THE INDUSTRIAL TRIBUNALS

CASE REF:	7507/09

CLAIMANT:			Colin Morrison

RESPONDENT:	Joseph McGlone t/a Motte N Bailey

DECISION

 The unanimous decision of the tribunal is:-

1.	That the correct respondent to the claim is Joseph McGlone t/a Motte N Bailey and the title of the proceedings is amended accordingly.

2.	That the claimant was dismissed by the respondent and that such dismissal was unfair.  The respondent is hereby ordered to pay to the claimant compensation in the sum of £4,299.39.

3.	That the claimant is entitled to payment in respect of notice pay and the respondent is hereby ordered to pay to the claimant the sum of £55.23  in respect of notice pay.

4.	That the claimant is entitled to an additional award under Article 27 of the Employment (Northern Ireland) Order 2003 and the respondent is hereby ordered to pay to the claimant an additional award of £276.12.

Constitution of Tribunal:

Chairman:		Ms J Turkington

Members:		Mr I Carroll
Ms E May

Appearances:

The claimant appeared and was represented himself.
 
The respondent appeared and was represented by Ms Sheridan of Peninsula Business Services Limited.

The Claims 

1.	The claims were a claim of unfair dismissal and a claim in respect of notice pay.
	 
The Issues

2.	The tribunal had to determine whether the claimant was dismissed by the respondent on 19 September 2009 or shortly thereafter.  If the claimant was found to be dismissed, the tribunal would then have to determine whether the claimant had been unfairly dismissed.

3.	In the event that the tribunal found that the claimant had been unfairly dismissed by the respondent, the tribunal would be required to determine the appropriate remedy.  The claimant sought compensation only.

Identity of the respondent

4.  	At the beginning of the hearing, the Chairman sought to clarify the correct identity of the respondent.  It was agreed by both parties that the correct respondent to the claim was Joseph McGlone t/a Motte N Bailey
  and the title of the proceedings was amended accordingly.  

Sources of Evidence
     
 5.  	The tribunal heard oral evidence from the claimant and from the respondent and Mr Declan McGlone on behalf of the respondent.

Contentions of the Parties

6. 	It was contended by the claimant that he was dismissed by the respondent on or about 19 September 2009 and that such dismissal was unfair.  The claimant also contended that he was entitled to compensation for such unfair dismissal.   

7.	The respondent’s representative contended that the claimant had not been dismissed as the claimant contended.  The respondent’s representative contended that dismissal was not in the mind of the respondent.

Facts of the Case

8.	Having considered the evidence of the claimant and the witnesses on behalf of the respondent and having considered the documents referred to in evidence, and the submissions made on behalf of the parties, the tribunal found the following relevant facts:-

9.	The claimant was employed by the respondent from October 2007 as a part-time barman in the respondent’s pub.  The claimant had been employed by the respondent in this pub on two occasions previously and the respondent had therefore previously taken him back on two occasions after the claimant had left.  The claimant used this part-time post to supplement his income from his other full-time job.  The claimant often worked two shifts per week on Wednesday night from 7.00 pm to 12 midnight and on Saturday night from 7.00 pm to 2.00 am, that is 12 hours per week on average.
   
10.	The claimant never received a written statement of main terms and conditions of employment.

11.	It was agreed between the parties that the claimant’s gross weekly pay was £69.03 and his net weekly pay was £55.23.

12.	On the evening of Saturday 19 September 2009, the claimant attended for work as usual at around 7.00 pm.  Mr Declan McGlone was working in the bar when the claimant arrived.  It was accepted by both parties that a football match was being screened in the bar that evening, but there was a dispute between the parties as to the number of customers in the bar at the time when the claimant arrived for his shift.  It was accepted by both parties that the match had started around 5.30 pm.  Mr Declan McGlone in his evidence said that customers had started to drift away around 7.00 pm or before that.  The tribunal found this rather implausible as the match would not have finished until somewhere between 7.15 pm and 7.30 pm.  Generally, the tribunal found the evidence of the claimant on this point to be rather more cogent and consistent than that of Mr Declan McGlone.  The tribunal therefore finds as a fact that the bar was busy at the time the claimant arrived and there were in the region of 50 customers in the bar.

13.	After the claimant arrived for his shift and finding the bar busy, the claimant asked Declan McGlone, who was the brother of the respondent, whether anyone was coming to help the claimant.  Declan McGlone replied that the respondent would be coming, but later on.  The claimant said this was not acceptable, that he need help now and asked Declan McGlone to phone his brother, the respondent, and tell him to come to the bar immediately.
  
14.	There was a dispute between the parties as to whether or not the claimant’s behaviour at this stage was aggressive.  Having considered the evidence and demeanour of all the witnesses, the tribunal finds as a fact that the claimant acted in a manner which was strident and forceful, but not aggressive.  The respondent arrived at the bar at 8.10 pm.  He took the claimant out to the back of the bar.  Following a discussion between the claimant and the respondent, it was accepted by both parties that the claimant was sent home by the respondent.  There was a dispute about the precise words used.  The claimant’s evidence was that the words used were “get out” whereas the respondent’s evidence was that he told the claimant to “go home”.  On balance, since the claimant’s evidence on this point was at all times clear and consistent, the tribunal prefers the evidence of the claimant and finds as a fact that the respondent told the claimant to “get out”.

15.	The claimant had been due to work another shift on Sunday 20 September 2009 to cover for a colleague.  He did not attend for work on that day.  The claimant’s evidence was that he visited the bar on Friday 25 September to speak to the respondent face to face.  After that, on Saturday 26 September, the claimant received a letter from the respondent dated 24 September 2009.  By contrast, the respondent’s evidence was that the claimant had come to the bar to speak to him on Wednesday 23 September and it was following this that the respondent had written to the claimant on 24 September.  The respondent suggested that his letter reflected a mutual and amicable termination of employment agreed between the parties on 23 September.

16.	The tribunal was required to resolve this conflict in evidence.  In considering this matter, the tribunal noted that the account given by the respondent in evidence was at variance with that set out in his response form.  In the response form, the respondent indicated that the claimant had met him at the bar on Friday which is entirely consistent with the claimant’s version of events.  The tribunal therefore found as a fact that the informal meeting between the claimant and the respondent at the bar took place on Friday 25 September which was the day after the respondent had sent his letter to the claimant dated 
24 September.
 
17.	The content of the respondent’s letter of 24 September was as follows:-

“Prior to our conversation on Saturday 19 September 2009, you are no longer required as a part time employee for the Motte n Bailey.  If you feel that there is anything you wish to discuss further with myself or Declan regarding your employment status, please do not hesitate to contact us. If you have any further queries, please let me know”.

18.	The claimant was issued with a P45 which gave a leaving date of 
20  September 2009.

19.	On 23 October, the claimant sent a grievance letter to the respondent in relation to holiday pay and unlawful deductions from wages.  The respondent replied on 2 November inviting the claimant to a grievance hearing.  This hearing was held on 12 November and the respondent issued his decision on 16 November in which he did not uphold the claimant’s grievance.  The claimant was given a right of appeal to Mr Declan McGlone which he exercised by letter dated 
19 November 2009.  In this letter the claimant argued that he had been dismissed by the respondent.  There was no appeal hearing.  Mr Declan McGlone replied to the claimant by an undated letter in which he argued that the claimant’s employment had been terminated by mutual agreement and on a friendly basis.  The claimant’s grievance in respect of holiday pay has since been resolved between the parties.

20.	At the date of hearing, the claimant had not been able to obtain any permanent alternative part-time work.  Coming up to Christmas 2009, the claimant worked 3 shifts through an agency earning a total of £40.00 net per shift, £120.00 in total.  Since September 2009, the claimant has made a number of applications for alternative part-time work and for higher paid full-time work, but none of these applications has been successful.
  
Statement of Law

21.	There was a dispute in this case as to whether the claimant had been dismissed by the respondent.  In such a case, the burden of proof rests with the claimant to satisfy the tribunal that he was dismissed.  The position is described in Harvey on Industrial Relations and Employment Law (Div D I A  para 201) as follows:-
“If the fact of dismissal is disputed, it is for the employee to satisfy the tribunal on this point.  If he fails to do so, he will lose his case.”

22.	In the case of Dalitis t/a Shanklin Motor Com v Plissi UKEAT/0127/08/MAA,  the EAT made it clear that in cases where there was a dispute between the parties as to whether the claimant was dismissed or whether he resigned, the tribunal must make a specific finding of fact as to the words spoken.

23.	If the claimant was dismissed, then the statutory dismissal procedure introduced by the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) applies in this case.  In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Step 1 – written statement of grounds for potential dismissal and invitation to a meeting.

Step 2 – meeting to discuss the proposal to dismiss the employee.

Step 3 - appeal meeting.

By Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), where the non-completion of the statutory dismissal procedure is attributable to the employer, the dismissal is automatically unfair.

24.	Pursuant to Article 17 of the 2003 Order, where it appears to the tribunal that the non-completion of either the statutory dismissal procedure or the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50 per cent.

25.	By article 118 of the 1996 Order, the notice required to be given by an employer to terminate the contract of employment of an employee is one week where the claimant was employed for a period between one month and two years.  

26.	Art 27 of the 2003 Order requires the tribunal to make an additional award to the claimant where the respondent has failed to provide a written statement of initial employment particulars and where the tribunal has:-

a)  found in favour of the claimant but makes no award; or

b)  makes an award to the claimant.

          Conclusions

	Unfair dismissal

27.	In this case, there was a clear dispute between the parties as to whether the claimant was dismissed.  The tribunal made specific findings of fact in relation to the content of the conversation on 19 September 2009 as required by the Dalitis case.  The tribunal found as a fact that the claimant was told by the respondent to “get out”.

28.	The tribunal did not consider that these words alone were sufficiently clear to establish that the claimant had been dismissed by the respondent.  However, the tribunal was struck by the content of the letter from the respondent dated 
24 September 2009 which stated “Prior to our conversation on Saturday 
19 September 2009, you are no longer required as a part time employee for the Motte n Bailey.”   The tribunal considered that these words could only be read as being effectively confirmatory of a dismissal of the claimant.  The tribunal found as a fact that this letter and these words were written by the respondent before he and the claimant met on Friday 25 September.  The respondent contended that a termination by mutual agreement had taken place at a meeting on 23 September 2009.  However, the tribunal found, as a fact, that there was no such meeting.  Therefore, these words could not be interpreted as confirmatory of any termination by mutual agreement.  Taking the words spoken by the respondent on Saturday 19 September, that is “get out”, together with the content of the respondent’s letter dated 24 September, the tribunal concluded that the claimant was dismissed by the respondent, with the dismissal taking effect on Saturday 26 September 2009 when the claimant received the respondent’s letter.

29.	The respondent denied that the claimant was dismissed and no dismissal procedure was followed by the respondent.  No step 1 letter was sent to the claimant nor was there any step 2 meeting with the claimant before his dismissal nor any appeal meeting.
  
30. 	The tribunal was satisfied on the basis of the facts found that the non-completion of the statutory dismissal procedure was wholly attributable to the respondent.  The tribunal therefore concluded that the dismissal of the claimant was automatically unfair in accordance with Article 130A of the 1996 Order.  It was not therefore necessary for the tribunal to consider whether the dismissal was fair in all the circumstances.
  
    31.  	Accordingly, the unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the claimant is entitled to compensation for such unfair dismissal.

32.     Having considered the claimant’s evidence regarding the attempts made by him to find alternative employment and taking account of the present economic conditions, the tribunal considered that it was likely to take the claimant some 12 months to find other employment with the same hours of work. Accordingly, the tribunal determined that it would be just and equitable in all the circumstances for the claimant to be awarded ongoing loss of earnings up to 
26 September 2010.

33.    The tribunal found that the respondent entirely failed to follow each and every requirement of the statutory dismissal procedure and made no attempt to follow any procedure whatsoever in respect of the claimant’s dismissal.  In all the circumstances, the tribunal took the view that it was just and equitable for the award to the claimant in respect of unfair dismissal to be increased an amount towards the higher end of the scale allowed by article 17, that is by 40 per cent.

	Compensation for unfair dismissal

34.	The tribunal went on to consider the appropriate remedy.  The claimant did not seek reinstatement or re-engagement.  The tribunal considers that the appropriate compensation in this case in accordance with article 152 to 158 of the Employment Rights (Northern Ireland) Order and article 17 of the Employment (Northern Ireland) Order is as follows:-

(A)	Basic award

     Agreed gross weekly pay =                                                             £69.03
The claimant was continuously employed for 1 year
at the date of termination

Therefore, the basic award = 1 weeks gross pay =                     £69.03

(B) Compensatory award

Immediate loss to date of hearing:-

45 weeks at agreed net weekly wage = 45 x £55.23 = 	        £2,485.35

Less earnings from agency work                                - 	            £120.00
                                                                                   = 	         £2,365.35
                
Future loss of earnings from date of hearing to
26 September 2010:-

7 weeks @ £55.23                                                      = 	        £   386.61
                              
Total compensatory award                                     	        £2,751.96
                           Loss of statutory rights
                           £250
                    
	Total monetary award for unfair dismissal 
  £69.03 + £2,751.96 +   £250 =      				        £3,070.99             

 Increase in monetary award of 40%                     ADD   	        £1,228.40     

 TOTAL award for unfair dismissal after increase    =            £4,299.39              

 Prescribed element                                                     =             NIL

The tribunal can see no basis for a reduction for contributory fault in this case.

                   	Accordingly, the tribunal hereby orders the respondents to pay to the claimant
compensation for unfair dismissal in the sum of £4,299.39.

                    Pay in lieu of notice

35.	The claimant was employed for a period of one year.  Therefore, the claimant was entitled to 1 weeks notice of the termination of his employment.  The claimant received neither notice of termination nor pay in lieu of notice.  Accordingly, the claimant is entitled to notice monies as follows:-

       1 week x £55.23 (net) = £55.23

       No issue arose in this case regarding non-completion of the statutory grievance procedure.
       
       Award under article 27 of the 2003 Order

36.	The tribunal found as a fact that, throughout his employment, the claimant never received a statement of main terms and conditions of employment.  The tribunal therefore determined that it was appropriate to make an award under article 27 of the 2003 Order.  In view of the respondent’s disregard for the statutory obligations of an employer, the tribunal considered it appropriate to award the higher amount, that is 4 weeks pay calculated as follows:-

4 weeks pay @ £69.03 per week (gross) = £276.12

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

 

Chairman:

Date and place of hearing: 10 August 2010, Belfast

Date decision recorded in register and issued to parties: