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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gormley v Leonard McGrath, Building Cont... [2008] NIIT 457_08IT (23 September 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/457_08IT.html Cite as: [2008] NIIT 457_08IT, [2008] NIIT 457_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00457/08

CLAIMANT: Alan Gormley

RESPONDENT: Leonard McGrath, Building Contractor

DECISION

The unanimous decision of the tribunal is that the claimant was dismissed and that the dismissal was automatically unfair because the respondent failed to comply with the requirements of the statutory dismissal procedure. However, the Tribunal has reduced any compensation payable by 100% on the basis of the claimant's contributory fault and no compensation is therefore payable.

Constitution of Tribunal:

Chairman: Mr N Kelly

Members: Mr J Nicholl

Mr J McDonnell

Appearances:

The claimant was represented by Mr Peter McCorkell, Barrister at Law instructed by Fahey Corrigan Solicitors.

The respondent was represented by Mr C Flanaghan, Barrister at Law instructed by McHugh Lynam Solicitors.

Relevant Issues

1. The issues for the Tribunal to determine were;

(i) Did the claimant resign or was he dismissed?

(ii) If the claimant was dismissed;

(a) When was he dismissed?

(b) Was the appropriate statutory dismissal procedure completed? If not was the non-completion of that procedure mainly attributable to the respondent?

(c) Did the claimant's conduct contribute to his dismissal, and if so, to what extent?

Relevant Law

2. Article 130A of the Employment Rights (Northern Ireland) Order 1996 provides as follows:

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if

(a) One of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to this dismissal;

(b) The procedure has not been completed, and

(c) The non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to paragraph (1) failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4) (a) as by itself making the employer's actions unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure;

(3) For the purpose of this Article, any question as to the application of a procedure as set out at Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to Regulations under Article 17 of that Order".

3. Article 17 of the Employment Northern Ireland Order 2003 provides as follows:

"(1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.

(2) If, in the case of proceedings to which this Article applies it appears to the Industrial tribunal that;

(a) The claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) The statutory procedure was not completed before the proceedings were begun, and

(c) The non-completion of the statutory procedures was wholly and mainly attributable to failure by the employee –

(i) To comply with the requirement of the procedure or

(ii) To exercise a right of appeal under it,

It shall, subject to paragraph (4) reduce any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so reduce it by a further amount, but so as to make a total reduction of more than 50%.

(3) If in the case of proceedings to which this Article applies, it appears to the Industrial Tribunal that;

(a) The claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) The statutory procedure was not completed before the proceedings were begun, and

(c) The completion of the statutory procedures was wholly and mainly attributable to failure by the employer to comply with the requirement of that procedure,

It shall subject to paragraph (4), increase any awards which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.

(4) The duty under paragraph (3) to make a reduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase by that percentage unjust or inequitable, in which case the Tribunal may make no reduction or increase or a reduction or increase at a lesser percentage as it considers just and equitable in all the circumstances.

(5) Where an award falls to be adjusted under this Article and under Article 27, the adjustment under this Article shall be made before the adjustment under that Article.

4. Article 158A of the 1996 Order provides as follows;

"Where and award of compensation for unfair dismissal falls to be

(a) reduced or increased under Article 17 of the Employment (Northern Ireland) Order 2003 (non-completion of statutory procedures); or

(b) Increased under Article 27 of that Order (failure to give statement of employment particulars),

The adjustment shall be in the amount awarded under Article 152(1)(b) and shall be applied immediately before any reduction under Article 157(6) or (7)."

Article 156(2) of the 1996 Order provides as follows;

"Where the tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."

Article 157(6) of the 1996 Order provides as follows;

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

Regulation 3 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulation (Northern Ireland) 2004 provides as follows:

"3(1) Subject to paragraph (2) and Regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

(2) Subject to Regulation 4, the modified dismissal procedures applies in relation to a dismissal where;

(a) The employer dismissed by employee by reason of his conduct without notice,

(b) The dismissal occurred at the time the employer became aware of the conduct or immediately thereafter,

(c) The employer was entitled, in the circumstances to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice and,

(d) It was reasonable for the employer, in the circumstances to dismiss the employee before enquiring into the circumstances in which the conduct took place.

But neither of the dismissal and disciplinary proceedings applies in relation to such a dismissal where the employee presents a complaint relating to the dismissal to a Tribunal at a time when the employer has not complied with paragraph 4 of the Schedule 1."

Relevant Facts

5. The complainant was a general labourer employed by Mr McGrath (the respondent), who carried on business as a building contractor. The respondent's wife Mrs Patricia McGrath was responsible for the administration of the business including the financial accounts and personnel matters. The business employed 12 people.
6. In his claim form, the claimant alleged that he had commenced employment with the respondent on 1 January 1999. However in evidence before the Tribunal, he claimed that he had commenced employment in July 2000. Mrs McGrath, whose evidence was in all respects clear and convincing, stated that the claimant's employment commenced on 19 February 2001. Apart from the contradiction noted above between the claimant's statement in his claim form and his oral evidence, the claimant admitted under cross-examination that he was only making a "rough guess" at the commencement date of his employment. The Tribunal prefers Mrs McGrath's evidence and concludes that the claimant commenced employment on 19 February 2001.
7. The respondent undertook general building work but the bread and butter of his business was a measured term maintenance contract with the Northern Ireland Housing Executive ("the Executive"). Under this contract, the respondent carried out various types of building work for the Executive, including the clearing out of houses after a tenant had terminated a tenancy and moved out. This type of work was notified to the respondent in a routine weekly meeting with the Executive and with one exception, involved situations where the tenant, or, in the case of a deceased tenant, the tenant's family, had already removed any property that they wished to and had handed back the keys to the Executive. The respondent would clear out and clean the interior of the premises and the garden and make the premises ready for the next tenant. The unwanted contents would then be dumped, either in a council skip or in a skip in the respondent's own building yard.
8. The claimant was initially employed by the respondent on general building work. In 2006 and 2007, he was employed mainly on jobs carried out by the respondent for the Executive, including house clearing.
9. The claimant's attendance record was extremely poor. During 2007, he was absent from work on 68.5 days and many of these absences were unauthorised.
10. The respondent knew the claimant's family and, in particular, the claimant's mother. They came from the same area. The respondent appears to have treated the claimant in a remarkably generous manner. For example, the respondent insured the claimant's private car on the respondent's fleet insurance on at least one occasion and the respondent also advanced him loans on his wages. The respondent also provided clothing to the claimant. The Tribunal accepts Mrs McGrath's clear and convincing testimony that the respondent and Mrs McGrath made significant efforts to help the claimant during his employment and that they had been extraordinarily lenient in relation to the claimant's frequent and unauthorised absences from work. This had not been a normal employer/employee relationship.
11. On 21 November 2007, the respondent was contacted by the Executive. A tenant had committed suicide in an Executive house earlier that morning. He had used a shotgun. This incident had occurred in the living room, which the tenant had been using as a bedroom. The respondent was asked by the Executive to go immediately to the house and to clean the living room so that the relatives could then visit the property and remove any items that they wished to retain before the normal cleaning and refurbishment could take place to enable the property to be reallocated in due course. The respondent asked the claimant to carry out this task and told him that he was to clean only the living room at this stage. He was told to remove and bag any blood-stained bed clothing and not to remove anything else. It was made clear to him that the relatives were coming to the property the next day. The respondent also arranged for the claimant to go back to the property on the next day to complete the clearing of the house once the relatives had sorted out the tenant's possessions.
12. When the claimant arrived at the house on 21 November 2007, the PSNI were leaving the property. The claimant stated in evidence that he did not know whether the relatives had already cleared out the house. The tribunal does not accept this evidence. The tenant had only been dead for a few hours. It would have been obvious to the claimant, given his graphic description of what he had found in the living room, and given the clear instructions from the respondent that the relatives of the deceased tenant had not yet had an opportunity to check the contents of the house and to remove whatever items they wished to retain.
13. The claimant cleaned out the living room and bagged and disposed of the bedclothes as instructed. However he also removed two fishing rods, a box of shotgun cartridges and a steel gun cabinet.
14. The claimant accepted in evidence that he had taken the gun cabinet home. However, he sought to minimise the significance of this action. He said that the gun cabinet was no good to anyone and that it had no keys. When asked by the Tribunal why he had decided to bring the cabinet home, if it was no good to anyone, his response was that it was "just something to have".
15. Mrs McGrath stated in evidence that the claimant had subsequently told her that he thought the gun cabinet was worth £70 and he knew someone who wanted one. The Tribunal does not accept the claimant's version of events in relation to this gun cabinet. This item was a heavy rectangular metal box approximately 4ft in length. If, as the claimant alleged, it was no longer fit for its intended purpose it is hard to see why the claimant would have removed it and taken it home. The Tribunal has real difficulty in understanding how anyone would have regarded this item as "something to have". Such an object would have had limited aesthetic value. The Tribunal prefers Mrs McGrath's evidence and concludes that the claimant removed this item from the house to sell it later. The tribunal also concludes that the respondent was entitled to conclude, and did conclude, that the claimant had done so.
