THE INDUSTRIAL TRIBUNALS

CASE REF:	2117/13

CLAIMANT:			Richard James McBride

RESPONDENTS:		1.	Warren Patton 
				2.	Patton’s Bakery

DECISION
The unanimous decision of the tribunal is that 

(1)	It is ordered that the first respondent, Warren Patton, is dismissed as a respondent from these proceedings and the title of the respondent is amended to:-

		Patton’s Bakery Ltd

(2)	The respondent, Patton’s Bakery Ltd, was in breach of the claimant’s contract of employment by wrongfully summarily dismissing him on 18 September 2013, with immediate effect, without notice or wages in lieu of notice; and, as a consequence, the respondent is ordered to pay to the claimant the sum of £1,026.32 (4 x £256.58) by way of damages.  

Constitution of Tribunal:
Chairman (sitting alone):		Mr N Drennan QC
Appearances:
The claimant appeared in person and was not represented .
The respondent did not appear and was not represented.

Reasons

1.1	Prior to the commencement of this hearing, Mr Warren Patton (the first respondent) contacted the Office of the Tribunals by telephone and e-mail and stated that:-

“I’m not going to be able to attend a hearing due to members of staff being off work.”

	In view of the contents of the said e-mail and telephone conversation with the tribunal and the consequences for same, I decided to treat this as an application for an adjournment of the hearing by the respondents and to arrange an immediate Case Management Discussion, by way of telephone conference before the commencement of the substantive hearing, to consider and determine the respondent’s application for a postponement of the hearing in the circumstances outlined above.  I pointed out to Mr Patton that, although I could determine such an application by way of telephone conference, I could not conduct the substantive hearing of this matter by way of telephone conference.  (See further Rule 15 of the Industrial Tribunals Rules of Procedure 2005).  Mr Patton then confirmed to me that he did not wish to make an application for a postponement of the hearing and he wished the hearing to proceed in the absence of the respondents.  I pointed out to Mr Patton that, pursuant to Rule 27(5) and (6) of the Industrial Tribunals Rules of Procedure if a party fails to attend or to be represented (for the purpose of conducting the party’s case) the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date; but if a tribunal wishes to dismiss or dispose of proceedings in the circumstances described above, it shall first consider any information in its possession, which has been made available to it by the parties.  I pointed out to Mr Patton that, if I decided to proceed with the hearing in his absence, although the tribunal would consider any information set out in the said response of the respondent, he should be aware that the weight to which the tribunal could give to such information might be very little, in the circumstances, in the face of unchallenged oral evidence given by the claimant.  Following this, Mr Patton again confirmed that he did not wish to proceed with any application for an adjournment and was content for the matter to proceed in the absence of the respondent.  In light of the foregoing, I decided to proceed with the substantive hearing in this matter, in the absence of the respondent.

1.2	At the conclusion of the said Case Management Discussion, it was agreed, and I so ordered, that the first respondent should be dismissed as a respondent to these proceedings and the title of the respondent should be amended to:-

		Patton’s Bakery Ltd;

	being the employer of the claimant at the relevant and material time.  Hereinafter in this decision Patton’s Bakery Ltd is referred to as the respondent.

1.3	The claimant presented a claim to the tribunal for breach of contract arising out of the termination of his contract of employment with the respondent, on 18 September 2013, when he was summarily dismissed, with immediate effect, without notice or pay in lieu of notice.

1.4	Mr Warren Patton presented a response to the tribunal on 17 January 2014, on behalf of the respondent, in which he denied liability for the claimant’s said claim and stated, inter alia:-

“I feel Mr McBride was in breach of his contract and company policy in this matter and left me with no alternative but to terminate his contract with immediate effect.  Therefore I shouldn’t be paying four weeks’ wages in lieu.”

2.1	In the absence of the respondent, as set out above, I heard oral evidence from the claimant which, in the circumstances, was unchallenged. 

2.2	I was satisfied, on the basis of the said evidence, that the claimant was employed by the respondent as an apprentice baker from 1 August 2009 until 18 September 2013.  Under his contract of employment he was employed for a 48 hour 6 day week at £297.60 per week gross and £256.58 net per week.  In addition, on occasion, the claimant would have worked overtime.  On Saturday 14 September 2013, the claimant was due to work a morning shift from 2.00 am until 10.00 am but, due to a severe illness, making him bedridden, he was unable to go to work.  He stated, in evidence, that as his mobile phone was not working, which contained all his telephone numbers, including those for the respondent, he was unable to contact Mr Patton and did not do so until the evening of Sunday 15 September 2013.  The claimant was informed by Mr Patton, in writing, he was required to attend a disciplinary hearing on 18 September 2013 for bad timekeeping and failing to report for work.  When he attended the disciplinary hearing on 18 September 2013 he was handed a document, which stated, inter alia:-

		“Ref: Bad timekeeping, Failing to report to work

These matters above are considered to be in serious breach of your contract of employment and will not be taken lightly by the company.  Are you fully aware you’ve been on a final warning for a period of one year from 15th of November 2012.  Do you agree to these matters?  If so please sign the line below.”

The claimant signed the document and then, without any further hearing, was informed, in writing, by Mr Patton that the respondent had decided to terminate his contract with immediate effect.  The claimant accepted, in evidence, that he had been informed of a final warning for gross misconduct, for leaving work without authorisation, in November 2012 but, despite previously asking for relevant documentation relating to the terms of this warning, this had never been provided to him by the respondent until he was presented with the said document to sign.  The claimant stated he had never previously been off work due to illness.

3.1	A employee may be summarily dismissed if he is guilty of a repudiatory breach of the contract of employment.  The breach therefore must be sufficiently fundamental (see Harvey on Industrial Relations and Employment Law, AII, Paragraphs 520 – 521;  Laws  v  London Chronicle (Indicator Newspapers) Ltd [1959] IWLR 698; Jupiter General Insurance Company Ltd  v  Shroff [1937] 3 AER 67 and Wilson  v  Racher [1974] IRLR 184).  I am satisfied, in light of the above authorities, an example of a repudiatory breach of contract would be where an employee’s misconduct was sufficiently serious to be regarded as gross misconduct.  In this case, on the facts as found by me, as set out above, there is no doubt that the claimant did not go to work for his morning shift on 14 September 2013.  However, on the unchallenged evidence before me, the claimant, at the relevant time, was so sick that he was bedridden and unable to go into work.  Also this was the first occasion, in his four year period of employment, he had lost a day’s work due to illness.  I find it surprising that the claimant, who has a partner, was unable to get word to his employer about his absence and reason for same, before the evening of Sunday 15 September 2013, even if his mobile phone, which contained all his relevant numbers, was broken at the time.  I have no evidence before me of the effect on the employer and/or its business by the absence of the claimant to attend a shift; albeit I have no doubt that the absence of any worker from a shift, in particular, without advance notification, maybe very inconvenient.  However, one such absence for illness, without any more evidence, as indicated above, in my judgment, would not normally amount to gross misconduct.  There was no evidence before me this illness was not genuine and/or of a serious nature.  In the absence of any relevant evidence to the tribunal by the respondent, I do not consider the information contained in the respondent’s response relating to allegations of previous unsatisfactory timekeeping and/or inappropriate activities outside his employment, in the period immediately prior to the termination of his employment, which the claimant denied, were relevant to my determination of the issue whether the claimant’s misconduct was sufficiently serious to be regarded as gross misconduct.  At best, they remained allegations and the respondent, as set out above, chose not to give evidence to the tribunal in relation to them.  If he had my decision might have been different.  The claimant accepted in evidence that he had been given a final warning on or about 15 November 2012 having left work without authorisation; albeit he informed me that he had not been given any relevant written documentation in relation to the warning, despite his previous requests to Mr Patton for same.  The circumstances on the face of the warning, as set out in the documentation signed by the claimant, were different to the circumstances which arose on this occasion, on the facts as found by me.  In particular, I was also satisfied the illness of the claimant was genuine and prevented him from going to work on the morning of 14 September 2013.  His conduct, in the circumstances, did not amount to gross misconduct and did not allow the respondent to dismiss the claimant without notice or pay in lieu of notice.

3.2	The claimant’s dismissal was therefore wrongful and in breach of the claimant’s contract of employment.  The claimant had been working for four years for the respondent and, in the circumstances, he was entitled to four weeks’ pay in lieu of notice, pursuant to Article 118 of the Employment Rights (Northern Ireland) Order 1996, amounting to £1,026.32 (4 x £256.58), by way of damages.

3.3	The respondent is therefore ordered to pay to the claimant, for breach of the claimant’s contract of employment, the sum of £1,026.32 by way of damages.  

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

Chairman:

Date and place of hearing:	18 February 2014, Belfast

Date decision recorded in register and issued to parties: