Deazley v Kevin and Catoline Clarke T/A ... [2010] NIIT 6273

THE INDUSTRIAL TRIBUNALS

CASE REF: 06273/09IT

CLAIMANT: David Deazley

RESPONDENT: Kevin and Caroline Clarke T/A Oysters Restaurant

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and that his claim for unfair dismissal fails.

Constitution of Tribunal:

Chairman: Ms Sheils

Members: Mr Burnside

Mr Walls

Appearances:

The claimant was represented by Michael O’Brien of Counsel instructed by Patrick Fahy & Co. Solicitors.

The respondent was represented by Mr Neil Richard of Counsel instructed by Brendan Kearney Solicitors.

The Claim and the Response

1. The claimant lodged a claim form on 3 July 2009 claiming that he had been unfairly dismissed by the respondents. The respondents presented a response on 4 September 2009 denying that they had dismissed the claimant and stating that the claimant had resigned on 3 separate occasions.

Sources of Evidence

2. Witnesses

The Tribunal heard from Mr David Deazley and Mr Patrick Anthony Corrigan. The Tribunal also heard from Mr Kevin Clarke and Mrs Caroline Clarke.

Documents

3. The Tribunal was given a bundle of documents agreed by the parties.

The Issues in the Case

4.       The legal representatives agreed the following list of factual and legal issues:-

          Legal Issues

          (1)      Did the claimant resign or was he dismissed?

(2) If dismissed was it a constructive dismissal?

(3) If constructive dismissal was the claimant require to submit a grievance as a pre-condition to his claim?

(4) If the claimant dismissed was the dismissal automatically unfair?

(5) If the claimant is entitled to compensation should it be reduced on the basis of the decision in Polkey.

(6) If the claimant is entitled to compensation should it be reduced on the basis of the Provisions of the Employment (Northern Ireland) Order 2003.

Factual Issues

(1) Date of Employment

(2) Did the claimant resign verbally on 6, 7 or 8 April 2009 at any time on those dates. If so, was the respondent entitled to accept that resignation?

(3) Did the respondent validly accept that resignation?

(4) If claimant did not resign was he dismissed by the respondent? If so, when did that dismissal take place?

Overview

5. The parties in this case disputed almost every factual detail. For convenience, the Tribunal has set out the salient points of disagreement between parties and has addressed each of these in its findings of fact. The salient disagreement between the parties included the following:-

(1) The claimant’s period or periods of employment.

(2) The claimant’s rate of pay.

(3) The claimant’s work record/conduct during his employment.

(4) Events of the weekend of 4 and 5 April 2009.

(5) Details of the incident on 6 April 2009.

(6) The issue of whether the claimant was dismissed or resigned.

6. Also there were matters brought to the attention of the Tribunal by the respondents. On the morning of the first day of the hearing the respondents’ counsel advised the Tribunal that the respondents would not be bringing witnesses, as they believed that their witnesses were afraid of the claimant. On the resumption of the hearing(day three) the respondents’ counsel advised the Tribunal that a potential witness the respondents had thought they might rely on, given the claimant’s previous evidence, had been contacted by the claimant and told that he was not to bother to come to court as “it all seems to be going my way”. This allegation was subsequently put to the claimant who denied it.

7. The representative for the respondents also stated that it was the respondents’ contention that Mr Patrick Corrigan, witness for the claimant, was also afraid of the claimant and had agreed to give evidence only on an assurance from the claimant that he (Mr Corrigan) would be given a “cut” of the claimant’s compensation. Again, this was put to both the claimant and Mr Corrigan and it was denied.

Findings of Fact

8. The Tribunal found the following relevant facts either as agreed or proven on the balance of probabilities;

(1) The claimant whose date of birth was 20 September 1986 was employed by the respondents as a chef in their restaurant Oysters in Strabane. The claimant was first employed by the respondents in April 2007. It was the claimant’s case that he had been continuously employed by the respondent until his eventual departure in April 2009.

(2) However, it was agreed between the parties that there had been a break in the claimant’s employment. The claimant maintained that although he had left his employment in July 2007 he had returned again in November 2007. The claimant stated that the respondent had agreed that the claimant could leave their employ during that period between July 2007 and September 2007 to facilitate a curfew that had been imposed on the claimant by the Magistrates Court following his criminal charge of arson.

(3) The claimant stated that the respondent understood the difficulties abiding by the curfew that posed for the claimant and “allowed him” a period time away from work to alleviate those difficulties. The claimant went on to add that he had returned to work at Oysters in about November 2008.

(4) It was the respondent’s case that the claimant was first employed in April 2007 until July 2007 and was re-employed in February 2008 until April 2009. The respondents refuted the claimant’s statement that they had “allowed” him any such period of time off from his employment.

(5) The Tribunal concluded that the claimant had had two specific periods of employment with the respondents. In reaching this conclusion the Tribunal took into account the fact that the claimant was unclear as to the date on which he returned to work at Oysters in 2008 and was also unclear as to how long he had been absent from Oysters.

(6) On the other hand the respondents were quite clear that the claimant had left their employ in July 2007 on what they had understood to be a week’s holiday and had not returned to work for them again until February 2008.

(7) The Tribunal also took account of the fact that the claimant accepted that he had worked in the Everglades Hotel during his period of absence from Oysters. The claimant stated that the job in the Everglades was more convenient to him although the Tribunal was given no further evidence of why it was more flexible, what work rotas the claimant worked during this period of time or any other evidence to demonstrate how this work rota at the Everglades accommodated his curfew arrangements better.

(8) The claimant did produce a P45 from the Everglades Hotel dated November 2007 but was unable to provide any documentary evidence of his having resumed work at Oysters from November 2007 to February 2008.

Rates of Pay

9. The claimant stated that he had been paid £8.00 an hour for a 40 hour week during

Both his periods of employment at Oysters restaurant. The claimant further stated that he had always worked overtime in excess of 40 hours for which he was not paid. The respondents stated that the claimant had been paid at the minimum wage. They denied that the claimant had worked any unpaid overtime.

10. The Tribunal heard evidence from Mrs Caroline Clarke and saw payslips which indicated that the claimant was paid in accordance with the respondents’ evidence which was at the minimum wage.

11. The claimant alleged however that while his payslips suggested he earned less than £8.00 an hour that this was to be explained by the fact that the respondents were defrauding the Revenue by submitting false payslips indicating that he was paid at a lower rate while simultaneously paying him cash in addition to the stated pay. The respondents vehemently denied this allegation.

12. The Tribunal concluded that the claimant had earned the minimum wages as stated by the respondents. The Tribunal took into account that the claimant himself was not consistent on what he had earned during his employment at Oysters. The Tribunal noted that the claimant had stated in his claim form that he worked 50 hours at £435.00 gross per month and that subsequently the claimant stated in his evidence that he worked between 40-45 hours per week at £320.00 gross.

13. The Tribunal found that the claimant was, at best, inconsistent in his evidence in relation to his rate of pay. Further the Tribunal noted that the claimant did not adduce any evidence of the allegations of fraud. The Tribunal concluded that these allegations were made by the claimant to cast the respondents in a poor light with the Tribunal.

The claimant’s work record/conduct with the respondents

14. It was the claimant’s case that the respondents had been reasonable and fair employers up until April 2009 when the issue of the claimant’s uncompleted community service arose. It was only at this point when any difficulties arose between them and that otherwise he had been a reliable and good worker. The claimant stated that the respondents never had any occasion to speak adversely to him and that his work record with the respondents was unblemished until their disagreement in April 2009.

15. The respondents stated that throughout both periods of his employment they had found the claimant on the one hand a creative chef with a significant amount of flair while on the other hand frequently unreliable in terms of timekeeping and hygiene.

16. The respondents stated that they had sought to develop the claimant’s flair for cooking and his maturity at the same time. It was agreed between the parties that the respondents took the claimant to Trade Fairs and Cooking Fairs which the respondent saw as an investment in the claimant as a professional chef.

17. The respondents also stated, however, that there were occasions when the claimant did not show up for work, when the respondent Mr Kevin Clarke had to go to the claimant’s house to collect him. The respondent also stated that there were a number of occasions when they had to speak to the claimant about his timekeeping, his reliability and about his hygiene habits in the kitchen. These latter included his constant use of his mobile phone in the kitchen while cooking and other infringements of kitchen hygiene rules.

18. The respondents stated that they did not formalise any of the discussions they had with the claimant on the issues or take any informal or formal disciplinary actions against him.

19. The claimant denied all allegations of lateness, poor hygiene or poor performance.

20. The Tribunal concluded that the claimant’s work record and performance had been as described by the respondents. The Tribunal reached this conclusion on the basis that the alleged sudden change in attitude by the respondents towards the claimant when the issue of the claimant’s uncompleted community service arose was inconsistent with what was even the claimant’s case, that the respondents had been both reasonable and supportive of him as a chef and subsequently during his difficulties which arose from his conviction for arson.

21. The respondents stated that the claimant approached the respondent Mr Kevin Clarke in February 2008 saying that although he had been having some personal difficulties with his girlfriend he had very much settled down and was willing and eager to return to work for the respondent at Oysters.

22. The respondents decided to take the claimant at his word and hoped that he had settled down and re-employed him as a chef in February 2008. Again, throughout this period of employment from February 2008 through to his departure in April 2009 there was a conflict in the evidence between the parties in relation to the claimant’s behaviour during his employment.

23. The claimant stated that his punctuality, attendance and hygiene levels were no cause for concern. The claimant went on to state that there were no issues whatsoever between himself and the respondents up until Monday 6 April 2009 at which point the claimant stated the respondent suspended him as a result of a verbal exchange between them and subsequently dismissed him by letter dated 17 April 2009.

24. The respondents on the other hand stated that although the claimant’s behaviour was relatively good in the initial stages of his re-employment from February 2008 it was not long before his poor attendance, punctuality and bad hygiene habits began creeping in again. The respondents stated that they had occasion frequently to speak to the claimant about each of these matters and indeed again to have to go to the claimant’s house to bring him into work where he failed to turn up for his shift.

The claimant’s community service

25. In 2008 the claimant had been sentenced to 200 hours community service to be completed within 12 months. In or about February 2009 the claimant still had 180 hours to be completed within 6 weeks of that time. The claimant stated that it was around this time that the respondents’ attitude towards him changed leading to their dismissing him in April 2009.

26. The respondents stated that they only became aware in or about January or February 2009 of difficulties the claimant was having completing his community service. They stated that the claimant took to ringing the respondent late in the evening and saying that he was unable to attend work the next day due to his community service obligations. This had a disruptive impact on the work rota, leaving the respondents having to find cover at short notice. On the 6 April 2009 the respondents tried to establish what the claimant’s schedule of community service was so that they could plan the claimant’s work around it.

Events of the weekend prior to 6 April 2009

27. The evidence between the parties in relation to the weekend of 4 and 5 April 2009 was completely divergent. The claimant stated that he had worked both of those days and was paid for them. However, the respondent’s case was that early on the Saturday morning the claimant had contacted him by mobile phone and stated that he had an ingrown toenail and would not be coming into work. The respondent stated that he had asked the claimant to contact him later that day to confirm if he was going to be fit to attend work the next day.

28. The respondent stated that the claimant did not contact the respondent again to advise him when he would be next fit to work and that the respondent had thereafter re-arranged the rota and got cover (Pat Corrigan) for the claimant’s absence for the Sunday.

29. However the claimant then turned up for work on the Sunday. The respondent stated that as he had got cover for that day the respondent sent the claimant home on full pay. The respondent stated that the claimant was due back into work on Monday and that this was agreed with the claimant before going home on the Sunday.

30. The respondent also stated that on this occasion he asked the claimant to supply him with a copy of his community service rota so that the claimant’s requirements and responsibilities in relation to this could be taken on board by the respondent.

31. The Tribunal was shown a kitchen rota which purported to support the evidence of the respondent. This rota showed that Mr Patrick Corrigan had been down for leave on the Saturday and Sunday and the words “had to work for David” had been written beside Saturday and Sunday where the leave had been scored out. Beside the claimant’s name, against Saturday and Sunday, were the words “sick Sat sent home shift covered paid”.

32. The claimant also sought to rely on this document as he drew the Tribunal’s attention to the fact that the rota indicated he was on duty on the Saturday and Sunday and that he did not accept the added words “sick Sat sent home shift covered paid.” The claimant added that he had had an ingrown toenail but that this had occurred the week before and was not relied upon by him for any absence on the weekend of 4 and 5 April 2009.

33. However, the oral evidence in relation to this rota indicated that a number of people compiled this rota generally and that it was frequently scored out and written over as changes to the rota became necessary during the week.

34. The Tribunal concluded that it was unable to rely on the written rota given the fact that it was accepted by both parties that the rota was added to or changed during any stage by anyone as events unfolded.

35. However the Tribunal found that the claimant was unable to prove that he had been working on 4 and 5 April and brought no other evidence to the Tribunal that showed that he had done so. The claimant did not dispute the fact that the rota indicated that Mr Corrigan had worked that weekend instead of being on leave late. Additionally his witness, Mr Corrigan, did not confirm that the claimant had worked on those dates.

36. The respondents’ case in relation to the events of this weekend included their statement that the claimant had contacted Mr Kevin Clarke by mobile late on the evening of 5 April (Sunday), at approximately 10.30 pm to advise that he would not be in work on the Monday as he had to work some community service hours. The respondent stated that he asked the claimant for a rota in relation to these community service hours and that the claimant had agreed that he would bring them into the restaurant on Monday morning.

37. The claimant completely denied this version of events. The claimant agreed that he was supposed to advise Mr Clarke of his community service hours in advance of the rota but refuted that he had been asked by Mr Clarke to provide a rota of his community service hours.

38. The claimant stated that the arrangement was that his Probation Officer would contact him on the Saturday to tell him of the community service hours he was required to do the following week. The claimant stated that at that point he would contact the respondent before the Sunday so that the respondent could do the kitchen rota. However, the claimant provided no evidence of any such arrangements.

The Events of Monday 6 April 2009

39. The respondent went on to state that on Monday 6 April 2009 he contacted the Probation Office and spoke to a Siobhan Monaghan. His intention was to ascertain the claimant’s community service obligations so that he could work these into the rota.

40. The respondent explained the position to Ms Monaghan, that he had asked the claimant to provide him, as his employer, with a copy of his community service rota/hours in any incoming week so that he could plan the claimant’s work around this. The respondent went on to state that Ms Monaghan had stated that this was a reasonable request and had advised him that Probation and Community Service sought to accommodate three things, work, training and education.

41. However the respondent was unable to speak to the claimant’s Probation Officer Mr Liam Donnelly at that time but did so later on the same day. Mr Donnelly advised the respondent that he was unable to discuss the claimant’s Community Service with him and refused to give the respondent any details of the claimant’s community service obligations.

42. On the same day, Monday 6 April, and at some time later that afternoon the claimant went into the restaurant to speak to the respondent. Neither party was clear as to what time this visit occurred. The claimant thought that it was at the end of his community service stint which was not over before four, making his visit to the restaurant at about 6.00 pm. The respondent stated that he believed that the visit had occurred earlier in the afternoon at about 3.30 pm, as the restaurant was empty. However, the claimant did not produce any community service records to indicate that he had been working community service that day or what time it had been completed at.

43. Again the evidence in relation to the events of the afternoon of the 6 April was completely divergent between the parties. The claimant’s case was that he had been contacted by Mr Donnelly and advised that the respondent had been making enquiries about his community service responsibilities and obligations. The claimant stated that he had decided to “pop” into the restaurant to ask the respondent why he had made this call.

44. The claimant stated that on his arrival only Patrick Corrigan and Niall Conaghan were in the kitchen. The claimant went on to state that he had found the respondent at the back of the restaurant, had spoken to the respondent in a normal tone and asked him why he had contacted his Probation Officer. The claimant stated that he had had a normal conversation with the respondent on this subject that he had not spoken to other staff members and had thereafter left the restaurant quietly.

45. The respondent on the other hand stated that he had been at the back of the restaurant when he heard a colossal noise in the kitchen. The respondent approached the kitchen to investigate the source of the commotion and met the claimant in the doorway. The respondent stated that the claimant’s attitude and behaviour were very violent and intimidating and that the claimant spoke to him in a very loud and aggressive tone.

46. The respondent stated that the claimant was complaining that his Probation Officer had contacted the claimant to say that his employer had been “rearing up” about the claimant’s community service commitments.

47. The respondent stated that the claimant squared up to him and wagged his finger in the respondent’s face and that the claimant pinned him up against the wall and for the first time in his career was afraid of an employee. The respondent stated that he was particularly afraid of the claimant as he was aware of the claimant’s previous criminal conviction.

48. The respondent stated that he then asked the claimant to leave the restaurant, at which point the claimant had stated “You can’t f……….ng sack me. I will be back”. The respondent stated that he was very anxious on behalf of his staff and again asked the claimant to leave the restaurant.

49. The respondent stated that at a later stage during this exchange the claimant said, “I’m leaving anyway, I’m resigning”. The respondent stated that he had responded by saying, “That’s ok. Put it in writing”. The claimant eventually left the restaurant.

50. The respondent stated that after the event Mr Corrigan had told him that the claimant had spoken to him on his arrival at the kitchen saying, “This is your fault,” and that the respondent had heard the claimant shouting at Mr Corrigan on the way out, “Are you trying to get me into f………ng bother with Community Service?”

51. The respondent stated at this stage he contacted the Labour Relations Agency, advised them what had taken place and asked their advice in relation to his next step, as an employer, towards the claimant. The respondent stated that the LRA advised him that, in the circumstances he could suspend the claimant, on full pay, pending investigation into the events that had occurred.

52. At the end of the evening’s work the respondent locked up the restaurant and then decided to report the incident to the police station on his way home. He reported the events of the afternoon and expressed an anxiety in relation to what the claimant might do, particularly to the business.

53. The respondent also stated that on his return home that night he had contacted the claimant and advised him that he was suspending him on full pay. The respondent stated that in this telephone call the claimant had again stated that he was handing in his resignation as he another job lined up anyway.

54. It was accepted by the claimant that he had been contacted by the respondent on the evening of 6 April 2009 and advised that the respondent was suspending him on full pay. However the claimant denied stating that he was resigning as he had another job lined up.

55. The Tribunal noted correspondence from the Police Service of Northern Ireland dated 8 December 2009 which confirmed that the respondent Kevin Clarke had, at approximately 22.49 hours, reported a disturbance at his restaurant involving the claimant.

56. The Tribunal accepted that the respondent Mr Clarke had contacted the Labour Relations Agency in relation to the incident that had occurred and had sought advice. The Tribunal also noted that if the claimant’s version of events was correct and that the incident had occurred at about 6.00 pm the respondent would have been unable to contact the Labour Relations Agency after that time.

57. The Tribunal heard evidence from Mr Corrigan on behalf of the claimant in respect of this incident. Mr Corrigan confirmed that the claimant had come into the kitchen quietly, had had a normal conversation with the respondent and left again quietly.

58. The Tribunal had to consider the weight of Mr Corrigan’s evidence. It was agreed that Mr Corrigan had left the employment of the respondents “on bad terms”. Additionally although the respondent had stated that Mr Corrigan was afraid of the claimant, the claimant stated that he and Mr Corrigan had an out of work friendship that included playing cards and going shooting. For his part Mr Corrigan denied that he and the claimant were anything more than work colleagues. Mr Corrigan accepted that although he and the claimant did go hunting together they nevertheless remained work colleagues only.

59. It was also put to Mr Corrigan that he had sought other work at a butcher’s shop, Gallaghers’, while working at Floyds with the claimant and had told Gallaghers’ that he wanted to move to a new job because he wanted no part in the claimant’s forthcoming tribunal. Mr Corrigan denied that his attempt to obtain work at Gallaghers’ was to avoid having to take part in the claimant’s tribunal.

60. Mr Corrigan did accept that he and the claimant both worked in a restaurant called Floyd’s for six months before the hearing. Mr Corrigan accepted that he and the claimant worked four day shifts together throughout this six month period. However Mr Corrigan denied that at any stage he and the claimant had discussed the claimant’s forthcoming case against the respondents.

61. The Tribunal concluded that it was unsafe to rely on the evidence of Mr Corrigan. In reaching this conclusion the Tribunal relied on Mr Corrigan’s own evidence that, in spite of their playing cards and going hunting and shooting together, he and the claimant were not friends, merely work colleagues. The Tribunal also did not accept that with both men having a grudge against the respondents, Mr Corrigan and the claimant did not at any time during their work together at Floyd’s discuss the claimant’s forthcoming tribunal against the respondents.

62. The claimant returned to the restaurant on Tuesday 7 April 2009, asking to speak to Mr Clarke, saying “I don’t want any hassle, I’m resigning” and asking for his belongings. However the respondent was fearful of a recurrence of the incident the previous day and asked the claimant to leave and to come back at a given time the following day when the respondent would have the belongings gathered up and ready. On this occasion the respondent stated that, following further advice from the Labour Relations Agency, he had asked the claimant to put his resignation in writing. The claimant agreed to do this.

63. The following day, Wednesday 8 April 2009, the claimant returned to the restaurant to collect his belongings and re-stated that he was resigning and that he had another job to go to. Again the respondent asked the claimant to put his resignation in writing.

64. The claimant did not return to work thereafter. However the claimant did not put his resignation in writing. The respondents subsequently wrote to the claimant on 17 April 2009 enclosing a week’s notice pay and accepting the claimant’s verbal resignations offered on three separate occasions. The claimant did not reply to this letter.

The Law

65. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer. Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason following within Article 130.

66. Article 130 states at paragraph (2) a reason falls within this paragraph if it –

(a) relates to the capability or qualifications of the employee performing work of
the 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 on that of his employer) of a duty or restriction imposed by or under a statutory provision.

67. Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in 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.

68. Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer.

69. The Tribunal also directed itself to the following case law;

Riordan v War Office 1959 3 All England Reports 552

Martin v Yeoman Aggregates Ltd 1983 IRLR

Norwest Holst Group Admin. Ltd v Harrison IRLR 419

The Tribunal’s Conclusions

70. For the reasons set out in the findings of fact above the Tribunal did not accept the claimant’s evidence. Therefore the Tribunal concluded that the respondents’ version of events was correct and this included the fact that the claimant, on three separate occasions, stated that he had resigned.

71. The Tribunal considered the law in relation to resignations especially where these are offered “in the heat of the moment” or whether they are intended to be treated as actual resignations. The Tribunal accepted the claimant had stated on three separate occasions that he was resigning and while one such occasion could be described as “heated” the two subsequent occasions were not.

72. The Tribunal also took account of the fact that the claimant did not respond to the respondents’ letter of the 17 April 2009, accepting the claimant’s resignation. If the claimant had not resigned as suggested in that letter the Tribunal would have expected the claimant to have written to or in some way contacted the respondents to deny their version of events and state that he had not resigned.

73. Accordingly the Tribunal concluded that the claimant had resigned, that the respondents had lawfully accepted his resignation and that the claimant had not been dismissed.

Chairman:

Date and place of hearing: 8-9 December 2009, 6 & 8 January 2010, Strabane

Date decision recorded in register and issued to parties:

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Deazley v Kevin and Catoline Clarke T/A ... [2010] NIIT 6273_09IT (26 April 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/6273_09IT.html Cite as: [2010] NIIT 6273_9IT, [2010] NIIT 6273_09IT

Industrial Tribunals Northern Ireland Decisions