16. The claimant stated in evidence that he had taken the fishing rods and the shotgun cartridges from the house and that he left them beside the skip in the respondent's building yard. His explanation in evidence for leaving these items beside the skip, rather than in the skip, was that "someone might have a use for them". Again the claimant sought to minimise the significance of removing these items from the house. The claimant stated that the fishing rods were "no good". When asked what was wrong with the rods, his response was "there was no line with them or anything like that".
17. The respondent and Mrs McGrath stated that the rods had been found later on 21 November 2007 in the back of the claimant's locked van and that the claimant had subsequently phoned the respondent to ask if the rods could be returned to him. The respondent refused. By that stage the rods had been returned by the respondent to the tenant's family.
18. The Tribunal again prefers the evidence given on behalf of the respondent. If the rods had been "no good", as maintained by the claimant, they would simply have been thrown by him into the skip, not, as he alleged, left beside the skip in case they might have been of use to anyone. It was not alleged by the claimant that the rods were broken or damaged in any way. The Tribunal is satisfied that the claimant left the rods in the back of his locked van to be collected later and, more importantly, is satisfied that the respondent was entitled to conclude, and did conclude, that this was the case.
19. The Tribunal does not accept the claimant's evidence that he left a box of shotgun cartridges lying unattended beside a skip in the respondent's yard, on the off chance that someone might find a use for them. It is difficult to conceive that anyone in Northern Ireland would have committed such an irresponsible and reckless act. Again the Tribunal prefers the evidence of Mrs McGrath who stated that the claimant later delivered both the gun case and the cartridges to her at her home on Saturday 24 November 2007.
20. On Friday 23 November 2007, the PSNI contacted the respondent's foreman, Kevin Corcoran to tell him that the gun cabinet and the shotgun cartridges were missing from the house and to ask whether they had been removed by one of the respondent's workmen for safekeeping. The PSNI were naturally concerned about the shotgun cartridges in particular and indicated that if the property was returned promptly there would be no prosecution. Mr Corcoran tried unsuccessfully to telephone the claimant on several occasions by ringing the claimant's mobile number. These attempts were made in Mrs McGrath's presence in the respondent's office. Mr Corcoran and Mrs McGrath were both extremely concerned about the possible effect of this incident on the contract between the respondent and the Executive. While they were discussing the matter, another employee entered the office to say that he had been sent by the claimant to collect his wages and that the claimant had just phoned him from his mobile number. Mr Corcoran borrowed that employee's personal mobile and, using that telephone, phoned the claimant again on his mobile number. On this occasion the claimant immediately answered. Mr Corcoran told the claimant that the PSNI wanted the property back and that if it was returned there would be no prosecution. The claimant denied, and persisted in denying, that he knew anything about the items being removed from the house. He stated that he did not want to speak to Mrs McGrath but asked if the respondent was present. He was informed the respondent was not present.
21. Later that day, the claimant contacted the respondent by telephone and told him that he had in fact taken the items from the house. He arranged to deliver them to the respondent's home. The respondent was not present when the claimant arrived at his home on 24 November, and the claimant spoke to Mrs McGrath before carrying the gun cabinet and the shotgun cartridges to her car so she could deliver them to the PSNI.
22. During this conversation, the claimant stated that he had not initially admitted taking the items because he had been confused. Mrs McGrath told him that she and the respondent were concerned at the effect that this incident could have on the Executive contract and that the Executive would not want him on such work in the future. He replied "I understand – I do not blame you." He asked for and received his wages and then left.
23. The claimant did not turn up for work again until the 12 December when he arrived at the respondent's Ederney office with a self-certification note and a doctor's certificate which only covered part of the intervening period between 21 November and 12 December. The claimant told Mrs McGrath that he had been off sick. Mrs McGrath was confused and phoned the respondent. The respondent advised Mrs McGrath that the claimant was probably just looking for money. She then told the claimant that he was no longer their employee. He said he needed a P45 to sign on. She gave him a P45 and a cheque to cover some sick pay she felt might have been owed to the claimant.
24. The respondent later received the standard Social Security Agency letter seeking details of the circumstances in which the claimant's employment had terminated. Mrs McGrath completed this form by indicating that the claimant had been dismissed for poor attendance. She stated in evidence she did not want to get the claimant into further trouble by mentioning the removal of the items from the house or the involvement of the PSNI. Given the unusual nature of this employment relationship and the considerable and unusual leniency shown by both the respondent and his wife to the claimant during the claimant's employment, the Tribunal accepts this explanation.

Decision

25. It is for the claimant to prove firstly that he was dismissed and that he did not resign. The respondent in answer to a direct question from the Tribunal stated that the claimant had been dismissed. Mrs McGrath's evidence was that her understanding of the discussion between her and the claimant on 24 November was that the contract had ended by mutual agreement. However, her evidence was clear in that the claimant had said nothing which could be construed as an unambiguous resignation. Her reply to the social security agency could simply have indicated, by ticking a different box, that the claimant had resigned. It did not do so.
26. The matters which a Tribunal must consider in determining whether or not an employee has resigned, are set out in Harvey Volume 1, paragraphs D(1) 225-249 and are discussed most recently in Dalitis T/A Shanklin Motor Company –v- Plissi (EAT/0127/08). The position can be summarised as;

(1) The intention of the speaker of the relevant words is not the relevant test.

(2) If the words are unambiguous they must be given effect by the Tribunal (subject to any subsequent withdrawal);

(3) If the words are ambiguous then the Tribunal must consider all the surrounding circumstances and decide, on the basis of an objective test, what the words would have meant to a reasonable listener."

27. The respondent was clear that he felt that the claimant had been dismissed during the conversation between the claimant and the respondent's wife on 24 November. The evidence of the respondent's wife was slightly different. However, she could have easily indicated, in her reply to the Social Security Agency, that the claimant had resigned. While the Tribunal accepts that she did not want to get the claimant into further trouble by mentioning the removal of the items from the house, a statement that he had resigned would not have placed him in any particular difficulty. The tribunal concludes that the respondent's wife was unsure whether the claimant had resigned. The Tribunal therefore concludes in all the circumstances that the claimant was dismissed on 24 November 2007 and that he did not resign.
28. It is then for the respondent to establish the reason for the dismissal.
29. The claimant's claim form was in the opinion of the Tribunal a completely dishonest document. In that document he alleged that he had been told that he was being made redundant because of a downturn in work. That claim form did not mention the removal of the items from the house or the subsequent involvement of the PSNI leading to the return of those items. It did not mention his substantial and unauthorised absences from work.
30. The Tribunal having considered carefully the evidence given by the respondent, by Mrs McGrath and by the claimant, concludes that the primary reason for the dismissal was the removal of the gun cabinet, the shotgun cartridges and the fishing rods from the house on the 21 November 2007 and that the respondent had also taken into account the claimant's persistent unreliability and poor attendance. The tribunal does not accept that the dismissal was in any way based on redundancy. There was no evidence of any significant downturn in work and the claimant had been replaced.
31. None of the steps prescribed by either statutory dismissal procedure were implemented by the respondent. The Tribunal accepts that this occurred because the respondent and his wife were simply unaware of these requirements and that they acted in good faith throughout. If compensation were payable in this case, the statutory uplift would have been fixed at the minimum of 10%.
32. The respondent and his wife were faced with a situation in which the claimant had disobeyed clear instructions not to remove property, other than the soiled bedclothes, from the house. He had placed them in a position where they could have lost the Executive contract which was a fundamental and important part of their business. When the matter was first put to the claimant by the respondent's foreman, he denied that he had removed the items from the house and persisted in that denial. It is only sometime after he was told of the PSNI promise not to pursue the matter further if the property were returned, that he admitted that he had in fact removed the items from the house. No further investigation was required. The claimant had a poor attendance record and was totally unreliable. In such circumstances, any reasonable employer would have been entitled to have summarily dismissed him.
33. The failure of the respondent to implement the statutory dismissal procedure renders the dismissal as automatically unfair. The Tribunal does not accept that the provisions of Article 130A (2) of the 2003 Order can assist the respondent in these circumstances. Paragraph (2) is subject to paragraph (1) and not the other way round. Once a dismissal is deemed to be unfair under paragraph (1), paragraph (2) can have no application. It can only be relevant to a procedural failure which falls outside paragraph (1) – see paragraphs 20 and 21 of the EAT decision in Mason v Governing Body of Ward End Primary School [2006] IRLR 432.
34. The Tribunal therefore has to consider the issue of contributory conduct under Articles 156(2) and 157(6) of the 1996 Order.
35. The Northern Ireland Court of Appeal determined in Morrison v Malgamated Transport and General Workers' Union [1989] IRLR 361 that;

"(i) The Tribunal must take a broad commonsense view of the situation;

(ii) That broad approach should not necessarily be confined to a particular moment not even the moment when employment is terminated;

(iii) What has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and

(iv) The employee culpability or unreasonable conduct must have contributed to or played a part in the dismissal."

36. The Tribunal recognises that a 100% in both the basic and compensatory awards including any statutory uplift, should be a rare occurrence and applied only in exceptional circumstances. That said, it is difficult to conceive of a situation where a 100% reduction would be more appropriate. The claimant's conduct both in relation to his poor attendance, unreliability and ultimately his removal of the 3 items from the house was, in employment terms, extremely blameworthy. The removal of the items in particular had placed a substantial part of the respondent's business in jeopardy and was, on any reading of the events, reprehensible conduct on the part of the claimant. The Tribunal is entirely satisfied that the removal of these items and to a lesser extent the claimant's general unreliability were the only reasons for his dismissal and that his culpable misconduct contributed entirely to that dismissal. The Tribunal is satisfied that there was no question of a significant downturn in work or a redundancy. The Tribunal therefore reduces compensation by 100% and no compensation is therefore payable.

Chairman:

Date and place of hearing: 28 August 2008, Enniskillen.

Date decision recorded in register and issued to parties: