Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  8780/18

 

 

 

CLAIMANT:                          Martin Paul Sloan

 

 

RESPONDENT:                  D L Diamond Ltd

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed but had correct procedures been followed the claimant would still have been dismissed and that the claimant contributed wholly to the dismissal such that basic and compensatory awards are reduced to nil.  The claimant’s claim for holiday pay is dismissed following its withdrawal.  The claimant’s claims for notice pay and wages are not well founded and are dismissed.

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge Bell  

 

Members:                             Mr I Atcheson

                                                Mr R McKnight

 

 

Appearances:

 

 

The claimant was self-represented.

 

The respondent was represented by Mr Paul O’Kane, Director of the respondent company.

 

1.            The claimant complained in his claim that he was unfairly dismissed, due notice pay, arrears of pay and holiday pay.  The claimant at the outset of the hearing withdrew his holiday pay claim.

 

2.            The respondent in its response resisted the claimant’s claims, contended the claimant had been fairly dismissed by reason of his conduct and had an outstanding loan.

 

 

 

ISSUES

 

3.            The following issues (as confirmed at hearing) were before the tribunal for determination:-

 

(1)                      Was the dismissal automatically unfair for failure to comply with statutory disciplinary and dismissal procedures?

 

Otherwise

 

(2)          Was the dismissal ‘ordinarily’ unfair?

 

-              What was the reason for the dismissal?

 

-              Did the respondent believe the claimant was guilty of the misconduct alleged?

 

-              Did the respondent have reasonable grounds upon which to sustain such a belief in the claimant’s guilt following a reasonable investigation?

 

-              Were the procedures adopted and penalty imposed reasonable?

 

If so

 

(3)          If there was a procedural irregularity making the dismissal unfair should a percentage (Polkey) reduction be applied to any compensation to reflect the likelihood the claimant would still have been dismissed if the respondent complied with correct procedures?

 

(4)          Did the claimant by his conduct contribute to his dismissal such that a percentage reduction of any compensation should be applied?

 

(5)          Has the claimant unreasonably failed to mitigate his loss?

 

Also

 

(6)          Has the respondent failed to give the claimant proper notice?

 

(7)          Has the respondent failed to pay the claimant in respect of wages due?

 

If so

 

(8)          What loss has been incurred?

 

EVIDENCE

 

4.            The tribunal considered the claim, response, agreed bundles of documentation from both parties and heard sworn oral testimony from Mr Paul O’Kane and Mr Michael Collins (General Manager) for the respondent and from the claimant.

 

 

 

FINDINGS OF FACT RELEVANT TO LIABIITY

 

5.            The claimant commenced employment with the respondent as a kitchen porter/ general operative/cleaner from 1 October 2014.  The respondent confirmed in its response (ET3) that the dates of employment given by the claimant were correct.

 

6.            In the week before termination of his employment the claimant was advanced a sum of £250.00 by Mr Collins on the direction of Mr O’Kane.  

 

7.            Following a reconciliation of monies held in a key operated safe on the respondent’s licenced premises on 16 April 2018 by two of the respondent’s duty managers and by the respondent’s general manager on 17 April 2018, the respondent identified that monies were in total £230.00 short.

 

8.            On viewing CCTV the respondent identified that the only people on the premises during the relevant time since monies were last checked were the respondent’s two duty managers and the claimant.

 

9.            On 18 April 2018 the claimant was called to a meeting with Mr O’Kane, also attended by Mr Collins. Mr O’Kane informed the claimant that monies were missing from the respondent’s safe and he believed the claimant had taken them, he requested that the claimant pay the monies back and that he could leave his employment but that otherwise they would phone the police.  The claimant denied having taken the money and told Mr O’Kane he could phone the police.  The police were telephone and the matter reported.  When the police had not attended by a short time later the claimant said that he was leaving and the police could come and get him if he was needed.  The claimant was viewed by Mr O’Kane then on CCTV downstairs in the respondent’s premises having ordered a drink; Mr O’Kane went downstairs and asked the claimant to leave the premises.

 

10.         On 19 April 2018 the claimant sent a text message to Mr Collins enquiring whether he was suspended on full pay.  The claimant was asked to come to the respondent’s premises which he did. Mr Collins met the claimant and accompanied him to Mr O’Kane’s office to show the claimant CCTV footage held of him during the relevant time when monies were identified as having gone missing.

 

11.         The claimant, Mr O’Kane and Mr Collins watched the CCTV footage which showed the claimant lifting a bunch of door keys and spending time in the area of a cupboard where the respondent’s safe was kept, taking a drinks can from his pocket, placing the can on the floor and moving it with his foot.  It was in dispute whether the claimant was able to be seen on the CCTV also taking the safe key from a small box above where the bunch of door keys was retrieved and this is not on the evidence presented a matter upon which the tribunal are able to reach a determination.  The claimant was questioned by the respondent and asked to explain why he had spent two and a half minutes at the cupboard where the safe was and what he had been doing with the drinks can.  The claimant in his claim form presented on 28 June 2018 set out that he had been there to get the necessary item to light the fire, one of his usual duties.  At hearing the claimant’s evidence was that he had got a brush, shovel and couple of cleaning sprays from the cupboard but not firelighters as they were not always there.

 

 

 

12.         Mr O’Kane questioned the claimant asking ‘was he playing football’ when seen to move the drinks can on the floor with his foot, and stated ‘you’re taking the f***ing food off my kids’ plates’.  Mr Collins and Mr O’Kane considered the claimant’s answers to their questions to be unsatisfactory.  It was in dispute whether the claimant then sniggered in Mr O’Kane’s face and lunged towards him or whether
Mr O’Kane moved around behind the claimant and punched him in the head and face.  The claimant and Mr O’Kane both fell to the floor.  Mr O’Kane’s evidence was that he was no match to the strength of the claimant and went down first. 
Mr Collin’s stated ‘Paul that’s enough’ intervened and helped them up off the floor.  The tribunal on balance find more consistent, credible and probable the evidence of Mr O’Kane supported by that of Mr Collins that the claimant instigated the physical altercation with Mr O’Kane and the evidence of Mr Collins that his comment ‘Paul that’s enough’ was addressed to the claimant (who was also known as Paul).

 

13.         The claimant left and made a report to the police about Mr O’Kane.

 

14.         By letter dated 23 April 2018 Mr O’Kane wrote to the claimant setting out that ‘due to your behaviour at a meeting on the 19^th April 2018, to discuss an investigation of theft from our premises, we have no other alternative but to terminate your employment with immediate effect.  We deem that an attack on an employer is a conclusive case of gross misconduct.’  No provision was made for the claimant to appeal the decision to dismiss him and no appeal took place.  The claimant contended at hearing that he did not receive the dismissal letter.  In its response form presented to the Office of the Tribunals on 22 August 2018 the respondent set out: ‘the following week Mr Sloan was sent a letter stating that due to his conduct his employment has terminated with immediate effect’ and the tribunal accept that the letter was sent albeit may not have been received.

 

15.         The claimant was sent and received from the respondent his P45 dated
25 April 2018.

 

16.         No payment was made to the claimant in lieu of notice.  

 

17.         The claimant’s gross weekly pay at the date of termination was approximately £234.00, being £222.00 net.

 

18.         At the date of termination the claimant had taken and been paid for 10 days holiday whereas he had only 8.1 days’ holiday accrued due to him.

 

19.         The claimant presented his claim to the Office of the Industrial Tribunals on
28 June 2018.

 

20.         The claimant claimed and received JSA until he found further employment following which he had no ongoing loss.

 

21.         By letter dated 7 November 2018 the Public Prosecution Service confirmed to the claimant their decision not to prosecute in relation to an incident between 13 and
16 April 2018 for which papers were submitted by the police.

 

22.         By letter dated 26 June 2018 the Public Prosecution Service confirmed to
Mr O’Kane their decision not to prosecute in relation to an incident on 19 April 2018 for which papers were submitted by the police.

 

23.         Mr O’Kane considered himself to have always had a ‘soft-spot’ for the claimant and to have gone to great lengths to help the claimant out in difficult times, he recognised the claimant to have a strong work ethic, but considered there to be ‘no way back’ by reason of him having been assaulted by the claimant as opposed to the loss of monies for which he believed based upon CCTV evidence the claimant to be responsible.

 

RELEVANT LAW

 

24.         Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘ERO’) an employee has the right not to be unfairly dismissed by his employer.

 

25.         The Employment (Northern Ireland) Order 2003 (‘2003 Order’) at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal.  The standard procedure consists of three steps.  At Step 1 an employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee and send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.  Step 2 requires a meeting and Step 3 is the provision of an appeal.  A modified two step procedure applies where the employer was entitled, in the circumstances, to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice.  The modified procedure also requires at Step 1 a statement of grounds for action and at Step 2 the provision of an appeal.

 

26.         A dismissal may be regarded as automatically unfair under Article 130A(1) ERO where one of the statutory dismissal and disciplinary procedures applies in relation to the dismissal procedure, it has not been completed, and, the non-completion of the procedure is wholly or mainly attributable to a failure by an employer to comply with its requirement otherwise Article 130 ERO sets out how the question of whether a dismissal is (‘ordinarily’) fair or unfair is to be determined.

 

27.         In relation to ‘ordinary’ unfairness of a dismissal, Article 130 ERO provides:-

 

“(1)    In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show:-

 

(a)     the reasons (or if more than one the principal reasons) 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 the dismissal of an employee holding the position which the employee held.

 

(2)     A reason falls within this paragraph if it –

 

(a)     relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,”

 

28.         Where a potentially fair reason is shown under Article 130(1), then determination under  Article 130 (4)  of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer:-

 

a)        depends on whether the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

b)        shall be determined in accordance with equity and the substantial merits of the case.

 

29.         Gross misconduct by an employee is conduct so serious that it completely undermines the employer’s trust and confidence in the employee to perform his duties.  Whether conduct amounts to gross misconduct cannot be confined to the employer’s own analysis but is a mixed question of fact and law for the tribunal in the context of reasonableness of the sanction in unfair dismissal or breach of contract.  As a matter of law, for an employee’s conduct to impliedly or expressly amount to a repudiation of the fundamental terms of the contract it must involve a deliberate and wilful contradiction of those terms or amount to very considerable negligence.  Where the employee commits a repudiatory breach of contract the employer may treat the contract as discharged by the breach. At common law, terms implied into the contract of employment include terms of trust and confidence and to provide loyal service.

 

30.         Where a tribunal finds the grounds of complaint of unfair dismissal are
well-founded the Orders it may make are set out at Article 146 ERO and include reinstatement, re-engagement and otherwise compensation.  How compensation is to be calculated is set out in Articles 152 to 161 ERO. 

 

31.         Article 154(1) (a) ERO provides for a minimum basic award of four week’s gross pay where there is an automatically unfair dismissal under Article 130 (1) for breach of the SDDP unless that increase would result in injustice to the Employer. This might apply for example in cases of fraud and dishonesty.  A deduction of 100% to the basic award, which also applied to the minimum basic award of four week’s pay was approved by the Court of Appeal in Dalzell v McIlvenna [CRN:1744/13] in an oral decision.

 

32.         The starting point for the calculation of the compensatory award is Article 157 (1) ERO:

 

‘(1)    Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer’.

 

33.         The compensatory award should not be increased out of sympathy for the claimant or to express disapproval of the respondent.  The claimant has a duty to mitigate his loss and the onus is on the respondent to show the claimant as unreasonable in the steps taken or not taken to do so.  The compensatory and basic awards may be reduced (Articles 156(2) and 157(6) ERO) where the claimant was guilty of blameworthy conduct (i.e. perverse, foolish, 'bloody-minded' or unreasonable in the circumstances) that contributed to the employer's decision to dismiss and the tribunal considers it just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault.

 

34.         The case of Polkey v Dayton Services LTD 1987 3 All ER 974 HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% to reflect the chance that the particular employee would have been dismissed fairly in any event had the unfairness not occurred.  It requires assessment of: - if a fair process had occurred whether it would have affected when the claimant would have been dismissed; and the percentage chance a fair process would still have resulted in the claimant’s dismissal.

 

35.         In Software 2000 Ltd v Andrews [2007] IRLR 568 EAT, the EAT held that in the Article 130(4) “exercise of determining whether the employer has shown that the employee would have been dismissed if a fair procedure had been followed, and the assessment of whether, instead, the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel”.  There are five possible conclusions that a tribunal may reach, according to Mr Justice Elias.  Firstly, the evidence from the employer may be so unreliable that the exercise of seeking to reconstruct what might have been is too uncertain to make any prediction.  Secondly, the employer may show that if fair procedures had been complied with, the dismissal would have occurred in any event.  The dismissal will then be fair in accordance with Article 130(A).  Thirdly, the tribunal may decide there was a chance of dismissal but that it was less than 50%, in which case compensation should be reduced in accordance with the Polkey principles.  Fourthly the tribunal may decide that employment may have continued, but only for a limited period.  Finally the tribunal may decide that the employment would have continued indefinitely because the evidence that it might have terminated earlier is so scant that it can effectively be ignored.

 

36.         Article 17 of the Employment (Northern Ireland) Order 2003 requires an uplift to be applied to awards in proceedings before an Industrial Tribunal relating to a claim under applicable jurisdictions listed in Schedule 2 (which includes unfair dismissal under Article 145 ERO) by an employee where it appears to the Industrial Tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and 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, in which case it shall (save where there are circumstances which would make an award or increase of that percentage unjust or inequitable) increase any award which it makes to the employee by 10% 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%.

 

37.         Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract of employment, or any other contract connected with his employment, before an industrial tribunal if the claim arises out of or is outstanding on termination of his employment.

 

38.         Article 118 ERO provides for the minimum notice to be given by an employer to an employee to terminate the contract of employment.  Dismissal without notice will be in breach of contract unless the employer is entitled to dismiss summarily.  What the tribunal thinks objectively probably occurred is relevant to wrongful dismissal and whether the tribunal considers misconduct amounting to a breach actually occurred.

 

39.         Article 45 ERO provides for a worker’s right not to suffer unauthorised deductions from wages by his employer.  A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.

 

APPLYING THE LAW TO FACTS FOUND

 

40.         The tribunal find that the reason for the claimant’s dismissal was his conduct at the meeting on 19 April 2018 which Mr O’Kane genuinely considered to have been an assault upon him by the claimant and which we accept amounted to a repudiatory breach of fundamental implied contractual terms of trust and confidence.  

 

41.         We are satisfied that the modified procedure of the statutory dismissal and disciplinary procedures was applicable to the claimant’s dismissal and whilst the claimant was provided a statement of grounds for action by way of the respondent’s letter of 23 April 2018, in breach of the modified procedure no provision was made for an appeal in compliance with Step 2 wholly at the failure of the respondent.

 

42.         In the circumstances the claimant’s dismissal was automatically unfair under Article 130A(1) ERO, the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure by the respondent to comply with its requirements.

 

43.         Taking into account the above, the tribunal on balance consider it more likely than not that the claimant’s employment with the respondent would not have continued had the respondent complied with the statutory dismissal procedure and the claimant been provided with an appeal.  We consider the respondent’s trust and confidence in the claimant had been destroyed and as per Mr O’Kane’s evidence that there was ‘no way back’.  We consider a 100% ‘Polkey reduction’ of the compensatory award just and equitable to reflect the likelihood that following correct procedures would have made no difference to the outcome.

 

44.         We furthermore consider that the claimant in assaulting Mr O’Kane in the course of the respondent’s enquiry into missing monies was guilty of blameworthy conduct that brought about the respondent’s decision to dismiss and that it is just and equitable to reduce the basic and compensatory awards by 100% to reflect the extent of his contributory fault.

 

Notice Pay

 

45.         We consider that the respondent was contractually entitled to summarily dismiss the claimant for gross misconduct and that notice pay is not due.

 

Arrears of Pay

 

46.         We are not persuaded that the claimant has on balance made out his claim for
20 hours arrears of pay, nor in any event that he has incurred a loss,  noting that he has been overpaid approximately two day’s holiday pay and that the sum of £250.00 was advanced to him in the week before his dismissal. 

 

 

CONCLUSION

 

47.         The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed under Article 130A(1) ERO by reason of failure wholly attributable to the respondent to complete the applicable statutory dismissal and disciplinary procedure.  The tribunal find that had correct procedures been followed the claimant would still have been dismissed and that the claimant contributed wholly to the dismissal such that basic and compensatory awards are reduced to nil.  The claimant’s claim for holiday pay is dismissed following its withdrawal. The claimant’s claims for notice pay and wages are not well founded and are dismissed.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:  26 March 2019, Belfast.

 

 

Date decision recorded in register and issued to parties: