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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Patton v Stephen Bell, Chairperson Mark Langhammer, Committee mem... John Linton, Committee member [2011] NIIT 01299_11IT (10 November 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01299_11IT.html Cite as: [2011] NIIT 1299_11IT, [2011] NIIT 01299_11IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1299/11
CLAIMANT: Lester Patton
RESPONDENTS: 1. Stephen Bell, Chairperson
2. Mark Langhammer, Committee member
3. John Linton, Committee member
SUED ON BEHALF OF: Crusaders Football, Athletic & Sports Club
DECISION
It is the unanimous decision of the tribunal that the claimant was automatically unfairly dismissed and that in breach of his contract of employment the respondent failed to pay the claimant wages due for 6 March 2011. The respondent shall pay the claimant £6,803.60.
Constitution of Tribunal:
Chairman: Ms M Bell
Members: Mr I Lindsay
Mr M McKeown
Appearances:
The claimant appeared and represented himself.
The respondent did not appear and was not represented.
1. The claimant in his claim complained that he had been unfairly dismissed by the respondent for gross misconduct without an investigation or proper procedures being followed and had not been paid wages due for working on 6 March 2011.
2. No response to the claim has been presented by the respondent in accordance with the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
3. Based on the claimant’s evidence that his employer was Crusaders Football, Athletic & Sports Club and that the committee members include Mr Stephen Bell as Chairperson, Mr Mark Langhammer and Mr John Linton, the title of respondent is accordingly amended from ‘Alex Cromie Bar Manager, Crusaders Social Club’ to ‘Stephen Bell, Chairperson, Mark Langhammer, Committee member, John Linton, Committee member, SUED ON BEHALF OF Crusaders Football, Athletic & Sports Club.’
ISSUES FOR TRIBUNAL
4. The issues before the tribunal were:-
· Was the claimant unfairly dismissed?
· Has the respondent failed to pay the claimant wages due to him?
EVIDENCE
5. The tribunal considered the claim, documentation provided by the claimant and heard oral evidence from the claimant.
FINDINGS OF FACT
6. The claimant, born on 27 May 1955 was employed by the respondent from September 2009 as a bar person in the respondent’s social club. The claimant worked five, six hour shifts per week and was paid £177.90 gross per week being £160.00 net.
7. Shortly after the claimant arrived at work on 8 March 2011 he was called by the respondent’s bar manager, Mr Alex Cromie, into the respondent’s boardroom and informed that the respondent did not need him anymore. A conversation followed in which Mr Cromie accused the claimant of taking drink and not putting money into the till for people taking drink, he put to the claimant that he could ‘go the easy way and go quietly’ or that he could get the police in. The claimant was shocked and replied that he would go quietly, at which he left.
8. Subsequently having not heard anything further from the respondent , the claimant wrote to Mr Bell:-
‘I am writing this letter due to what I believe was my unfair dismissal by Crusaders Social Club last Tuesday 8 March 2011.
When I arrived on Tuesday afternoon for my shift at 1pm I started work as normal. After 2 pm Alex Cromie called me into the boardroom to tell me that I was no longer needed & my employment had been terminated. When I asked Alex what the reason for this, he stated that somebody had informed him that I had been serving drink but had not been putting the money in the till for it, in other words that I was stealing. I asked Alex to tell me who had told him this & Alex said that he couldn’t tell me. I then told Alex that I would be going to see somebody about this & he said ‘You can go quietly or I can get the police.’
The reason I feel that this dismissal was unfair is because I have never received any kind of warning either verbal or written whilst working for the club.
No proper investigation was held as to whether these allegations against me were founded. According to employment law the employer has to believe that the employee is genuinely guilty of the offence. So I would like to know whether Crusaders Social Club believes that I am guilty of this offence?
Please take this letter as written confirmation that I am appealing the termination of my employment and would like to arrange a meeting regarding this.’
9. Mr Bell replied to the claimant by letter dated 4 April 2011 and advised him that a disciplinary sub-committee of the board would consider his case at a disciplinary hearing at the Seaview Boardroom on 27 April 2011, that he was invited to attend and was entitled to be accompanied by a work colleague.
10. The claimant replied by undated letter to Mr Bell indicating that he had since taken employment advice and was now putting in for a grievance appeal. He stated that he believed that he had been treated very badly, that he had suddenly been taken into the boardroom on 8 March 2011 and accused of dishonest dealings, that he was ‘very, very shocked’, that he had to write to the respondent as he had heard nothing, that procedures had not been followed, no investigation or statements were put to him to allow him to then to put his side of the case, that he refuted any dishonest dealings and requested a copy of the grievance and disciplinary procedures before the meeting on 27 April 2011.
11. The claimant, accompanied by Ms Diane Robinson, his partner and work colleague, attended the disciplinary hearing on 27 April 2011 chaired by Mr Langhammer with Mr Bell and Mr Linton also on the disciplinary panel. Mr Cromie was also in attendance. The claimant on a date after the disciplinary hearing was provided with typed copy notes prepared by the respondent as a record of the meeting, although he could not recollect when. The claimant confirmed to the tribunal and the tribunal finds that the notes were an accurate record of the proceedings on 27 April 2011, albeit that he did not agree with the accusations made against him therein. In the opening remarks the notes state ‘ML opened the appeal hearing advising that the hearing would be conducted under the auspices of statutory grievance procedure…’
12. Mr Langhammer wrote to the claimant on 3 May 2011, ‘Further to your Disciplinary Appeal hearing held on 27th April 2011, I am writing to advise that the original decision to terminate your contract on grounds of misconduct was upheld. The panel considered that, as no credible explanation had been advanced in respect of missing bar stock, or in respect of specific instances on 3 March 2011,we had no alternative but to dismiss your appeal.’
13. The claimant replied to Mr Langhammer by letter dated 10 May 2011 stating that he had taken advice and that:-
‘Firstly, there should have been an investigation into the alleged misconduct. Your report should have been given to me before the Disciplinary Meeting on 27 April so that I could prepare my response.
Secondly, I am entitled to a copy of the Disciplinary Procedures which I have requested and not been given.
Thirdly, I should have been given the minutes of the meeting on 27 April 2011 which I have not received.
Fourthly, I put in an application for a grievance meeting which is important if I have to go to an Industrial Tribunal and you have not referred to this.
Fifthly, you refer to the Disciplinary Appeal hearing held on 27 April 2011. This was a first Disciplinary Hearing and I am entitled to an appeal now.
Lastly, and most importantly of all allegations have been made against me for Gross Misconduct and to date I have not been given a shred of evidence. I await your immediate response.’
14. The claimant in the absence of a response from the respondent presented his claim to the tribunal on 3 June 2011.
15. The claimant worked for the respondent on 6 March 2011 but was not paid in respect thereof.
16. The claimant following his dismissal made a claim for jobseekers allowance.
17. The claimant confirmed at hearing that he sought by way of remedy compensation only.
THE LAW
Statutory Minimum Procedures and Unfair Dismissal
18. Under Regulation 3(2)(d) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 the modified procedure contained in Schedule 1, Part 1, Dismissal and Disciplinary Procedures, Chapter 2 of The Employment (Northern Ireland) Order 2003 is the statutory dismissal procedure required to be followed as a bare minimum by an employer 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 consists of two steps:-
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Step 1: Statement of grounds for action
The employer must:-
(a) Set out in writing:-
(i) the employee's alleged misconduct which has led to the dismissal,
(ii) what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and
(iii) the employee’s right to appeal against dismissal, and
(b) Send the statement or a copy of it to the employee.
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Step 2: Appeal
(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the appeal meeting, the employer must inform the employee of his final decision.
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19. By virtue of Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined, however under Article 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 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;
(b) 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. Where an Industrial Tribunal
finds that the grounds of a complaint of unfair dismissal are
well-founded the Orders it may make by way of remedy are set out at Article 146
of the 1996 Order and include reinstatement, or re-engagement, and otherwise
compensation. How compensation is to be calculated is set out at
Articles 152 to 161.
20. Under Article 154(1) of the 1996 Order where an employee is regarded as unfairly dismissed by virtue of Article 130 A(1) and the basic award would amount to less than 4 week’s pay, the award is increased to the amount of 4 weeks pay unless that increase would result in injustice to the employer.
21. There is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which includes Article 145 of the 1996 Order (Unfair Dismissal)] 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 (subject to paragraph (4) therein) 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%.
22. 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 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.
APPLICATION OF LAW TO THE FACTS FOUND
23. The tribunal is satisfied that the modified procedure under the statutory dismissal and disciplinary procedures was applicable but based on the claimant’s undisputed evidence the procedure was not completed at the fault of the respondent in that it did not, after the claimant’s dismissal, set out in writing to him the alleged misconduct which had led to his dismissal, what the basis was for thinking at the time of the dismissal that the claimant was guilty of the alleged misconduct, and the claimant’s right of appeal against his dismissal and send a copy of it to the claimant. The tribunal finds that whilst the respondent did subsequently hold what it first referred to as a disciplinary meeting, but later referred to as an appeal meeting, this was only arranged after written request by the claimant and that the claimant was still not provided prior to that meeting with the information required at step one under the modified procedure, that the claimant as such was not given the opportunity to properly prepare for and to present his case at that meeting and despite writing to the respondent pointing out shortcomings in its procedures steps were not taken to remedy these.
24. The tribunal finds that the claimant’s dismissal was automatically unfair under Article 130A (1) of the 1996 Order, the non-completion of the applicable dismissal procedure being wholly attributable to the failure by the respondent to comply with its requirements.
25. As the claimant’s basic award would amount to less than four weeks pay the tribunal increases the basic award to an amount equal to four weeks pay under Article 154 of the 1996 Order.
26. The tribunal has considered what might have resulted had fair procedures been complied with but based on the claimant’s undisputed evidence and in the absence of a response having been presented in accordance with the rules the tribunal is not satisfied on a balance of probabilities that the dismissal would have occurred in any event nor that any reduction in compensation is appropriate.
27. The tribunal furthermore considers that it is just and equitable in all the circumstances of this case to increase the compensatory award for unfair dismissal by 20% under Article 17 of the 2003 Order in light of the respondent’s failure to comply with the statutory dispute resolution procedures.
28. The tribunal is satisfied on the claimant’s undisputed evidence that the claimant has not received, in breach of his contract of employment, pay for his six hour shift worked on 6 March 2011 amounting to £32.00 net.
29. The tribunal accordingly orders the respondent to pay the claimant compensation as follows:-
COMPENSATION FOR UNFAIR DISMISSAL
Basic Award
The tribunal orders the respondent to pay a basic award for unfair dismissal of four week’s gross pay under Article 154(1A) of the 1996 Order being £711.60.
4 weeks X £177.90 = £711.60
Compensatory Award
Loss of Earnings
The tribunal consider it just and equitable to award the claimant compensation from his effective date of termination 8 March 2011 up to the hearing date, say
30 weeks @ £160.00 = £4,800.00
Loss of statutory rights £250.00
Uplift under Article 17
Total compensatory award before uplift = £5,050.00
20% uplift = £1,010.00
Total compensatory award = £6,060.00
UNPAID WAGES
30. The respondent shall pay the claimant £32.00 in respect of outstanding pay.
CONCLUSION
31. The tribunal finds that the claimant was automatically unfairly dismissed by the respondent under Article 130A (1) of the 1996 Order and was not paid for work done on 6 March 2011 in breach of his contract of employment. The respondent shall pay the claimant the following compensation:-
BASIC AWARD: £711.60
COMPENSATORY AWARD: £6,060.00
OUTSTANDING PAY: £32.00
TOTAL £6,803.60
RECOUPMENT
32. This award is subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996. The attention of the parties is drawn to the notice below which forms part of this decision.
33. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
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£ |
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(a) Monetary award: |
6,803.60 |
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(b) Prescribed element: |
4,800.00 |
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(c) Period to which (b) relates: |
8 March 2011 – 4 October 2011 |
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(d) Excess of (a) over (b): |
2003.60 |
34. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 October 2011, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 1299/11
RESPONDENTS: 1. Stephen Bell, Chairperson
2. Mark Langhammer, Committee member
3. John Linton, Committee member
SUED ON BEHALF OF: Crusaders Football, Athletic & Sports Club
STATEMENT RELATING TO THE RECOUPMENT
OF JOBSEEKER’S
ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
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£ |
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(a) Monetary award |
6,803.60 |
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(b) Prescribed element |
4,800.00 |
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(c) Period to which (b) relates: |
08/03/11 – 04/10/11 |
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(d) Excess of (a) over (b) |
2003.60 |
The claimant 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 claimant in respect of that period; (b) is not payable until the Department of Social Development 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 claimant 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 claimant.
2. 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.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development 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 claimant, 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 claimant and regardless of any dispute between the claimant and the Department.
