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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Johntson v O'Kane (t/a Marquis of Downshire) [2007] NIIT 2529_06 (30 April 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/2529_06.html Cite as: [2007] NIIT 2529_6, [2007] NIIT 2529_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2529/06

CLAIMANT: Keith Roy Johntson

RESPONDENT: Turlough O'Kane

T/a Marquis of Downshire

DECISION

The unanimous decision of the tribunal is that the claimant has failed to establish that he was unfairly dismissed. The tribunal also finds that the remaining elements of the claimant's case as to holiday pay and unlawful deduction of wages are also unsubstantiated. The claimant's claim therefore is dismissed in its entirety.

Constitution of Tribunal:

Chairman: Mr T Browne

Members: Mrs Walker

Mr Copeland

Appearances:

The claimant appeared in person.

The respondent was represented by Ms L Sheridan, Peninsula Business Services.

Issues

The tribunal had to determine if the claimant had been unfairly dismissed. The claimant's case included an assertion, in terms, that there was a reduction of his hours of working which in itself constituted an unlawful deduction of wages and also indicated behaviour by the respondent which amounted to constructive dismissal. The claimant also asserted that he was owed pay for untaken holiday entitlement.

Findings of Fact

1. The claimant had worked at the Marquis of Downshire pub restaurant in Hillsborough as a barman since June 2004. Its previous owners sold it as a going concern to the respondent in January 2005. The respondent is an experienced publican, who also owns the Hague Bar in Lisburn.
2. The tribunal found that almost from the outset, the respondent became aware of problems with the claimant's reliability. Whilst there were incidences of genuine illness, the tribunal also found that there was ample evidence that the claimant was frequently absent at short or no notice, for no good reason. Examples of this include being seen out fishing when he was supposed to be too ill to attend work; and coming into the bar while off sick to collect his wages and having a drink while he was there.
3. The tribunal found that the rostering of staff caused significant difficulties for the management staff of the respondent, although this is common throughout the food and drink industry.
4. The claimant worked as a permanent part-time barman. There was no clear evidence as to the number of hours he could expect to work per week. The claimant states that he worked on average 36 hours per week whereas the respondent stated it to be 16 hours per week. This would appear to be based upon the hours worked by the claimant at the end of his employment.
5. The dispute over the hours worked arose from what seems to have been a misunderstanding in early February 2006. On the duty roster, the claimant left a note to the effect that he wished to work up to just 16 hours per week, at weekends.
6. The claimant stated in evidence that this was in response to being rostered for work only at weekends, which he viewed as being some sort of punishment for non-attendance, primarily due to illness. The respondent on the other hand took it as a request from him to work up to that number of hours and only at weekends.
7. The available evidence did not assist the tribunal in coming to a conclusion as to which version was correct. The tribunal found however that in March 2006, when the claimant subsequently sought an increase in his hours, the respondent acceded to his request, although the claimant failed to attend work on 26^th March, the day before he was due to meet the respondent to discuss it, nor did he attend the meeting.
8. The claimant attended a disciplinary meeting on 4 April 2006, which was called because of his working practices and repeated failure to attend work. The tribunal found that he was offered additional hours of work at Hague's Bar, and that his objection to this on grounds of transport difficulties was met by a further offer of a lift to and from work. Again, he declined the offer.
9. At a further meeting on 28^th April, the respondent offered to increase the claimant's working hours, but the claimant's work attendance remained spasmodic. He frequently reported sick, but then was seen by other staff as referred to in para 2.
10. In mid-July 2006 the claimant stated that he attended work on 11^th July to be told that his shift had been covered and that he should go home. The tribunal accepts Mr O'Kane's evidence on this general point that due to the claimant's sporadic attendance, his staff had to double-book other staff for the claimant's roster to be sure that sufficient bar staff would be available in the event that the claimant did not turn up.
11. After 11^th July, the claimant seems to have stopped coming to work. The tribunal accepts the respondent's uncontradicted evidence that staff attempted to contact him to ascertain his availability but that he did not reply. The respondent eventually formed the view that the claimant had simply left.
12. The claimant's version is that he felt edged out of his job, and that the incident on 11^th July confirmed that view.
13. At no stage did the claimant make any complaint, until by way of a solicitor's letter in late August 2006, setting out his grievances.
14. The respondent then offered to meet the claimant at Hague's Bar at 9.00 a.m. on 19^th September 2006, but the claimant did not arrive. The claimant however stated in evidence that he arrived outside at 8.45 a.m. but that nobody was there.
15. The tribunal on balance prefers the version of the respondent on this point. It was his daily practice to arrive at the Hague Bar at 8.00 a.m., so it seems likely that he was present. The claimant states that he could not find the entrance and that he did not ring on his mobile phone because he could not afford to. The tribunal was wholly unimpressed with his reason for not trying to contact the respondent. He must have realised the importance of this meeting, and to fail to make such a phone call because he could not afford to does not withstand scrutiny.
16. It is of note in this regard that the claimant had signed on for Jobseeker's Allowance on 22^nd August, thereby indicating that he already regarded himself as out of the respondent's employment. Of even greater significance is written confirmation from his new employer that he started work with them on 18^th September, the day before this meeting. His earnings from his new employment exceed £300 per week, almost double that of his employment with the respondent, even at its peak number of hours.
17. The tribunal therefore finds it more likely that the claimant had substantial reasons not to attend the meeting on 19^th September.

Law and Conclusions

18. Article 130 of the Employment Rights (Northern Ireland) Order 1996 requires there to be a dismissal before a claimant can ground an allegation of unfair dismissal.

By virtue of Article 127(1)(c) of the 1996 Order however, an employee is regarded as dismissed "if (and … only if) – the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct". This is known as 'constructive dismissal'.

19. The tribunal has concluded that there was no dismissal in its usual form in this case. The tribunal further finds that the respondent did not behave in such a way as to entitle the claimant to terminate the contract.
20. The tribunal concludes that the conduct of the respondent in arranging meetings and in offering increased hours and transport showed a clear intention to continue the claimant's employment. It also was found by the tribunal that this continued until 19^th September; otherwise, the respondent would not have been likely to have arranged the meeting set for that date.
21. In order to establish a case of constructive dismissal, the claimant needed to show a clear intention by the respondent to fundamentally change the terms of employment or to breach them to the point where the claimant could properly take it that the respondent had no intention of honouring them.
22. The tribunal finds that this was not the case. Whilst there is a possibility that the respondent was "reining in" the claimant by giving him unfavourable rosters, his unreliability and cavalier attitude left the respondent with no option but to make alternative arrangements.
23. The tribunal has concluded that the claimant, who was clearly an unreliable employee even when working the hours that he worked, became even more unreliable when given shifts at a time when he did not want to work.
24. As stated earlier, the tribunal could not reach a firm conclusion as to how this came about, but the reaction of both sides gave the tribunal a clearer picture of their attitudes when it arose.
25. The tribunal therefore concludes that the claimant was not dismissed; nor was he constructively dismissed. He therefore was not unfairly dismissed and his claim must fail.
26. There was no evidence before the tribunal that the claimant was owed any holiday pay, nor that any unlawful deductions (by way of reduced hours) had been made. Those aspects of his claim must also fail.

Chairman:

Date and place of hearing: 30 April 2007, Belfast

Date decision recorded in register and issued to parties: