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THE INDUSTRIAL TRIBUNALS

Case Ref No: 4559/03

8700/03

APPLICANT: Michael Mann

RESPONDENT: Crossgar Poultry Limited

DECISION

The Respondent conceded the Applicant was unfairly dismissed on 8 August 2003 because he had sought to exercise the statutory right to be accompanied at a grievance hearing by a Trade Union official, pursuant to Article 12 of the Employment Relations (NI) Order 1999 ["the 1999 Order"]. The Tribunal thus orders the Respondent to compensate the Applicant in the amounts provided in paragraph 11 below, which compensation shall include an amount to equal two weeks wages, pursuant to Article 13(3) of the 1999 Order. Moreover, the Tribunal regards the Respondent's conduct of its case before the Tribunal as unreasonable, and hereby orders it to pay £1000.00 of the Applicant's costs, pursuant to Rule 14 of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004 ["the 2004 Rules"].

Appearances:

The Applicant was represented by Mr O Stockman, of Counsel, instructed by McAteer & Co., Solicitors.

The Respondent was represented by Mr R Steer, of Counsel, instructed by Campbell & Caher, Solicitors.

Extended Reasons:

Pursuant to Rule 12 (4) of Schedule 1 to the 2004 Rules, this Decision is given in extended form.

The Tribunal found the following facts:

1. By his first Originating Application, presented on 29 September 2003, the Applicant complained that he had lodged a grievance complaint concerning bullying, harassment and stress. He alleged that he was then offered an interview by the Respondent, and that he asked to be accompanied by a trade union official, which request was denied by the Respondent. The Applicant complained that this refusal was in violation of Article 12 of the 1999 Order, and sought compensation.

2. By a Notice of Appearance, presented on 24 October 2003, the Respondent asserted that the Applicant had been employed by it from 20 February 2003 to 6 August 2003. At section 7 of this Notice of Appearance, the Respondent contended that the Applicant was invited to attend a meeting to discuss his grievance with representatives of the Respondent. However, it was alleged the Applicant failed to attend this hearing, and so the Respondent could not further investigate the grievance.

3. By his second Originating Application, also presented on 29 September 2003, the Applicant alleged that, upon presentation of his complaint of bullying and harassment, he was invited to attend a meeting on 7 August 2003. Thereupon his Trade Union faxed a letter to the Respondent formally seeking to accompany him to the meeting. No response was received from the Respondent. The Applicant then alleged he was dismissed.

4. By its second Notice of Appearance dated 28 October 2003, the Respondent denied the Applicant had been dismissed, and asserted the Applicant had been absent from work for three weeks before informing his employer that he had a grievance. The Respondent denied bullying, harassment and stress.

5. The Applicant was a process operative for the Respondent, which provided free transport to and from work.

6. The Respondent contested the Applicant's complaints before the Tribunal on 21 April 2004. The Tribunal sat at approximately 1.15pm, and heard evidence from Mr William Gallagher, a full time official of the Bakery, Food and Allied Workers' Union. The Applicant also gave evidence. From this evidence, the Tribunal finds the Applicant was earning £190 gross per week and £160 nett per week with the Respondent. The Tribunal heard evidence of the Applicant's treatment under the line management of Mr Spencer Marshall, and how this treatment caused upset and stress to the Applicant. The Applicant was cross-examined at some length as to his lengthy absence record owing to sickness, and the fact that he was a recovered alcoholic. The Applicant has not taken alcohol for over two years, and never whilst employed by the Respondent.

7. Because of this treatment under Mr Marshall, Mr Gallagher wrote the Respondent on 22 July 2003 and 30 July 2003, seeking to accompany the Applicant to a meeting to discuss his concerns with Respondent management. The Respondent did not respond to Mr Gallagher's letters. The Respondent wrote to the Applicant on 11 July 2003 to require him to attend an interview on 18 July 2003 concerning his absence from work. By letter dated 21 July 2003, the Applicant set out his concerns to the Respondent. The Respondent replied to this letter by letter dated 24 July 2003. The Applicant again wrote the Respondent on 30 July 2003 to advise as to his availability to attend a meeting with management, and stated he would be accompanied by his Trade Union official. By letter dated 5 August 2003, the Respondent offered to meet with the Applicant at noon on 7 August 2003. This letter stated that the Applicant should attend alone, since the matters under discussion were internal matters. Since he was not permitted to be accompanied by his Trade Union representative, the Applicant did not attend the meeting on 7 August 2003. The Applicant was dismissed by letter dated 8 August 2003, ostensibly because he had failed to make himself available for work. By that date, the Respondent had not sought medical corroboration of his condition, or its prognosis, and did not offer him the right to appeal his dismissal.

8. Following his dismissal, the Applicant did not receive Job Seekers' Allowance, or any other benefits. The Applicant sought a placement on the New Deal re-training programme on 8 October 2003, and actively pursued appointment with the relevant government department from 10 October 2003 onwards. He was offered a place on the New Deal Programme on 13 October 2003, and this became available on 5 January 2004, and will last six months. On this programme, the Applicant earns £15 per week. His placement on this course requires him to spend £4 per week on public transport fares. He has had no other income from 8 August 2003, lives in an area of high unemployment, and cannot drive a car.

9. Having contested the case before the Tribunal for three hours, Mr Steer then conceded before us that;

(i) Pursuant to Article 12(1) of the 1999 Order, the Applicant presented a proper and

valid grievance on 22 July 2003; and

(ii) The Applicant had the right to be accompanied at the hearing on 7 August 2003 by his Trade Union official, pursuant to Article 12(2) of the 1999 Order; and

(iii) The Applicant was automatically unfairly dismissed on 8 August 2003, pursuant to Article 135(1)(b) of the Employment Rights (NI) Order 1996 ["the 1996 Order"].

10. Despite these concessions, the Respondent continued to argue that the Applicant had contributed to his dismissal, pursuant to Article 157(6) of the 1996 Order. In the alternative, the Respondent indicated it would argued that, pursuant to Polkey v. Dayton Services Ltd [1988] AC 344, it would seek to argue the Applicant would have been dismissed in any event owing to his poor attendance record. Ultimately, however, this latter line of argument was not pursued before us.

The Decision of the Tribunal:

11. Having considered the Originating Applications, Notices of Appearance, all the oral and documentary evidence before it, and the concessions and submissions made by the parties, the Tribunal determines as follows;

(i) Pursuant to Article 12(1) of the 1999 Order, the Applicant presented a proper and valid grievance on 22 July 2003; and

(ii) The Applicant had the right to be accompanied at the hearing on 7 August 2003 by his Trade Union official, pursuant to Article 12(2) of the 1999 Order; and

(iii) The Applicant was automatically unfairly dismissed on 8 August 2003, pursuant to Article 135(1) (b) of the 1996 Order.

(iv) The Tribunal determines that there is no evidence the Applicant would have been fairly dismissed for any other reason.

(v) Pursuant to Article 157(6) of the 1996 Order, the Tribunal determines the Applicant did not cause or contribute to this dismissal;

(vi) Pursuant to Article 157(4) of the 1996 Order, the Tribunal determines the Applicant did not fail to mitigate his loss. The Tribunal is satisfied that the Applicant quickly registered for a New Deal placement after his dismissal, and secured a place on this programme from 5 January 2004. This placement will last for six months.

(vii) Pursuant to Article 157 of the 1996 Order, the Tribunal considers it just and equitable to order the Applicant to be compensated as follows;

(A) Order of two week's pay made pursuant to

Article 13(3) of the 1999 Order = £ 320.00

(B) Loss of income from 9 August 2003 –

4 January 2004 (21 weeks)

£160 x 21 = £3360.00

Future loss of income from 5 January

2004 – 5 July 2004 (26 weeks) = £4160.00

£15 New Deal Earnings x 26 = £390.00

£4 x26 public transport = £104.00

Less Total Nett Income = £286.00= £ 286.00

Total Compensatory Award = £7234.00

(C) TOTAL MONETARY AWARD (A) + (B) = £7554.00

=======

(viii) Pursuant to Rule 14(1) of Schedule 1 to the 2004 Rules, the Tribunal determines that the Respondent has conducted its case before us in an unreasonable manner. In particular, the Respondent did not seek to depart from its assertions as contained in its Notices of Appearance at the outset of the Tribunal hearing. Likewise, the Tribunal did not appreciate the fact that the Respondent cross-examined the Applicant on sensitive matters which bore no relation to the reason why he was subsequently dismissed, and that it then conceded the case before us after some three hours of evidence. Whilst we appreciated the courtesy and professionalism shown us throughout by Mr Steer, the Tribunal saw no merit in any of the Respondent's submissions, which it regards as vexatious. The Tribunal regarded the Respondent's conduct of these proceedings as exceedingly unreasonable, and pursuant to Rule 14(3) (a) of the 2004 Rules makes an Order for the Applicant's costs in the amount of £1000.00.

(ix) No further or other Order is made.

The Applicant did not receive any benefit to which the Employment Protection (Recoupment of Jobseekers & Income Support) Regulations (NI) 1996 applies.

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

Chairman:

Date and place of hearing: 21 April 2004, Belfast

Date decision recorded in register and issued to parties: