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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McIlhennon v Castle Engineering & Construction Company Ltd [2007] NIIT 2563_06 (23 May 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/2563_06.html Cite as: [2007] NIIT 2563_6, [2007] NIIT 2563_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2563/06

CLAIMANT: Conor McIlhennon

RESPONDENT: Castle Engineering & Construction Company Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. Subject to recoupment, the tribunal awards compensation in respect of this unfair dismissal of £9,372.00.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr McKenna

Mr Grant

Appearances:

The claimant was represented by Mr Philip McIlhennon, the claimant's father.

The respondent was represented by Mr Aaron McVitty.

REASONS

1. In the matter the claimant lodged with the Office of the Tribunals a claim form dated 17 November 2006. The claimant claimed "unfair dismissal". The claimant named in that claim as respondent, "Castle Engineering and Construction Ltd. - owner Aaron McVitie". By a response dated 17 October 2006 (which date must presumably be an error on the respondent's part) received by the Office of the Tribunals on 29 December 2006, the respondent, Castle Engineering and Construction Company Ltd, conceded that the claimant had been employed and had been dismissed. It was contended that the dismissal had been by reason of conduct as the claimant had "walked off the job". Accordingly, the tribunal had to confirm the correct identity of the respondent and whether or not the claimant had been fairly or unfairly dismissed. If the claimant was found to have been unfairly dismissed, the matter of appropriate remedy had to be determined by the tribunal.
2. The evidence before the tribunal consisted of the oral evidence of both the claimant and also of Mr McVitty on behalf of the respondent company. The tribunal also received into evidence documentation consisting of an indexed bundle of documents prepared by the claimant. Certain other documents were also submitted in evidence, by agreement.

THE TRIBUNAL'S FINDINGS OF FACT

3. On foot of the evidence adduced before it, on the balance of probabilities the tribunal found the following facts to be established:-

(a) Mr Aaron McVitty was the managing director of a company of limited liability known as "Castle Engineering and Construction Company Ltd". That company entered into a contract of employment with the claimant on or about 6 June 2005. That company is the proper respondent in these proceedings, as employer. The respondent company provided various commercial and support services on behalf of Belfast Telegraph Newspapers Ltd. These services included newspaper dispatch services from that newspaper's depot in central Belfast. It was at that location that the claimant was employed, as a "dispatch team leader", at the material time.

(b) The respondent's evidence regarding the contract terms was not entirely satisfactory. Initially Mr McVitty suggested to the tribunal that the claimant had been retained (as he stated apparently were all employees) on foot of a one-year fixed term contract; that type of contract was intended to be renewed upon the expiry of the one-year period. The claimant denied that to be the case. However, even if that had been correct, the claimant's contract nonetheless appeared to have "rolled over" into the following year without any comment or action being taken. Certainly, the claimant regarded his contract as being of no fixed term duration.

(c) Mr McVitty's evidence was that the contract was intended to be governed both by a one-page written statement of main terms of conditions of employment and also by an "employee handbook". He provided to the tribunal a one-page document stating that the claimant had received a copy. However, the stated "employee handbook" was not in evidence before the tribunal. The claimant denied any knowledge of that at all. The tribunal is satisfied from all of the evidence that the claimant was not provided by the respondent with any written statement of terms and conditions of employment incorporating such things as disciplinary and grievance procedures.

(d) On 7 October 2006 the claimant was apparently tasked to work a shift starting at 6.00pm and apparently continuing until 6.00am, if there was work still to be performed. From the evidence it seems to be the case that the claimant was enabled to leave work early if the work had been completed by that time, perhaps as early as 2.00am or so. Mr McVitty attended the place of work that day and he spoke with the claimant in the early part of that evening.

(e) At midnight on that evening, or a short time before that, Mr McVitty had positioned himself sitting in a parked car in the vicinity of the work premises. He observed the claimant leave the place of work and walk across the road to a licensed premises called "Frames". It was common case between the claimant and Mr McVitty that the claimant had left the place of work shortly before midnight and had gone to and had remained in those licensed premises for at least 20 to 25 minutes (however Mr McVitty stated that the claimant was there for approximately 10 minutes longer than that).

(f) The claimant's contention was that the purpose of that visit to the licensed premises was to call a taxi. The stated reason for his leaving was that the claimant was at the time undergoing domestic difficulties and he had requested from a supervisor permission to leave work early in order to go to his girlfriend's house. He went to Frames to order a taxi. As this was a Friday evening, getting a taxi took the entirety of the time that he had remained in Frames, before the taxi arrived. The claimant contended that he then left Frames and took the taxi from a location just adjacent to Frames directly to his girlfriend's home. Mr McVitty's contention was that he had observed the claimant leave Frames in the company of another person, on foot, and that the claimant had walked past the car where Mr McVitty was positioned. Mr McVitty, for whatever reason, at the time made no endeavour to confront the claimant in order to seek an explanation as to why the claimant had gone into the licensed premises and why he was not at work.

(g) The following day, 8 October 2006, Mr McVitty called the respondent's team of employees, about five in all, who had been at work on the previous evening into his office and he asked if everything had been satisfactory the previous evening. He apparently received a reply from everyone in the affirmative. He then turned to the claimant and repeated the same question. Mr McVitty was assured by the claimant that everything was fine. Mr McVitty then indicated to the claimant, by means of whatever words the tribunal is not entirely certain, that he felt that things were not "fine". Whatever was the atmosphere at the time between Mr McVitty and the claimant, or whatever had been the dealings between the two at the time, the claimant must certainly have apprehended that he was about to face possible dismissal. This of course is rather curious as far as the tribunal is concerned in the light of the evidence actually heard and seen by the tribunal. The tribunal can only somewhat tentatively surmise that there might have been some "history" to the matter which, for whatever reason, was not in evidence before the tribunal.

(h) The evidence was certainly not as specific as might have been wished for but, nonetheless, the tribunal accepts that at that point in the conversation the claimant said the words to Mr McVitty, "so that's it then", to which Mr McVitty replied, "yes that's it". The claimant certainly construed these as being words of dismissal and he regarded himself as being summarily dismissed by the respondent at that point in time. In view of the concession made by the respondent that the claimant had indeed been dismissed on that date and at that time, Mr McVitty's words at the time must have been acknowledged by him as constituting acceptance that he was engaged in a dismissal of the claimant on behalf of the respondent company.

(i) All wages due to the claimant were fully paid up to that date of dismissal, 8 October 2006. The claimant then signed on for state benefits and he was in receipt of Job Seekers' Allowance. He continued to remain unemployed and in receipt of Job Seekers' Allowance from that time up to the date of the hearing. The claimant produced documentary evidence to the tribunal of his compliance with the procedures necessary to secure Job Seekers' Allowance by way of endeavours to seek employment and the tribunal inspected the documentation in regard to that.

(j) At the time of the dismissal the claimant had been continuously employed by the respondent company for one year; he was aged 24 and his gross pay was £280.00 per week and his nett pay was £225.00 per week.

(k) The tribunal did not need to determine any further material facts for the purposes of reaching its decision in the case.

THE APPLICABLE LAW

4. The following applicable law was considered by the tribunal.
5. .1 The Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides at Article 126 that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.
6. .2 If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award, under Article 153 of the 1996 Order, and a compensatory award under Article 157 of the 1996 Order, the compensatory award being such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.
7. .3 The Employment (Northern Ireland) Order 2003 ("the 2003 Order") has included amongst provisions becoming operative from 3 April 2005 the following Articles:-

Article 15(1), in relation to statutory dispute resolution procedures.

Article 17(1) to (5), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals.

Article 23, in relation to procedural fairness in unfair dismissal.

8. .4 Some detail of the foregoing provisions, with the tribunal's own emphasis in bold lettering, is as follows:-

"15. —

(1)   Schedule 1 (which sets out the statutory dispute resolution procedures) shall have effect."

"17. —

(1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.

(2) -

(3)   If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that—

(a)   the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b)   the statutory procedure was not completed before the proceedings were begun, and

(c)   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,

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent 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 per cent.

(4)   The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.

(5)   -

23. —

(1)   Part XI of the Employment Rights Order (unfair dismissal) shall be amended as follows.

(2)   After Article 130 there shall be inserted—




"Procedural fairness

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) the 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 if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order."

___

(5) In Article 154 (basic award: minimum in certain cases) after paragraph (1) there shall be inserted -

" (1A) Where -

(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),

(b) an award of compensation falls to be made under Article 146(4) and

(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,

the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.

    (1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.".

9. .5 Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures. Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures. Such procedures involve an employer providing to an employee a statement in writing regarding conduct, characteristics or circumstances which lead him to contemplate dismissing or taking disciplinary action against an employee. That statement in writing must be sent to the employee, and the employee invited to attend a meeting. A meeting must follow at which the employee has been given a reasonable opportunity to consider his response and to attend, and an appeal must be afforded to the outcome of any decision on the employer's part.
10. .6 The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 ("the 2004 Regulations"), insofar as material, provide as follows:

Application of dismissal and disciplinary procedures
     3.  - (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

There are various provisions contained in the 2004 Regulations concerning the non-applicability of the statutory procedures or, alternatively, circumstances in which the procedures do not apply or are treated as being complied with. These provisions are inapplicable on the facts of this case.




THE TRIBUNAL'S DETERMINATION

11. In this case the claimant has been summarily dismissed by the respondent on grounds of alleged misconduct. That fact has been conceded by the respondent. Although the circumstances of the dismissal, to the extent of the evidence placed before the tribunal, are rather curious in terms of the words that appear to have been actually spoken (and it must be said that the tribunal does suspect that there might have been some "history" to the matter which was not fully disclosed to the tribunal), nonetheless there has certainly been a dismissal. Thus, applying the law, the tribunal has to determine whether the dismissal was fair or unfair. The tribunal first turned its attention to matters of procedural fairness.
12. In this case the contract was stated by Mr McVitty to have been governed by written terms and conditions. However, the tribunal has found as a fact that no written statement of disciplinary procedures or grievance procedures was at any time made available to the claimant. The claimant did not know were he stood contractually in regard to contractual disciplinary procedures. There was claimed to be some "handbook". However, on Mr McVitty's own evidence no one had ever asked to see that; Mr McVitty did not have a copy to be inspected by the tribunal. When questioned, Mr McVitty himself did not seem to be very much aware of any procedures that might have been contained therein.
13. There is no evidence of anything approaching what might be regarded as a full and proper investigation. Mr McVitty certainly appears to have placed reliance upon his own observation, as he claims, of the claimant attending the licensed premises on the evening in question. Any further evidence gathering on the part of Mr McVitty, prior to the dismissal, appears to have been confined to his asking at the group meeting the following day if there had been any problem the previous evening. That exercise was carried out in a public forum. No endeavour was made to put any specific allegations privately to the claimant. No endeavour was made to seek from the claimant any proper explanation or account. It has to be said that the procedure employed by Mr McVitty on behalf of the respondent departs to a very considerable extent from what would be the generally acknowledged and accepted proper and fair procedures for investigation of disciplinary matters and for the conduct of disciplinary hearings. The tribunal does not, it is felt, need to elaborate upon the point as the unfairness speaks largely for itself. There was a dismissal. That dismissal was quite unfair procedurally. Accordingly the claimant was unfairly dismissed in that regard by the respondent.
14. If the foregoing had not been the case, the facts occurred at a time (October 2006) when the provisions of the Employment (Northern Ireland) Order 2003 (" the 2003 Order") had been operative for well over a year, that is to say since 3 April 2005. Mr McVitty appears to have been entirely unaware of the existence of these statutory provisions and he appears not to have sought advice. There was certainly no endeavour whatsoever on the respondent's part to engage in any of the statutory dismissal procedures which were applicable. There was no argument advanced on behalf of the respondent grounded upon Article 130A(2) of the 1996 Order (that is to say the employer showing that he would have decided to dismiss the employee if he had followed the procedure), nor any argument concerning statutory enhancement of compensation (2003 Order Article 17 (3)(c) and 17(4)). Given that to be the case and for that reason, additionally, the dismissal is unfair on foot of Article 130A of 1996 Order.
15. In that situation, a discretion is afforded to the tribunal under Article 17(3)(c) of the 2003 Order to increase the minimum mandatory enhancement of compensation of unfair dismissal (that being set at a figure of 10% - and the exception provided by Article 17(4) does not apply on the facts) by an additional amount of up to 50%, if a tribunal thinks that it is just and equitable to do so. In this case, as is mentioned below, the tribunal sees no reason why it is not obliged to award the mandatory uplift in compensation of 10% for failure to follow the statutory procedures. However, the tribunal does not take the view that it is appropriate to afford any further enhancement. Accordingly the applicable figure is set at 10%.
16. Looking at the question of possible mitigation of loss or otherwise, whilst the tribunal has certainly reservations concerning the claimant's stated endeavours to obtain alternative employment, the tribunal does take note of the documentary evidence of the claimant's apparent adherence to the Job Seekers' Allowance requirements. That does carry a certain amount of weight. However there was no further evidence adduced by the claimant additional to this, save for the claimant's own oral evidence regarding his endeavours to obtain alternative employment. In the light of this the tribunal determines that compensation ought to be awarded from the date of dismissal up to the date of hearing, but not beyond that date. The claimant ought properly to have secured alternative employment by that latter date. That fact is therefore reflected in the compensation as is set out below.
17. The tribunal therefore finds that the claimant was unfairly dismissed by the respondent. The tribunal awards compensation in respect of this unfair dismissal as follows:-

BASIC AWARD

18. The claimant was employed by the respondent for one complete year at the time of dismissal. However Article 154 (1A) applies, taken together with Article 130A (1). The basic award is therefore four weeks' pay.

£280.00 x 4 weeks = £1,120.00

COMPENSATORY AWARD

19. The claimant's nett pay was agreed at a figure of £225.00 per week. The claimant was dismissed on 8 October 2006. He remained unemployed and was in receipt of Job Seekers' Allowance at the hearing date. It is therefore appropriate to award compensation for loss of earnings from the date of dismissal up to the hearing date, 23 May 2007. That is a period of 32 weeks.

The compensatory award is therefore as follows:-

32 x 225.00 = £7,200.00

The tribunal's award for loss of statutory rights is £200.00

The total for compensation is £8,520.00.

The statutory enhancement to be applied to the foregoing is 10% = £852.00.

The total compensation is £9,372.00.

RECOUPMENT OF BENEFIT FROM AWARD

20. The applicant did receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 apply. The following recoupment of benefit is therefore applicable in this case:

(a) Monetary Award: £9,372.00

(b) Prescribed Element: £7,920.00

(c) Prescribed Period: 8 October 2006 to 23 May 2007

(d) Excess of (a) over (b): £1,452.00

Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing: 23 May 2007, Belfast.

Date decision recorded in register and issued to parties:


 


Case Ref No: 2563/06

CLAIMANT: Conor McIlhennon

RESPONDENT: Aaron McVitty

ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME SUPPORT
21. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£
(a) Monetary award	9,372
(b) Prescribed element	7,920
(c) Period to which (b) relates:	8 October 2006 to 23 May 2007
(d) Excess of (a) over (b)	1,452

The applicant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker's Allowance or Income Support received by the applicant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker's Allowance or Income Support paid to the applicant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the applicant.

22. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
23. The applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the applicant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the applicant and regardless of any dispute between the applicant and the Department.