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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Millen v Cummings & Anor [2006] NIIT 2810_04 (28 April 2006) URL: http://www.bailii.org/nie/cases/NIIT/2006/2810_04.html Cite as: [2006] NIIT 2810_04, [2006] NIIT 2810_4

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2810/04

CLAIMANT: Gareth Hugh Francis Millen

RESPONDENTS: 1. Jim Cummings

2. Bracken Agencies Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to compensation as set out in the Schedule hereto, together with one week's notice wages and two week's holiday pay. Calculations being set out in the said Schedule.

Constitution of Tribunal:

Chairman: Mr Cross

Members: Mrs Hamilton

Mr McAnoy

Appearances:

The claimant appeared in person and was unrepresented.

The respondents were not represented and did not appear before the tribunal. The tribunal had the respondents' statement attached to the Notice of Appearance by the respondents.

ISSUES

1. The identity of employer was in doubt.
2. The claimant claimed that he had been unfairly dismissed by the respondents after a row between the claimant and the first named respondent, following an incident in the shop, where the claimant worked for the respondents. The incident had occurred in front of customers. The first named respondent claimed that the claimant had resigned from his position as a supervisor in the shop.
3. The tribunal had to consider whether this was a claim of constructive dismissal under Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996 (which provides the employee with a right to terminate his contract of employment because of the conduct of the employer), or a dismissal by the employer under Article 127(1)(a) of the said Order (where the employer terminates the contract with or without notice).

THE EVIDENCE

4. The tribunal heard the oral evidence of the claimant concerning the incident in the shop and preferred this evidence to the written statement which had been provided by the respondents. The claimant's evidence was tested by questions from members of the tribunal. The claimant whilst appearing to have been a little headstrong appeared to the tribunal to be a truthful witness, prepared to admit that he may not have acted completely sensibly.

THE TRIBUNAL FOUND THE FOLLOWING FACTS

5. The claimant who was born on 28 August 1982 commenced employment with the second named respondents in September 2003 and was at first a part-time employee but subsequently in about March 2004 became a full-time employee.
6. On Friday 1 October 2004 when the claimant failed to respond quickly to a request by the first named respondent the respondent gave him a dressing down in a loud voice in front of customers.
7. Shortly after this incident the claimant told the first named respondent that he did not like the way he was spoken to and a somewhat heated situation arose. As a consequence the claimant stroked his name off the shop duty rota for the following week. He was due to return to work on the following Monday, the Saturday and Sunday being days off for him.
8. On Sunday at midday, a senior supervisor, Isobel, telephoned the claimant to say that the respondent had told her to ask for the return of his keys and uniform on the following Monday.
9. On the following Monday the claimant went to the shop and returned the keys and the uniform and the claimant received his deposit for the uniform from the first named respondent. However, he received no other monies from the respondent in connection with his notice entitlement and holiday pay entitlement.
10. The employer of the claimant is the second named respondent which operated the shop known as Centra Portstewart. The first named respondent is the manager of the shop and himself an employee of the second named respondent.
11. The claimant made numerous attempts to obtain employment but was out of work for a year claiming Job Seekers Allowance.

DECISION OF THE TRIBUNAL

12. The tribunal having considered these facts, hold that the first named respondent did belittle the claimant in front of members of the public and that a row occurred between the two men. As a result of this in a fit of annoyance the claimant stroked his name off the rota for the following week. Nothing was said about resignation or about dismissal by either party. In the absence of the first named respondent from the hearing and in the light of the facts found above, the tribunal hold that the first named respondent should have had some discussion with the claimant to resolve the situation that had arisen. The first named respondent, however, merely asked his senior supervisor to telephone the claimant and request the return of the uniform and keys. This the tribunal hold was the dismissal (under Article 127(1)(a) of the Order), of the claimant by the first named respondent. The tribunal do hold that the claimant was partly responsible for his own dismissal in taking the action of striking his name off the rota for the following week.
13. The tribunal had only the first named respondent's written account of the incident. The tribunal was unable therefore to question the first named respondent. The tribunal hold that the first named respondent being the more experienced person in this situation should have discussed the matter with the claimant rather than merely assuming that he had resigned, which appears to be the first named respondent's case. The tribunal considered that the opportunity to do that might have been when Isobel telephoned on the Sunday morning when she could have sought clarification on exactly what the claimant wanted to do and asked him if he had resigned his position.
14. In all these circumstances the tribunal are unanimous in their decision that the first named respondent (acting on behalf of the second named respondent) unfairly dismissed the claimant. However, the claimant was partly responsible for his dismissal and the tribunal therefore reduces the amount of compensation payable to him for unfair dismissal by 20%. He only regained full-time employment a year later. The tribunal award 3 months wages as compensation. The claimant received Job Seeker's Allowance.
15. The tribunal accepts the evidence of the claimant that he was not paid for his lying week and that he was due holiday pay. The calculation of holiday pay was somewhat difficult, as the situation was that the claimant was working part-time for

part of the year and then full-time. Making the best calculation they can and making allowance for the fact that the claimant did take some holiday and taking into

account, the fact that he worked certain bank holidays the tribunal hold that he is entitled to two week's holiday pay.

16. The tribunal is satisfied from the evidence available and from a letter from the respondents solicitors which sought to add the name of the second named respondent to the title to the claim, that the second named respondent is the employer of the claimant. The compensation is thus awarded against that respondent and the first named respondent is dismissed from the claim.
17. The Recoupment Regulations laid down under the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 apply to this case and details of how payments are to be made are set out in the Annex attached to this decision.
18. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

COMPENSATION

Schedule

Basic Award

½week pay

(£200.00 per week) = £ 100.00

Compensatory Award

3 months net pay

(12 x £168.86) = £2,026.32

£2,126.32

Less 20% thereof = £ 425.26

£1,701.06

2 weeks holiday pay

(2 x £168.86) = £ 337.72

1 weeks notice = £ 168.86

TOTAL = £2,207.64

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Chairman:

Date and place of hearing: 28 April 2006, Belfast.

Date decision recorded in register and issued to parties: