Gamble v Duffy  (Unfair Dismissal)  (16 December 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 920/03

APPLICANT:	Damien Gamble

RESPONDENT:	John Duffy

DECISION

The unanimous decision of the tribunal is that the application be dismissed.
Appearances:

The applicant was represented by Ms M Farrell Barrister-at-Law, instructed by Oliver Roche & Company, Solicitors.

The respondent was represented by Mr P Kelly Solicitor of Kelly & Corr Solicitors.

Summary Reasons

1.	The applicant’s evidence was that he had been employed as a roofer by the respondent for some seven to eight years.  He stated in cross-examination that his employer had never told him about drinking on the job, although he did get one letter from his employer after being reported by his own ex-brother-in-law.  On 26 March 2003, the applicant had been picked up as usual for work.  He had been driven to the yard at Derry which he left in a van with others at about 9.00 am.  They stopped at Greysteel for breakfast and then went on to the job in Ballymoney.  The applicant was adamant that they made no other stops.  They started work.  The respondent arrived somewhere about 11.00am at which time the applicant was painting the roof they were working on with a roller.  The respondent instructed one of the other workmen to commence painting also and a row then started about whether a paint brush had been stolen.  The respondent accused the applicant of stealing the paint brush and ordered him off the roof and to ‘get out of his sight’.  According to the applicant the respondent also made points about the applicant’s work.  In cross-examination the applicant indicated that the respondent had said ‘get out of my sight, I don’t want to see you again’.  The applicant stated that he considered himself sacked and went home.

Two days later the applicant met the van driver who usually picked him up for work and said that he wouldn’t be back to work after being sacked.  He subsequently went to the respondent’s house to get his P45, unsuccessfully; he asked about it again about a fortnight later and it was sent.

2.	According to the respondent he had called to the site at which the respondent was working on 26 March 2003 where the foreman indicated that the applicant had smelt of drink.  According to the respondent this had been a feature of the applicant’s employment and this evidence was supported by two of the applicant’s work colleagues.  When the respondent got onto the roof the applicant was painting the roof with a one inch paint brush, an absurd choice for the roof the size of that being painted.  When the respondent spoke to him the applicant exploded and stated that he had stolen no paint brush.  He had not accused the applicant of stealing the paint brush since the brushes were provided by the person for whom the respondent carried out work, he being required to supply labour only.  He had asked him to get off the roof.  The respondent stated that the applicant’s voice was slurred and he could smell drink from him.  He said ‘you’ve been drinking again’ which the applicant denied.  The respondent asked him ‘to get off the roof now, that’s it’.  He said nothing about the applicant’s wife whatsoever.  The respondent had heard shortly after the incident that the applicant was working for a rival firm.

Other evidence given on behalf of the respondent by the applicant’s work colleagues indicated that on the day in question the applicant and his colleagues had stopped on another occasion prior to starting work and at work the applicant had indeed been painting the roof with a small brush.  The van driver also indicated that he had called for him on the following two days without success.  On the afternoon of the second day the applicant had spoken to him and asked if he had called to collect him that day and the day before.  He then said ‘I’ll not be back’.  There was no suggestion in the van driver’s evidence of any reference by the applicant to his having been sacked.

3.	The tribunal preferred the evidence given by and on behalf of the respondent.  The tribunal did not consider that the conversation on the roof on 26 March 2003 amounted to a dismissal.  Given the history of incidents involving the applicant and drink in the past, and considering the words used, the tribunal concluded that no reasonable employee would have understood the words to mean anything beyond an instruction to get off the roof, which would have been no place for someone who had taken drink.  The fact that the usual arrangement for picking the applicant up for work was followed the following two days suggests that, in the respondent’s mind at least, there was no belief that the applicant had been dismissed.  The terms of the conversation with the van driver on the second day, as reported by the driver, suggests, by the lack of any reference to dismissal, that there was no such belief in the applicant’s part either but that that conversation was the initial step being taken by the applicant in clarifying that he had terminated his employment.  That process was completed shortly thereafter by the applicant taking up employment with another firm.

4.	As there was no dismissal no rights in respect of unfair dismissal accrued to the applicant and the application falls to be dismissed.

Chairman:

Date and place of hearing: 16 December 2003, Omagh.

Date decision recorded in register and issued to parties: