'Neill's evidence, he had facilitated the claimant's request to return to work from 6am until midday, to suit his wife's working hours, but that the claimant walked out when his demand to be paid in cash was refused.

 

12.       Whatever occurred on that date, there was email evidence showing that Mr O'Neill on 6 June informed the claimant that "this option [Paternity Leave and Pay] is new to us and we want to get it right so apologies that it is taking this long but if we had been informed on time then we could have looked into it and sorted before you went off". There then followed an email on the same date, discussing the claimant's statement that, if he could not work 6 to 12, then he would have to quit, with no mention of insistence upon cash payment.

 

13.       There was continued written contact between the respondent and the claimant, via his solicitor, which mainly involved requests from the respondent for paperwork regarding the claimant's wife's income which he felt he had already supplied.

 

14.       On 16 August 2016, the respondent sent a letter to the claimant, which again set out the information it required in order to consider the claimant's request for Shared Parental Leave and Pay. That letter concluded "... I wish to advise you that we are treating your present absence as unauthorised and unless you make contact with us by [26 August] we will commence disciplinary action against you".

 

15.       That letter was for some reason sent to the claimant's former address in Lisburn, so he did not receive it until 2 September 2016. He received it via a third party who lived at the claimant's old address. No disciplinary proceedings were in fact commenced.

 

16.       The claimant immediately texted Mr O'Neill, and his solicitor wrote to the respondent on the same date, asking that disciplinary proceedings not be commenced. The claimant did not hear anything further until he received his P45 in the post on 9 September.

 

17.       The claimant's solicitor wrote to the respondent on 15 September, requesting the reasons for his dismissal, and asking for an appeal. The respondent replied on
20 September, saying that the claimant had resigned from his job on 27 May, and that consequently, no appeal or disciplinary procedure was necessary.

 

LAW AND CONCLUSIONS

 

18.       As regards the law on unfair dismissal, The Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides:

 

Article 126:

 

"(1) An employee has the right not to be unfairly dismissed by his employer..."

 

Article 127:

 

"Circumstances in which an employee is dismissed

 

127.-”(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) F1. . . , only if)-”

 

(a)              the contract under which he is employed is terminated by the employer (whether with or without notice),

 

[F2(b) he is employed under a limited-term contract that terminates by virtue of the limiting event without being renewed, or]

 

(c)              the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

 

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if-”

 

(a)              the employer gives notice to the employee to terminate his contract of employment, and

 

(b)              at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer's notice is given."

 

19.       It is the unanimous decision of the tribunal that the claimant was dismissed by the respondent. The line adopted by the respondent as to the events of 27 May 2016 was significantly offset by its conduct, in continuing to correspond with the claimant, the contents of its correspondence giving a clear impression that it was still trying to sort out the situation regarding the Shared Parental Leave and Pay situation.

 

20.       Of particular note in that regard was the letter of 15 August 2016, which ended with a threat to institute disciplinary proceedings if the claimant did not return to work. It was the clear view of the tribunal that such a statement, in conjunction with the other correspondence between them, can only properly be interpreted as meaning that the respondent still regarded the claimant as being employed by it.

 

21.       Even if the claimant had walked out on 27 May, the terms of London Transport -v- Clarke 981 IRLR 166 make it clear that it is not the repudiation by the claimant which would terminate the contract of employment but the acceptance of it by the respondent. It appeared to the tribunal from the conduct of both parties in the tenor of their subsequent correspondence that both parties expressed no such desire or acceptance.

 

22.       The tribunal is of the opinion that the letter of 15 August 2016 was probably sent to the wrong address in error. The consequences which flowed from that error made an already chaotic situation of mutual misunderstanding even worse, compounded by the unilateral decision of the respondent simply to send out the claimant's P45, despite correspondence from him by text to Mr O'Neill, and from his solicitor, to show that he had not received the letter of 15 August until 2 September. Even allowing for a slight delay in the post regarding his solicitor's letter, the claimant's text to Mr O'Neill must have made it clear to the respondent that something was seriously amiss.

 

23. The immediate response, of a complete change of attitude towards the claimant and his request, flew in the face of all that previously had passed between them, in which it appears to the tribunal that both sides until 15 August 2016 were co-operating as employer and employee, and trying to mutually resolve the issue of Shared Parental Leave and Pay. The tribunal is satisfied that, up until the 15 August 2016 letter, the respondent was genuinely trying to assist the claimant, despite the fact that this was and remained the responsibility of the claimant. He, in the view of the tribunal, had made lazy assumptions about what clearly were his own responsibilities.

 

24. The tribunal is unanimously of the view that the action of the respondent in sending out the claimant's P45 was a dismissal, arising, in the terms of the letter of 15 August 2016 from the claimant's unauthorised absence from work. It was clear from the respondent's letter that it regarded such absence as a matter requiring a disciplinary procedure. As such, this case falls within the scope of the Employment (Northern Ireland) Order 2003 ("the 2003 Order").

 

Statutory Dismissal Procedure

 

The statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

 

Step 1 - written statement of grounds for action and invitation to meeting - the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee.

 

Step 2 - meeting - the meeting must take place before action is taken. The meeting must not take place unless -

 

the employer has informed the employee what the basis was for including in the statement the grounds given in it, and

 

the employee has had a reasonable opportunity to consider his response to that information.

 

The timing and location of meetings must be reasonable.

 

After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.

 

Step 3 - appeal - if the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting. After the appeal meeting, the employer must inform the employee of his final decision. The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.

 

By Article 130A (1) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order "), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair.

 

25. A tribunal is required to consider whether the dismissal is automatically unfair under article 130A even where this issue has not been specifically raised by the claimant - see Venniri v Autodex Ltd (EAT 0436/07).

 

Compensation

 

26. In this case, the claimant did not seek either reinstatement or re-engagement. Therefore, in the event that the tribunal found that the claimant had been unfairly dismissed, it was agreed that the appropriate remedy would be compensation. Where compensation is ordered in respect of unfair dismissal, such compensation must be calculated in accordance with the principles set out in the Order.

 

27. By Article 156 (2) of the 1996 Order, "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."

 

28. By Article 157(6) of the Order, "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." In the case of Nelson v BBC (No.2) [1979] IRLR 346 (CA), it was held that three factors must be present for a reduction of the compensatory award for contributory fault:

 

-¢ The claimant's conduct must be culpable or blameworthy.

 

-¢ It must have actually caused or contributed to the dismissal.

 

-¢ The reduction must be just and equitable.

 

29. The tribunal is unanimously of the view that the claimant's conduct, in failing to make any serious attempt to discover what his responsibilities were, significantly contributed to his dismissal. He was content to rely on only the sketchiest of information, and demonstrated in his behaviour a sense of entitlement which even rudimentary enquiries by him would have revealed that the responsibility to prove his eligibility and to comply with regulations was his. The tribunal considers that the appropriate reduction should be one of 50%.

 

30. As the regards the claimant's claim for a redundancy payment, the tribunal is unanimously of the view that such a claim does not fall within any of the criteria set by Article 174 of the 1996 Order, which states:

 

" Redundancy

 

174.-”(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to-”

 

(a) the fact that his employer has ceased or intends to cease-”

 

(i)         to carry on the business for the purposes of which the employee was employed by him, or

 

(ii)        to carry on that business in the place where the employee was so employed, or

 

(b) the fact that the requirements of that business-”

 

(i)         for employees to carry out work of a particular kind, or

 

(ii)        for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.

 

(2) For the purposes of paragraph (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in sub-paragraphs (a) and (b) of that paragraph would be satisfied without so treating them).

 

(3) Where-”

 

(a)        the contract under which a person is employed is treated by
Article 171(5) as terminated by his employer by reason of an act or event, and

 

(b)        the employee's contract is not renewed and he is not re-engaged under a new contract of employment, he shall be taken for the purposes of this Order to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed, and he is not re-engaged, are wholly or mainly attributable to either of the facts stated in sub-paragraphs (a) and (b) of paragraph (1).

 

(4) In its application to a case within paragraph (3), sub-paragraph (a)(i) of paragraph (1) has effect as if the reference in that paragraph to the employer included a reference to any person to whom, in consequence of the act or event, power to dispose of the business has passed.

 

(5) In paragraph (1) "cease" and "diminish" mean cease and diminish either permanently or temporarily and for whatever reason."

 

The claimant's claim in that regard is therefore dismissed.

 

31. As regards the claimant's claim for notice pay, the tribunal is unanimously of the view that such claim is superseded by its finding regarding unfair dismissal. That claim is also dismissed.

 

Basic Award

 

1 week's gross pay capped at £500 per week x 5 [years worked] = £2500

 

Reduced by 50% due to contributory conduct by the claimant = £1250

 

Compensatory Award

 

Loss of earnings :

 

Net pay x number of weeks from Effective Date of

Termination [09/09/2016] to tribunal hearing:

£488.03 x 52 = £25,377.56

 

Future loss :

 

Net pay x number of weeks estimated to find another job:

£488.03 x 6 = £2928.18

 

Total compensatory award: £28,305.74

 

Less 50% due to contributory conduct by the claimant: = £14152.87

 

 

Compensatory award plus basic award: £14152.87 plus £1250 = £15402.87

 

Failure to follow statutory procedure :

10% uplift = £1540

 

Loss of statutory rights : = £350

 

Total: £17292.87

 

32. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

Employment Judge:

 

Date and place of hearing: 12 September 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: