BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
THE
INDUSTRIAL TRIBUNALS
CASE REF: 1349/08
CLAIMANT: John Goodfellow
RESPONDENT: Fresh Fields at
Warrenpoint
DECISION
The
unanimous decision of the tribunal is that the claimant was unfairly
dismissed by the respondent. The respondent is to pay to the claimant
compensation of £11,575.00.
Constitution
of Tribunal:
Chairman:
Mrs Watson
Members: Mrs
Doran
Mr
Hughes
Appearances:
The
claimant was represented by Mr Michael Landers of the Irish Municipal
Public and Civil Trade Union.
The respondent company was
represented by Mrs Lisa Hall, Director
Issue for determination
For
the claimant, Mr Landers informed the tribunal that the claimant
alleged that he had been unfairly dismissed from his employment by
the respondent company as a Master Butcher. The dismissal was
alleged to have been in breach of the statutory dispute resolution
procedures set out in the Employment (Northern Ireland) Order 2003.
For the respondent, Mrs Hall admitted
that the claimant had been dismissed but stated that the reason for
the dismissal was gross misconduct.
The issue for the determination by
the tribunal was whether the dismissal was automatically unfair for
being carried out in breach of the relevant procedures and if so,
the appropriate remedy.
Findings of relevant facts
The
respondent company, Fresh Fields, was established in late 2006 by
Marcus Hall the Director. Mr Hall appointed a General Manager, Neil
Davey, who was responsible for the day-to-day operation of the
business which consisted of a butchery, bakery/kitchen and
delicatessen. The claimant took up employment with the respondent
on 25 September 2006 as a Master Butcher to set up and run the
butchery section which was to be the largest part of the shop. His
salary was £509 per week, or almost £26,500 plus annual
bonus.
The
claimant had been a Master Butcher and had won accolades for his
skills including Northern Ireland Master Butcher of the Year in
1993, 1994 and 1995. The latter year he also won the All Ireland
Award. At that time he was the manager of the Good Food Shop in
Newry. After that, he ran his own butcher shop for some time in
Rostrevor and later his own sandwich shop in Newry.
At
his interview, the claimant was asked to account for gaps in his
employment history when he had been ill. While the claimant
informed the tribunal that he had given a full account of his
illness, the tribunal preferred the evidence of Mr Hall that the
claimant had told them that he had suffered a serious family trauma
and had been advised to take time off from work but that he was then
fully recovered with little likelihood of recurrence. In fact, the
claimant had sought medical assistance on 17 May 2004 when he was
referred to Daisy Hill Psychiatric Clinic. On medical advice, he
sold his butcher’s shop to a family member and attended a 13
week therapy of Grief Counselling. He also attended the Psychiatric
Clinic and was taking anti-depressant medication for at least two
years. The claimant had suffered a recurrence of his illness after
his dismissal but had not told his representative, Mr Landers
about this until shortly before the hearing of this case. The
tribunal were of the view that it was unlikely therefore that the
claimant would have given these details to a prospective employer
and so preferred the respondent’s account.
Mr
Hall also gave evidence that the claimant had worked very hard and
had successfully recruited his own staff and established the
butchery department. He said that the claimant was very good at his
job and always had a very good display and established good customer
relations.
In
about November 2007, Neil Davey was dismissed for dishonest misuse
of the company credit card. The business was re-organised and the
claimant at that time took on additional managerial duties in the
delicatessen. Mrs Lisa Hall took over the day-to-day running of the
business even though she had no previous business management
knowledge or experience. Mr Hall was there from time to time but
his main role was with the livestock with which he supplied the
shop. Mrs Hall soon discovered that little or no proper record
keeping or administration work had been done by Mr Davey and that
the business was not as well managed or successful as they had been
led to believe.
None
of the employees had a written contract of employment or terms and
conditions or job description. Mrs Hall engaged a business services
company who provided her with a handbook for employees containing
all the relevant policies and procedures. Theresa Magorrian was
taken on as Office Manager and her contract was used as a template
for drafts which were given to the other employees. Mrs Hall
also drafted job descriptions from information on the internet. The
managers were asked at the regular management meetings to work with
Mrs Hall to finalise and agree the documentation for themselves and
their staff. Despite several requests and deadlines, the management
meeting minutes indicate that the claimant did not co-operate fully
and failed to finalise his job description or contract of
employment.
At
the same time, David Brighton, a consultant was engaged to examine
how the business was operating and give advice and guidance for
improvement. He identified a major problem related to costs and
price control. It appeared that Mr Davey had used a local
branch of a national supermarket as a benchmark and fixed the prices
in Fresh Fields to match, regardless of the original cost price.
There also did not appear to be any evidence of negotiating costs
with suppliers. The tribunal heard evidence from Mr Damien Trodden,
a retired Merchant Navy cook who was employed by the respondent as a
buyer. He went to markets and bought high quality and expensive
fruits and vegetables which were often wasted because of poor
storage and/or marketing.
In
the butchery department, Mr Brighton questioned whether there was a
need for the four butchers employed there and noted that the
claimant was not aware of weekly sales, gross profit and costs. He
also expressed concerns about failure to properly record wastage,
internal transfers and reductions, principally in the butchery
department but in other sections as well.
Mrs
Hall met with the managers and discussed the recommendations that
Mr Brighton had made. The tribunal was provided with
documentation from regular management meetings which indicated that
much time and effort was spent addressing the deficiencies of the
previous General Manager. Mrs Magorrian was appointed on 3 December
2007 and within a relatively short time she was given responsibility
for ordering stock for all departments. A new system was introduced
which allowed better control over pricing and stock control through
the scales and the tills. Mrs Magorrian required information from
each department to programme the scales and update prices. The
tribunal was told that the claimant did not provide Mrs Magorrian
with all the information she required and she sometimes had to ask
another one of the butchers or make informed guesses of prices which
would have affected the accuracy of turnover and sales figures.
There were also many references to waste reports either being
incomplete or not provided. The tribunal was satisfied that the
claimant, the most senior employee of the business, was not being as
helpful as his employers needed at such a difficult time to overcome
the problems left by Mr Davey. When put to him in
cross-examination, the claimant did not accept that the minutes
recorded or illustrated any deficiencies in his performance of his
management duties. The tribunal found this view was not reasonable
in the circumstances.
In
early April 2008, the claimant approached Mrs Magorrian and asked
her about his annual bonus. She advised him to ask Mrs Hall which
he did. The claimant identified this incident as being the
beginning of his problems with his employers. It was his belief
that the respondent was annoyed at him for asking for the bonus and
said that Mrs Hall did not speak to him for some time after this and
that the atmosphere changed and his working life became more
difficult. The tribunal accepted that Mr Hall especially was not
happy with the request but found, on the balance of probabilities,
that the request for a bonus was simply another difficulty for the
respondent in relation to the claimant. In addition, Mrs Magorrian
had been told by other employees that Mr Davey had made promises of
time off or extra money and took the decision to issue a Memo to
staff on 17 April to say that promises made to staff by Mr Davey
would only be honoured if there was written confirmation.
The
claimant denied that he had told Mrs Hall that he had documentation
at home to confirm the basis on which his bonus of £1,050 had
been paid in 2007 but there is a reference to this in one of the
minutes. The tribunal found that Mr Hall wanted to link the
calculation of the bonus to profit but was becoming increasingly
frustrated by the claimant’s failure, as he saw it, to
co-operate with efforts to obtain an accurate profit figure.
On
28 April 2008, Mr and Mrs Hall met with the claimant. Mr Hall noted
that they discussed the following:-
Waste
reports that had first been requested in January were to be completed
and that the cost price/ value of the waste was needed;
Mrs
Magorrian was responsible for all butchery ordering since January;
‘blocking’
information for pigs that was requested to be given to Mrs Magorrian
in January had still not been completed;
the
claimant was to enrol in a Food Hygiene Certificate course as soon as
possible;
all
meat was to be labelled to indicate source as requested.
The
claimant was to supply documentation concerning his bonus agreement
(see above)
These
items were reviewed with the claimant by Mr and Mrs Hall at a
further meeting on 15 May. Most had still to be dealt with fully.
A full stocktaking of the department was ordered to be carried out
before 6 June so that effective tracking could be managed. A
formula for calculating future bonus payment was detailed and the
bonus for 2008 was being paid as a ‘show of goodwill’.
This does not accord with the version of the matter given by the
claimant who said the envelope containing the bonus cheque was
thrown on the desk and he was told he was lucky that they were being
decent with him.
The
Halls met with the claimant again on 3 June. In the note of this
meeting, the claimant’s lack of communication was said to be
‘not acceptable’ and examples where this had impacted
poorly on other areas was noted. Waste report requirements were
still not being met and this was described as ‘unacceptable’.
New product lines to boost sales were suggested.
The
report of the next meeting on 13 June shows a further decline in the
working relationship. It was noted that prices charged to at least
one restaurant had not changed in six months; departmental waste had
not been recorded since 28 April; staff time schedules had not been
provided to the office; not enough progress had been made on the
stock take ordered earlier and no weekly tastings taking place as
had been ordered. While it is not stated in the notes, the claimant
accepted that he was told at this meeting that he had two weeks to
deal with all issues required or he would be dismissed. The
claimant was understandably upset when he left the meeting.
The
claimant returned to the butchery department after the meeting on
the afternoon of Friday 13 June 2008. He said he showed the list of
things to be done to his deputy, Martin, and told him that they
would have to work to get the things done as the Halls were ‘on
his case’. He denied that he had spoken to anyone else about
the outcome of the meeting.
Mrs
Magorrian however gave evidence that she was programming the scales
in butchery on his return and was standing beside the claimant when
he became agitated and in a loud voice said:-
“Who
does Marcus Hall think he is to tell me how to run a butcher’s?
What does he know about butchery or running a business?”
Mrs
Magorrian said she was upset and shocked and advised him that he
should not say anything more. She was not facing the shop floor but
was aware that there were staff and customers still there. She left
shortly afterwards but told the tribunal she thought about what the
claimant had said over the weekend and was very upset. The tribunal
noted that Mrs Magorrian was crying and upset when giving her
evidence. When she returned to work on Monday morning 16 June,
she told Mrs Hall what had happened. Mrs Magorrian expected
that the claimant would be disciplined and was surprised that he was
later dismissed but she still believed that she had done the right
thing.
Damien
Trodden also gave evidence to the tribunal that he had made a
similar derogatory remark about Mr Hall’s business acumen
early on the morning of 13 June (which was actually the day he
left his employment) and Mrs Magorrian had heard this. She told the
tribunal that Mr Trodden was prone to similar outbursts that she
ignored as he often had a ‘rant and rave’ but he was not
a senior manager while the claimant was and Mr Trodden had made his
comment ‘without malice’.
Mr
Hall gave evidence that he had been told by his wife of the
claimant’s remarks on Monday evening. They discussed the
situation and what should happen. The following afternoon, on
Tuesday 17 June 2008, Mr Hall told the claimant he wanted to speak
to him. They went to a store room where Mr Hall sacked the
claimant. When asked why, Mr Hall told the claimant it was because
of the remark he had made on the Friday afternoon which had been
heard by two witnesses whom he refused to identify. The claimant
left his keys in the office and went home.
On
Wednesday the claimant took advice and was told he should contact Mr
Hall and clarify his position. They spoke on the phone in late
afternoon and the claimant asked for his job back. Mr Hall
explained to the claimant that he had thought long and hard before
he made the decision to dismiss the claimant and he was not going to
change his mind. Mr Hall in his evidence to the tribunal then went
on to say that he had spoken to his solicitor that morning and told
her what had happened. He said the solicitor had advised him that
he had not done things properly and that he had to put the reason
for the dismissal in writing and inform the claimant that he had a
right of appeal. When asked by the claimant if there was any point
in appealing, Mr Hall said he told the claimant that he had given it
a lot of thought before he fired him and he was not likely to
‘unfire’ him, but said he had a right of appeal.
The
claimant arranged to call on the following Friday to collect his
wages. He met Mrs Hall who asked him if he wanted to talk to her.
Her evidence was that she had expected him to request an appeal to
her but the claimant told her that there did not seem to be any
point. The claimant collected his things and left.
On
behalf of the claimant, Mr Landers wrote to the respondent on 9 July
2008 and informed them that he regarded the dismissal as unfair and
asked for the reason for the dismissal. He also asked if there was
any appeal against the decision and stated his intention to seek
redress at an Industrial Tribunal. Mrs Hall had taken their
children to her home in the United States for the summer so the
letter was not answered until 2 September 2008 when their solicitor
wrote and said that the claimant had been dismissed for gross
misconduct. The decision to dismiss was claimed to be fair and
proportionate. The solicitor provided the detail of the remark
which was stated to have been ‘an unacceptable outburst in
front of staff and customers’. In addition, the letter
referred to the respondent’s concerns in relation to the
claimant’s conduct over a period of time, the meetings that
had taken place and the ‘formal warning’ that had been
given to him on 13 June 2008. His conduct and lack of consistent
work and attitude was said to have been having a detrimental impact
on other staff.
The
Staff Handbook was included with the letter and Mr Landers was
referred to the Disciplinary Procedures where examples of gross
misconduct were given. Paragraphs E (i), [taking part in activities
which could result in adverse publicity or which cause us to loose
faith in your integrity], and E (n), [gross insubordination and/or
continuing refusal to carry out legitimate instructions],were
referred to in particular.
The
letter also said that the claimant had been aware at all times of
the reason for his dismissal and said he had been offered an appeal
which he had declined. An offer of a further appeal was made.
The
claimant’s originating claim was received by the Tribunal
Office on 15 September 2008.
Other relevant matters
At
this stage of the decision, the tribunal wish to record other
matters relevant to this case. Towards the end of the first day of
hearing, the claimant was giving evidence about the aftermath of his
dismissal. He gave evidence of a return of his depressive illness.
He was referred to the Home Treatment Response Unit from Daisy Hill
Mental Health Department. He was visited daily at home for three
weeks and prescribed antidepressant medication. He was discharged
from Home Treatment on 6 August 2008 but is still attending the
Psychiatric Unit and taking medication.
Mr
Landers informed the tribunal that he had been unaware of the
severity of the claimant’s condition until shortly before the
hearing. The tribunal adjourned for a day to allow time for Mr
Landers to try and obtain a Psychiatric Report but he was only able
to obtain a report from the claimant’s General Practitioner
who enclosed copies of reports she had received from Daisy Hill
Mental Health Department. The tribunal was also taking into
consideration that the respondents, who were not legally represented
at the hearing, should be given an opportunity to consult their
solicitor after receipt of the report.
The
claimant had given evidence that the respondent had been aware of
his medical history when he took up his appointment and this could
have been relevant to the tribunal’s consideration of the
reasonableness of the respondent’s actions and/or whether the
claimant’s mental health had been a factor in his conduct or
his ability to perform his duties, and whether it was likely to
impact on his ability to secure future employment.
The
medical documentation provided was very unsatisfactory not least
because every report in the documentation contained material
inaccuracies and the tribunal was not really assisted in its task by
the content. An exception was that the claimant’s GP had
stated that due to his illness, the claimant had been unable to
recognise the importance of disclosing his medical condition
earlier. It was also apparent that Psychiatric staff were of the
view that returning to work could be beneficial to the claimant’s
condition.
The
tribunal was also aware of the fact that the versions of events
leading to the dismissal given, in evidence by both sides were quite
different. Bearing in mind that the respondent’s version was
corroborated to an extent by documentation and the witness evidence
of Mrs Magorrian who was no longer in their employ, the tribunal
found that the respondent’s version was more likely to be
correct. This is not a reflection on the claimant’s veracity
but merely taking into account the potential effect of his illness
on his recollection and perception of the events.
The tribunal also took into account
that in giving his evidence, Mr Hall made admissions which were
unfavourable to the respondent’s defence and was of the view
that he was being truthful in his evidence.
Relevant law and Tribunal’s
determination
The
Employment Rights (Northern Ireland) Order 1996 provides at Article
130A 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 proceedings
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.
Subject
to paragraph (1) failure by an employee 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 an 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.
36. The
Employment (Northern Ireland) Order 2003 introduced the Statutory
Dispute Resolution (SDR) procedures. Before disciplining or
dismissing an employee, an employer is required to follow these
procedures which essentially require that an employee must be
notified in writing of the grounds on which the employer is
contemplating the disciplinary action or dismissed. The employee is
to be invited to a meeting with the employer at which the employee,
who has a right to be accompanied to the meeting, is given an
opportunity to discuss the matter. After the meeting, the employer
must inform the employee of his decision and inform him of his right
to appeal the decision if he is not satisfied with it.
37. The
tribunal find that the requirements of the Statutory Dispute
Resolution procedures set out in Schedule 1 of the Employment
(Northern Ireland) Order 2003 were not met in this case. The
claimant was not told in writing by the respondent that disciplinary
action was being contemplated or taken or the grounds for doing so.
Nor was he informed that he could be accompanied at the meetings.
The tribunal also find that the meetings that were held did not
comply with the requirements of the SDR procedures as the claimant
was not in any position to respond to the allegations. While Mr Hall
informed the claimant of his right to an appeal, the manner in which
he did so was unreasonable and not likely to result in a different
outcome.
38. The
respondent claimed that the dismissal was a summary dismissal for
gross misconduct as provided for in the Disciplinary Procedures
contained in the handbook. Before the introduction of the SDR
procedures, this could have been a potential defence to an unfair
dismissal claim but the 2003 Order also amended the Employment Rights
(Northern Ireland) Order 1996 by inserting the new Article 130A which
is set out above.
39. As
the tribunal have found that the respondent employer did not comply
with the statutory procedures, it finds that the claimant was
unfairly dismissed. Any question as to the failure to comply with
the requirements of such a procedure,
is required under Article 130A (3) to be determined by reference to
Article 17 of the 2003 Order which allows for adjustments of awards.
Article 17(3)(c) states that where the non-completion was
attributable to the failure by the employer to comply, the tribunal
shall, subject to paragraph (4), increase the award to the employee
by 10% and may, if it is just and equitable in all the circumstances,
increase the award by up to 50%.
40. Paragraph
(4) provides that:-
“The
duty under paragraph (2) or (3) to make a reduction or increase of
10% does not apply if there are exceptional circumstances which would
make a reduction or increase of that percentage unjust or
inequitable, in which case the tribunal may make no reduction or
increase or a reduction or increase of such lesser percentage as it
considers just and equitable in all the circumstances.”
41. The
respondent company showed total disregard for the SDR procedures.
There was no evidence that it
considered its obligations imposed by the statute even though the
solicitor advised Mr Hall to do so. Indeed, the respondent did not
even comply with its own disciplinary procedures. Paragraph 2 of the
introduction to its own procedures, sets out that the aim is to
‘emphasise and encourage improvement in the conduct of
individuals, where they are failing to meet the required standards,
and not be seen as a means of punishment.’ The tribunal is
aware that Mrs Hall in particular made great efforts to assist the
claimant to meet the required standards, but to no avail. The
claimant failed to appreciate the depth of the respondent’s
dissatisfaction with his lack of performance of his managerial
duties. This may have arisen from his previous and subsequent
depressive disorder. The tribunal was unable to make any finding on
this point as the medical evidence provided was not helpful in that
regard. After careful consideration of the findings of fact set out
above, the tribunal considers it just and equitable in all the
circumstances of this case, to increase the claimant’s award by
25%.
42. However,
the respondent claimed that the dismissal was fair and proportionate
in that the gross misconduct was not only related to the outburst on
13 June 2008, but also related to the claimant’s poor work
performance during the previous six months for which he had been
warned, and which was said to have been having a detrimental effect
on other members of their workforce. In the response to the
originating claim form, the respondent claimed that the claimant had
contributed to his dismissal to the extent of 100%.
43. Article
157(6) (2) of the 1996 Order states 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.”
44. In
his evidence, Mr Hall described the 13 June outburst as being ‘the
straw that broke the camel’s back’. If this had been the
only incident on which the decision to dismiss had been grounded, the
tribunal would have been of the view that it was unreasonable. The
tribunal took into account that Mrs and Mr Hall, in very difficult
circumstances after their problems left by Mr Davey, did their best
to put things right in their business as advised by David Brighton,
particularly with regard to costs and pricing. These efforts were
not made easier by the claimant and the tribunal have concluded that
it is just and equitable in all the circumstances of this case to
reduce the compensatory award by 25%.
45. The
claimant also sought compensation for the respondent’s failure
to supply a statement of terms and conditions of employment. The
tribunal finds that as soon as the respondent found that staff had
not been provided with their terms and conditions they engaged the
services of a business services provider and provided each employee
with Employee handbooks and draft contracts which contained the main
terms and conditions. The claimant denied that he had received this
but the tribunal is satisfied by the evidence of Mrs Magorrian that
she provided these to all employees and Mrs Hall who found the
claimant’s copy among items he left after his dismissal.
46.
Compensation
Basic
award
4
weeks pay @ £330 per week £1,320.00
Compensatory award
Weekly
pay before dismissal (Including bonus) £412.00
Weekly
Invalidity Benefit £102.00
Weekly loss £310.00
From 17 June 2008 until 31 January
2009
when
business closed is 32 weeks - £310.00 x 32 £9,920.00
Reduction
for contributory fault @ 25% £2,480.00
£7,740.00
Plus £1,320.00
£9,060.00
Increase
for failure to follow SDR @ 25 % £
2,265.00
£11,325.00
Loss
of Statutory Rights £
250.00
Total award £11,575.00
47. On
behalf of the claimant, Mr Landers applied for costs against the
respondent. The claimant was not legally represented, and in any
event, the tribunal do not consider that the respondent, who believed
it had a defence to the claim, acted unreasonably as they believed,
albeit wrongly, that they had a defence to the claim. The
application for costs is refused.
48. This
is a relevant decision for the purposes of the Industrial Tribunals
(Interest) Order (Northern Ireland) 1990.
Chairman:
Date
and place of hearing: 9 and 11 February 2009;
23-24 March 2009
Belfast
Date
decision recorded in register and issued to parties:
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/nie/cases/NIIT/2009/1349_08.html
