Kane v Frank Cullen t/a Mercury Secur... [2009] NIIT 211

THE INDUSTRIAL TRIBUNALS

CASE REF: 00211/09

CLAIMANT: Tomas Kane

RESPONDENT: Frank Cullen t/a Mercury Security Management

DECISION

The unanimous decision of the Tribunal is that the claimant was unfairly dismissed and the respondent is ordered to pay the sum of £13,959.00 to the claimant. The Tribunal also declares that the claimant’s claim for unauthorised deduction from wages in the sum of £1,434.00 is well founded and the respondent is ordered to pay this sum to the claimant.

Constitution of Tribunal:

Chairman: Ms Crooke

Members: Mr McAuley

Mr Hunter

Appearances:

The claimant was represented by his mother, Mrs Kathleen Kane.

The respondent was represented by Mr T Sheridan of Peninsula Business Services Limited

Sources of Evidence

The claimant gave evidence on his own behalf. The respondent also gave evidence on his own behalf and one of his employees Mr Ronnie Heaney gave evidence to the Tribunal. Additionally the Tribunal had a book of largely agreed documents before it. The claimant had reservations about the notes made by way of diary entries by both Mr Heaney and Mr Cullen and these were put to Mr Heaney and Mr Cullen in the course of evidence.

The Claim and the Defence

The claimant claimed that he had been unfairly dismissed. The respondent denied this.

The Relevant Law

The relevant law is found in Article 130 and Article 130A of the Employment Rights (Northern Ireland) Order 1996. Article 130 states as follows:-

130.— (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 reason (or, if more than one, the principle reason) for the dismissal, and;

(b) that it is either a reason falling within paragraph 2 or;

(c) some other substantial reason of a kind such as to justify the dismissal of an employee holding a 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 a kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision.

Article 130A states as follows:-

(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 and

(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 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 for procedure set out in Part 1 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 the Order.

It was apparent to the Tribunal at the commencement of the hearing that the respondent was actually a sole trader and accordingly the title to the proceedings was amended to reflect this.

Findings of Fact

1. The respondent owns a security firm undertaking security contracts for a wide variety of clients.

2. The claimant was employed by the respondent as a security guard from 13 September 2006 to 13 October 2008.

3. The claimant became ill on 14 April 2008. On 2 July, 2008, his doctor issued him with a return to work certificate by which he was available to start work on 7 July 2008. The claimant provided this certificate to the respondent and made various attempts to get in touch with Mr Ronnie Heaney the Operations Manager of the respondent. All attempts to contact him being unsuccessful, the claimant finally made contact with the owner of the business Mr Frank Cullen. The claimant was offered work at the Kennedy Centre in Belfast and told Mr Cullen that he required to be paid from 7 July 2008 until 16 August 2008, being the time for which he was available for work but during which he had not been allotted any jobs to carry out by the respondent. There was a divergence in the evidence between the story told by the respondent and the story told by the claimant in respect of this meeting. The claimant considered that he was asking for wages due to him. Mr Cullen considered that the claimant was in fact asking for a “loan or advance” on his salary which he had done before.

4. The claimant worked in the Kennedy Centre from 16 August 2008 until 11 October 2008. The claimant was removed from the Kennedy Centre due to an incident involving his ex partner. This individual appeared at the Kennedy Centre and made considerable threats against the claimant. This took place on Saturday 11 October 2008, and on 14 October 2008 Mr Heaney asked the claimant to meet him and at that meeting told him that he would be removed from the Kennedy Centre as a result of the incident on 11 October 2008.

5. The claimant’s mother contacted Mr Cullen and tried without success to persuade him to ask the Kennedy Centre management to allow the claimant to once more be a guard at that centre.

6. There was a further divergence in the versions of events of Mr Heaney and the claimant. It was common case between the parties that the claimant had been offered a new position with the respondent as a guard in Citylink Business Park. This involved working shift hours both day and night with a 60 hour week. The claimant, on Mr Heaney’s version of events, indicated that this would not suit him because it would cause difficulties with access to his child. That being the case Mr Heaney said that there were two sites left, one at Thaxton Mill and one at Shaft Seven. Both of these were refused by the claimant on the grounds of his health. However, the claimant indicated that he would have been very pleased to take up the Citylink Business Park job and that Mr Heaney had told him that as his access only involved one night a week, that he could work around it. The claimant was expecting Mr Heaney to telephone him back to make arrangements. While the claimant did explore the option of Shaft Seven which he rejected on the grounds of his health as it would have caused him difficulties with his eczema and asthma, the claimant contended that he knew nothing of being offered a position at the Thaxton Mill site. However the claimant was not contacted by Mr Heaney and not able to make contact with Mr Heaney. Therefore, he raised a grievance in writing by letter dated 25 November 2008 and directed this to Mr Frank Cullen the respondent. Very briefly, the grievance referred to his removal from the Kennedy Centre and asked for him to be paid for the salary lost from 13 October 2008 onwards. He also referred to letter and medical certificate signing him off as available for work from 7 July 2008 asking thus to be paid for the period during which he had not been given any assignment from 7 July 2008 to 16 August 2008. The respondent did not comply with the statutory procedures in that no action was taken to offer the claimant a hearing of his grievance. The respondent did not even comply with his own procedures as the provisions of the claimant’s written contract of employment provided that:-

“should you have a query or complaint regarding your employment you should raise the matter initially with the regional manager R Heaney. You may, if so desired, be accompanied by a fellow employee. If you fail to get a satisfactory reply, or do not receive a reply within three working days, you may then raise the matter in writing with Frank Cullen, who will arrange to hear the grievance within five working days. You may, if so desired, be accompanied by a fellow employee.”

7. Both Mr Cullen and Mr Heaney took the view that the claimant did not want to work and simply ignored him.

8. It transpired that the respondent, although he had completed its response form stating that the claimant was still employed, at the opening of the hearing of this claim, changed his position and indicated that a P45 had been sent to the claimant in and around 30 November 2008. The claimant contended that this had not happened. He said that he had not received it and had not been able to obtain any benefits as a result.

9. Both Mr Heaney and Mr Cullen accepted that they have not taken any steps to inform themselves about the nature and extent of the claimant’s health difficulties involving eczema, asthma and allergies. Neither did they look at making any adjustments to allow the claimant to work perhaps in an environment that would not at first sight have been suitable to him as a result of his health difficulties.

10. No query or criticism was made by Mr Cullen concerning the claimant’s work performance.

Conclusions

11. Under Article 130 of the Employment Rights (Northern Ireland) Order 1996, it is for the respondent to prove the reason why the claimant was dismissed from employment. It was plain from the evidence that a decision had been taken by Mr Heaney and Mr Cullen that the claimant did not want to work. This decision was taken without any steps being taken to discuss the matter with the claimant. The respondent clearly ignored the statutory grievance procedure which requires a meeting to be held after a letter of grievance has been submitted. The respondent plainly did not follow his own procedure which also provided for Mr Cullen to hold a hearing. Mr Cullen, despite claiming a familiarity with the requirements of employment law in this jurisdiction, admitted that he had not held this hearing. The only reason given for this was that he concluded from the reports he had been given (presumably by Mr Heaney) that the claimant did not wish to work anymore for him.

12. It is settled law that if a claimant has a medical condition which prevents him working, which was the case in this claim, the employer should take steps to inform himself as to the nature of the condition of the employee. This can be done in two ways. The respondent could have obtained a report from the claimant’s General Practitioner or other attending physician, or have the claimant medically examined by his own physician of choice. This was not considered. Secondly, the respondent is supposed to consult with an employee in this position. Plainly this did not happen. On the respondent’s admission, he did not hold a hearing and simply decided himself, to a greater or lesser extent on information provided to him by Mr Heaney, that the claimant did not wish to work.

13. We conclude that the reason for the dismissal was the respondent’s view that the claimant did not wish to work, and this is not a reason falling within Article 130 (2) of the Employment Rights (Northern Ireland) Order 1996. We also conclude that this reason could not be characterised as “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” Had the respondent dismissed the claimant at the time of the Kennedy Centre incident, which involved him being removed from his job at that centre by the request of the Kennedy Centre management, we might have taken a different view. However as it transpired, the claimant was offered employment in other areas, (on the claimant’s version of events) in Shaft Seven and the Citylink Business Park, (on the respondent’s version of events Shaft Seven), the Citylink Business Park and the Thaxton Mill development.

14. We also consider that pursuant to Article 130A of the Employment Rights (Northern Ireland) Order 1996 the failure to complete the statutory procedure was wholly attributable to failure by the employer to comply with its requirements. As we have decided that the respondent has not proved the reason for the dismissal as falling within Article 130(1)(b) or (2), the considerations in Article 130A(2) simply do not arise.

15. Pursuant to Article 17 of the Employment (Northern Ireland) Order 2003, we consider that it is fair that the claimant’s compensation is uplifted by 10% to reflect the fact that the employer failed to comply with the statutory grievance and disciplinary procedures. The claimant was simply dismissed by way of a P45 being served upon him, although the claimant contends that this was not received. There was no letter setting out the reasons for the dismissal and there was no hearing and this is plainly a breach of the statutory requirement of procedural fairness.

Compensation

Basic Award

The claimant is entitled to a basic award which is calculated as follows:-

Weekly wage of £270 (gross) multiplied by claimant’s service of two complete years and a multiplier of one

= £540.00

Immediate Loss

The claimant claimed for periods from 7 July to 16 August 2008 from 13 October to 28 November 2008 and from 28 November 2008 to 31 July 2009.

As the first period was the period during which the claimant was clearly employed but not given any work to do by the respondent, this is being dealt with under a separate head of claim, see below. Therefore the immediate loss period is a period of 42 weeks

42 weeks x £239(net wages per week) = £10,038.00

The claimant did not claim any benefits.

Future Loss

The claimant indicated that he had an excellent chance of a job with another security company in autumn 2009 and indicated that it would take him at most eight weeks to achieve a comparable job. Accordingly the Tribunal is awarding him future loss at the rate of:

£239 per week x 8 weeks = £1,912.00

Loss of Statutory Rights

The claimant will have to work a full year to once again accrue the right not to be unfairly dismissed. The Tribunal awards the sum of £200 to reflect this.

Failure to Mitigate

It was strongly argued by the respondent that the claimant had failed to mitigate his loss and should not be fully compensated as a result. Whilst the Tribunal did not have before it any tangible evidence of the claimant trying to achieve other jobs, the Tribunal does not consider that the claimant should be penalised for this. He has honestly indicated that he has a good chance of another job in eight weeks and has therefore plainly made some effort towards achieving another job. The Tribunal also considers that the respondent has treated the claimant in an unsatisfactory fashion. It was only at the opening of this claim that the respondent contended that the claimant had been dismissed by him. Bearing in mind that the respondent’s representative came on record on 13 February 2009 we consider that it is not satisfactory that it was only at the opening of the claim that this concession was made. We also consider that to simply ignore the claimant as Mr Heaney and Mr Cullen undoubtedly did, was not satisfactory, and we do not consider that the claimant should be subjected to any further detriment by way of loss of compensation.

The claimant contended that as he had not received a P45, he was not able to claim benefit and thus no question of recoupment arises. Although the Tribunal notes that the respondent says it was posted to the claimant in and around 30 November 2008, the fact that it was only on the opening of the claim on 12 June 2009 that this was apparently discovered, makes the claimant’s version of events, more likely than not on the balance of probabilities to be correct.

Summary of Compensation

Basic Award = £540.00

Immediate Loss = £10,038.00

Future Loss = £1,912.00

Loss of Statutory Rights = £200.00

__________

Subtotal = £12,690.00

Multiplied by 10% in accordance with Article 17

__________

Total Award of Compensation = £13,959.00

Unauthorised Deduction from Wages

As there was nothing in the claimant’s contract of employment that overtly justified the claimant not being paid, when he was available for work, and employed by the company purely because the company had not given him an assignment, the Tribunal believes that the claimant should receive his six weeks net pay as claimed:

= £1,434.00

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

Chairman:

Date and place of hearing: 12 and 15 June 2009, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kane v Frank Cullen t/a Mercury Secur... [2009] NIIT 211_09IT (05 August 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/211_09IT.html Cite as: [2009] NIIT 211_09IT, [2009] NIIT 211_9IT

Industrial Tribunals Northern Ireland Decisions