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Byrne v Wine Inns Ltd & Anor (Unfair Dismissal/Notice Pay/Holiday Pay) [2003] NIIT 1208_01 (8 October 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 1208/01

APPLICANT: Michael James Byrne

RESPONDENTS: 1. Wine Inns Ltd

2. Fionagh Properties Ltd

DECISION

The unanimous decisions of the tribunal is that the applicant was unfairly dismissed and was further entitled to one week's pay in lieu of notice and to payment for two days statutory holidays worked. Compensation is set out in paragraph 13.

Appearances:

The applicant appeared in person.

The respondents were represented by Mr P Millen Solicitor of Tughan & Co Solicitors.

1. At the commencement of these proceedings, the applicant sought permission to include the statement by a Mr Colm Maguire which had not been signed nor dated and which contained a series of allegations by Mr Maguire against the respondents. Mr Maguire was not in attendance and had indicated to the applicant that he would not be attending. The applicant wished to put the statement before the tribunal to show that someone else had suffered a similar experience as himself.

Mr Millen said that the applicant's name was not mentioned in Mr Maguire's statement and its sole purpose was to discredit the respondent and, as he would not have an opportunity to cross-examine the witness as to his statement or its contents, the tribunal should not agree that the document be included in the book of documents before the tribunal. The tribunal agreed that the document should be removed from the bundle.

2. The applicant was employed as a duty manager at the respondents premises at Fourwinds, Newtownbreda. He commenced employment on 15 November 1999 and his employment terminated on 29 November 2000. The applicant stated that he was promised promotion after six months but he considered he was overlooked for promotion. He complained that he had to work long hours and because of the excessive hours he started to look for another job. He further complained that following the appointment of Mike Gatts as general manager, he had no further contact with either Fionagh Rann or Jim McGovern about promotion.
3. There was a manager's meeting on the morning of 29 November, a brainstorming session prior to the pre-Christmas rush. The applicant had said to Mike Gatts that he would wish to speak to Jim McGovern after the meeting. After the meeting, the applicant met with Fionagh Rann and Jim McGovern and he explained that he had been trying to get promotion and considered that he had done an excellent job but he had now been offered employment elsewhere which he was considering. At this, Fionagh and Jim accused him of blackmailing them to get promotion as it was the busiest month of the year. The meeting appears to have developed into a slanging match with his superiors and he said that he got up and told them he was going on the split shift and would return at 6.00 pm. He was adamant that at no time did he offer his resignation. When he came back to work at 6.00 pm he was met by Mike Gatts, general manager, who said that he had been instructed by Fionagh Rann and Jim McGovern to take his swipe card and premises key as his services were no longer required. The applicant said that Jane O'Rourke was asked to escort him from the premises.

He then went to Peter Gilroy and said that he was prepared to take up the post he was offering and he started work about one and a half weeks after his dismissal.

4. Part of the applicant's claim was that he should have been paid for the hours worked in excess of 40 hours per week. He contended he raised the issue of payment for overtime during the time he had worked there. He had spoken to Jane O'Rourke and Matthew McAllister. The applicant supplied a record of hours worked which he had compiled from the time sheets and claimed that he was entitled to be paid for 797 hours. The respondents disputed these figures and considered that the figure should be about 223 hours in excess of his 40 hours per week for the year 1999 - 2000. However, the respondents said that the applicant was not entitled to be paid for overtime and therefore, there was no substance to his claim.

Although the applicant never signed a contract of employment he was aware of the terms and conditions of employment as a manager with the respondents. Section 2 of the handbook paragraph 2 states:-

"It will be at the discretion of your manager whether hours in excess of 40 hours per week will be paid at overtime rate or you will receive time off in lieu".

The respondents contended that it was company policy not to pay managers or give them time off in lieu for excess hours worked. It was clear that hourly paid employees did get paid overtime and on a few occasions chefs did get paid when they threatened to walk out unless overtime was paid.

5. The applicant complained that he was also entitled to holiday pay. Karen Orchin, who was responsible for pay with the respondents gave details of the leave taken by the applicant. She calculated his leave entitlement as 17 days based on his working 10 full months with a yearly entitlement of 20 days. He had carried three days over from the previous year giving him a total of 20 days. He had taken 15 days holiday and therefore was entitled to be paid for five days and on leaving he was paid one week's holiday pay. The applicant also claimed entitlement to be paid for two statutory holidays which he had worked.
6. The applicant challenged the keeping of records by the respondents, although he worked in excess of 40 hours each week the total recorded for each week was 40. Each days hours were correctly filled in but no matter how many hours were worked, the total was given as 40. The records show that the applicant worked greatly in excess of 40 hours and certainly in excess of the 48 hours per week as provided for in the Working Time Regulations (Northern Ireland) 1998. His line manager, Jane O'Rourke, gave evidence that the applicant would work 55-60 hours per week on average. She said that the applicant did raise the issue of the hours worked and whether he should be paid overtime or time in lieu. She referred the matter to Matthew McAllister and that was the last she had heard of it.
7. Ms O'Rourke recalled the day of 29 November. Both she and the applicant spoke to Fionagh Rann and Jim McGovern separately and following the discussions the applicant left to go on his split shift. The applicant had told her that he had been offered a new job but did not indicate that he would be leaving nor did he threaten to leave. After the applicant left at 3.00 pm, Mr Gatts told her that Fionagh Rann and Jim McGovern had decided the applicant would be no longer working for Fourwinds. On his return at 6.00 pm Mike Gatts took the applicant's swipe card and keys and she was asked to escort him from the premises. As far as the witness was concerned, the applicant had been dismissed.
8. The applicant referred Ms O'Rourke to a Change of Details form which provided that in the event of a voluntary resignation a written resignation letter was to be appended. She was aware that it was customary for those resigning voluntary to be required to work their notice and to supply a letter of resignation. In the case of the applicant, she was not asked to get him to sign such a form. She also could not recall any other occasion when an employee was escorted from the premises.

She also worked an average of 60 hours per week but she never complained and never asked for overtime. She said that the applicant was aware that salaried staff did not get paid overtime. She could recall one occasion when the applicant made a remark about working all these hours and not getting paid and that she had mentioned it to her line manager as she did not have authority to do anything.

9. There was a conflict of evidence as to whether the applicant had been asked to sign a contract and refused. The applicant had no recollection of being asked to sign a contract. Mr McAllister, general manager, said that the applicant was given an opportunity to sign the contract but failed to do so. The applicant said that if he was asked to sign the contract a copy should be on his personnel file but one had not been produced.
10. Mike Gatts took over as general manager at the end of October the beginning of November. He could recall the applicant asking for a meeting with Fionagh Rann and Jim McGovern. They arrived at the Fourwinds on 29 November. The applicant had made them aware that he had been offered a job by Peter Gilroy although he had not yet accepted it. He could recall the applicant leaving the meeting with Fionagh Rann and Jim McGovern and putting his hands up and saying, "I'm sorry". No further conversation took place at that time. After the applicant left at 3.00 pm Mike Gatts spoke to Fionagh Rann and Jim McGovern. They said that he had asked for more money and when they said that there was none the discussion became heated and then he had mentioned the job with Peter Gilroy. Mike Gatts was instructed by Fionagh and Jim to take the applicant's keys and swipe card and to see that he got paid what he was owed. He could not recall Jane O'Rourke escorting the applicant from the premises.
11. Jim McGovern, general manager of Wine Inns Group said that no managers got paid overtime and he found it strange that a duty manager should not know that he was not entitled to overtime. It was customary for there to be a meeting, on a weekly or a fortnightly basis, of managers. The meeting was usually in the mornings and on the morning of 29 November he was told that Michael Byrne and Jane O'Rourke wanted to speak to him after the meeting. He went for lunch and was approached by the applicant who asked if he could speak to him. His recollection was that the applicant asked for more money, he had no recollection of the applicant asking about promotion on a previous occasion. Fionagh explained that there was no more money available and said that the annual pay increases had been given some weeks previously. At this meeting the applicant did not mention payment for overtime however, he did mention that he had been offered another job. He also said that the discussion became heated and the applicant stood up, placed his hands on the table and said, "I'm away", and walked out. Mr McGovern said that at this stage he thought he had resigned and said that it was his body language which convinced him.

After the applicant left, Mike Gatts spoke to Jim McGovern and asked him what had happened and mentioned that he believed that the applicant had the opportunity of a job at Christie's. Fionagh told Mike that she would be in touch with him later and under cross-examination Mr McGovern said that they needed things sorted out for Christmas so he and Fionagh made the decision that it was in the best interests of the Fourwinds to let him go. They then told Mr Gatts to take his swipe card and keys when he returned at 6.00 pm.

12. Mr Millen made a lengthy submission to the tribunal on the issue of unfair dismissal and whether in fact there had been a dismissal.

Mr Millen relied on the words of the applicant at the meeting of 29 November when he was alleged to have said "I'm afraid I'll have to leave" and placed his hands on the table and said "I'm away". The tribunals notes of Mr McGovern's evidence on the matter was that the applicant said "I'm away" and walked out of the room. Mr Millen also made submissions in respect of the applicant's claim to be entitled to payments for overtime.

13. The tribunal noted that the applicant's claim related to several issues namely:-

(i) Breach of contract.

(ii) Refusal to pay notice pay.

(iii) Unfair dismissal.

(iv) The Working Time Regulations.

The tribunal was satisfied that the applicant's entitlement in respect of holidays was 17 days plus 3 days he carried over from the previous year. He had taken 15 days leave so that meant he was to be paid one week's holiday pay and he was paid that when his employment terminated. The tribunal accepts the evidence that he was entitled to a further payment in respect of two statutory days holiday and the tribunal calculated that he should have received an additional sum of £116.00 for those days.

The tribunal were of the unanimous opinion that the applicant was dismissed without notice and that he therefore was entitled to be paid for one week's pay in lieu of notice.

The tribunal accepts the evidence of the applicant that the meeting between himself, Fionagh Rann and Jim McGovern got particularly heated when Fionagh Rann said that he was lucky to be duty manager in the Fourwinds as he had come from a two star hotel in Derry. She had got very angry and he said that he did not want to get involved in a slanging match with his superiors and it was in these circumstances that he got up and said, "I'm away", and indicated that he would return at 6.00 pm as he was on a split shift. The tribunal accepts that at no time did the applicant offer his resignation, if he had intended to resign why would he have reported back at 6.00 pm. The tribunal do not accept that the putting up of the hands to Mr Gatts and saying "I'm sorry" supported the assertion that he had resigned. At the time these words were spoken the applicant had just left a heated discussion with senior management and was clearly indicating that he did not want to discuss the matter at that stage with Mr Gatts, nothing more. Mr Gatts evidence was that when the applicant left at 3.00 pm he still considered him to be an employee and it was what happened subsequently that lead to his dismissal.

The tribunal do not accept that the applicant used unambiguous words of resignation in fact the tribunal are of the opinion that he did not use any words which indicated that he was resigning. The tribunal also noted that it was usual practice when there was a voluntary resignation for the employee to be asked to submit a letter of resignation. This was not done in this case because there was no voluntary resignation the applicant was dismissed. The tribunal calculated his entitlement to compensation as follows:-

(a) For unfair dismissal –

Basic compensation – one week @ £227.00 net pay - £227.00

Loss of wages. The applicant's evidence was that he was out of work for one and a half weeks before taking up a new post . He did not claim loss of wages in the new post.

One and a half weeks @ £290.00 total - £435.00

Total compensation for unfair dismissal = £ 662.00

(b) Payment in lieu of statutory holidays = £ 116.00

(c) One week's pay in lieu of notice - = £ 290.00

Total compensation payable by the respondents = £1,068.00 =======

14. Working Time Regulations

It was clear that the respondents' witnesses had no knowledge of the Working Time Regulations. Mr McAllister claimed knowledge of the Health & Safety legislation but did not know the provisions of the Working Time Regulations. It was not disputed that the applicant worked in excess of the average 48 hours per week, in fact the records would show that he worked often in excess of 50 hours per week. The respondents being unaware of the provisions of the Working Time Regulations did not ask employees to sign an Opt Out Agreement to the effect that the employees were prepared to work for more than the average 48 hours per week.

The jurisdiction of the tribunal under the Working Time Regulations relates to daily rest, weekly rest periods, rest breaks and annual leave and the additional provisions and Articles 24 and 25(3) 27(2) of the Regulations. The enforcement functions under the Regulations are exercised by the Health & Safety Executive. The applicant's complaint did not relate to the matters within the jurisdiction of the tribunal. The question to be determined by the tribunal, was the applicant entitled to payment for overtime? The respondents hand book states that it was a matter for the discretion of the manager as to whether overtime was paid. All the witnesses agreed that overtime was not normally paid to managers except in exceptional circumstances e.g., to chefs when they threatened to walk out. Hourly paid staff were entitled to overtime payments.

The tribunal accepts that the applicant raised the issue of the hours he worked for which he was not paid with Jane O'Rourke. She said that she did not have the authority to authorise payment and mentioned it to Mr McAllister. However, he did not make a formal application for the payment of overtime. His contract did not provide for it and the tribunal were of the unanimous opinion that the applicant had not proved his entitlement for payment for excess hours worked and his application in this respect is dismissed.

15. Interest on Industrial Tribunal Awards

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

Chairman:

Date and place of hearing: 6-8 October 2003, Belfast.

Date decision recorded in register and issued to parties: