Crabbe v Smyth & Anor [2009] NIIT 5780

THE INDUSTRIAL TRIBUNALS

CASE REF: 5780/09

CLAIMANT: Kenneth Crabbe

RESPONDENTS: Lorraine and Oswald Smyth

T/A Galgorm Castle Bar and Restaurant

DECISION

The unanimous decision of the tribunal is that the claimant was unlawfully dismissed by the respondents and the tribunal awards compensation in the sum of £5,745.96.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Members: Mr N Wilkinson

Mrs M Gregg

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The title to the proceedings

1. The Pavilion Bar is run by Lorraine and Oswald Smyth, trading as Galgorm Castle Bar and Restaurant, who are the claimant's employer for the purposes of these proceedings. The title of the proceedings is hereby amended to reflect this.

The issues

2. The issues to be decided by this tribunal are as follows:-

(a) Did the claimant resign from his employment with the respondent on 21 February 2009 or was he dismissed on 22 February 2009?

(b) If the claimant was dismissed what compensation, if any, is he entitled to?

Sources of evidence

3. The tribunal considered the claim form, the response, documents handed in and referred to by the parties, submissions and the oral evidence of the claimant, Mr McToal, Mr Smyth and Mrs Smyth.

Findings of fact

4. The claimant commenced employment as a barman at the Pavilion Restaurant on 5 March 2005. His contract of employment transferred to the respondent without any break in continuity of employment when they took over the franchise in or around November 2008. He was earning £220.30 gross per week amounting to £188.18 net.

5. The Pavilion Restaurant is attached to a golf club in Ballymena and includes within its premises a licensed bar. Members of the golf club and their families and guests of all ages regularly use the bar and restaurant.

6. Mr Oswald Smyth had no experience in the licensed trade prior to taking over the franchise and initially worked in a general capacity rather than having any specific role in the running of the business. Mrs Smyth had spent all of her working life in the licensed trade and is very familiar with all aspects of it including the licensing laws.

7. The claimant worked alongside another barman, Mr Gerry McToal. The claimant had a history of poor timekeeping and was reprimanded in the past in relation to this. On the occasion of one such reprimand the claimant confided some personal problems in Mrs Smyth and such was Mrs Smyth's concern for him that she gave him a small gift of money to ease his circumstances. On another occasion, Mr Smyth made the claimant a small gift of money for the same reason.

8. On the night of 21 February 2009 the respondents were holding an 18^th birthday party for their daughter, Sophie, at the Pavilion Restaurant from 9.30 pm onwards. It was their intention that the party would start at a time when it was likely that public dining in the restaurant would have finished so as to cause minimal disruption to members.

9. The claimant was working on that night as was Mr McToal and it was the general expectation that everyone would be working later than usual by reason of the party.

10. The claimant had been aware for in or around two weeks that a family party was to be held on that night to celebrate Sophie's 18^th birthday. In making this finding the tribunal accept the evidence of Mrs Smyth and rely on the fact that this was a small family run business and on the balance of probabilities the party would have been discussed in the run up to the occasion by Mr and Mrs Smyth who were on friendly terms with their staff.

11. From in or around 8.30 on the evening of the 21st, the claimant was working stocking the bar, serving customers and preparing generally for the party. He raised concerns with Mr McToal regarding serving drinks to minors during the party and the necessity for ID. In circumstances where this was a family party and it was highly likely that there would be minors in attendance, the claimant's evidence is that he required reassurance that the bar would operate as normal with ID being sought from any one appearing to be a minor.

12. In response to his concerns, Mr McToal advised the claimant not to worry about it and get on with his work. The claimant alleged that Mr McToal replied in terms of "its better not to rock the boat". This is denied by Mr McToal and the tribunal finds him to be a credible witness. He is consistent, clear and unequivocal in his evidence whereas the tribunal find the claimant to be inconsistent and evasive in relation to material points of evidence.

13. The requirement for ID in respect of minors was never an issue in the past and despite the fact that 18^th birthday parties had been discontinued prior to Mr and Mrs Smyth taking over the business, there is no evidence before the tribunal that there was any suggestion that minors were to be served on this occasion. The claimant admitted under cross-examination that he could point to no evidence that Mr and Mrs Smyth required him to serve minors.

14. From in or around 8.30 pm on the evening of 21 February the claimant had been serving students whom he believed to be friends of Sophie Smyth and he did so implementing the policy regarding ID with no objections from management.

15. By reason of the foregoing, the tribunal find that although the claimant had concerns regarding serving alcohol to minors that there was no foundation for those concerns.

16. Mrs Smyth arrived at the Pavilion with her daughter in or around 9.00 pm. Mr Smyth who had been at the premises earlier on that day arrived with his wife and daughter.

17. It is Mr Smyth's evidence that, on arrival, he began to arrange tables and pictures in preparation for the party and spoke to diners in the restaurant. It is his evidence that he had no conversation whatsoever with the claimant that night. It is the claimant's evidence that at a time when the claimant had been making enquiries of Mr McToal and Mrs Smyth regarding the policy in relation to serving alcohol to drinkers appearing to be underage, Mr Smyth called him to the end of the bar and asked him if he "liked his job". It is his evidence that he felt following that question that his job was under threat if he did not agree to serve minors. The tribunal find on the balance of probabilities and against a background where we have found that the claimant's concerns in relation to a requirement to serve alcohol to minors was without foundation, that the claimant was not approached by Mr Smyth in this fashion.

18. The claimant approached Mrs Smyth on three separate occasions following her arrival regarding the issue of serving minors at a time when she was busy with the chef organising food for the party. The chef was due to leave at 10.00 pm. On all three occasions the claimant was told to go back to his work and to do the job he was paid to do. Following the second interruption the claimant returned to the bar and was heard by Mr McToal and Mrs Smyth to be banging glassware heavily on the counter. The tribunal does not accept the claimant's evidence that the noise heard by Mrs Smyth and Mr McToal was that of the cappuccino maker because the tribunal find the noise of a cappuccino maker to be quite distinct and accept the evidence of Mr McToal, as corroborated by Mrs Smyth who witnessed the incident and heard the noise respectively.

19. On his third approach to Mrs Smyth, the claimant was reprimanded in strong terms regarding the banging of glasses and told to go back to his work, do the job he was contracted to do or "he knew where the door was". It is the claimant's case that Mrs Smyth told him that he "could be replaced in the click of a finger or at the drop of a hat". The tribunal find that on the balance of probabilities these words were not spoken because the tribunal finds Mrs Smyth to be a straightforward witness and accepts her denial of the claimant's evidence on this point and her version of events.

20. Following this exchange the claimant walked to the end of the bar, grabbed his coat and left the premises without any further conversation with anybody or any explanation for his leaving. It is the claimant's case that he did so in response to the pressure he was feeling at the time but it is his evidence that it was not his intention to resign. The tribunal accepts this to be the case in reliance on the fact that he left without speaking to anybody and contacted the respondent the following morning to enquire about his rota.

21. Mrs Smyth did not see the claimant leave the premises and only discovered some time later that he had left. She assumed on hearing this that he had resigned.

22. Mr McToal heard the exchanges between the claimant and Mrs Smyth. He saw the claimant grab his coat and leave the premises. He thought that the claimant was "just in a bad mood".

23. Mr Smyth saw the claimant put on his coat and leave the premises. He did not approach the claimant or make any enquiries as to where he was going or why.

24. Neither Mr or Mrs Smyth contacted the claimant on that evening to ascertain why he had left, where he was or if he would be returning.

25. After midnight on that night a number of police officers called to the premises in the presence of a local councillor following alleged complaints of underage drinking and no evidence of any such activity was found. The tribunal accept the claimant's evidence that he made no complaint to the police and nobody made any calls at his request. The tribunal find him to be clear and unequivocal on this point. The claimant queries whether complaints had been made to the police as alleged by the respondent. However having found that the claimant was not associated with any such complaints the tribunal find that not a lot turns upon whether such complaints were made or not and make no finding on the point.

26. The claimant contacted the respondent by telephone the following morning to enquire about his hours for that day and was told by Mr Smyth that he "had no hours". This is not in contention.

27. However it is the respondent's case that the claimant had no reason to make contact to enquire as to his hours as working rotas had been fixed in advance. The claimant disagrees. The tribunal find that on the balance of probabilities that the claimant did enquire about his hours. In making this finding the tribunal rely on the answer given by Mr Smyth which we find to be consistent, this being a common enquiry. In any event the tribunal find as a material fact that contact was made by the claimant on the morning of the 22nd and that he did enquire about his hours.

28. During the course of this telephone conversation the respondent did not enquire about the reason for the claimant's departure from the premises on the previous night and did not put to him his belief that he [the claimant] had resigned.

29. Following the termination of his employment the claimant made reasonable attempts to find alternative employment. He responded to advertisements for bar work, called speculatively to hotels and bars and contacted his local job centre.

30. The claimant claimed and received Jobseekers Allowance in the sum of £121.00 fortnightly. When in employment he had been receiving working tax credit in the sum of £33.34 weekly which he lost on termination of his employment.

The law and its application to the facts

31. In deciding the issue as to whether the claimant resigned or was dismissed the tribunal have considered the law as outlined in Harvey on Industrial Relations and Employment Law and the case of Dr Burton v Glycosynth Ltd [UKEAT 0810/04].

It is clear from Harvey Division D1 and the case law that much depends on the words exchanged between the parties and to how they should be interpreted at the material time.

32. The claimant left after an altercation with Mrs Smyth in which she used the words "you know where the door is". It is her case that it was not her intention to dismiss and the claimant's case that he did not consider himself to have been dismissed at this time. The tribunal find that there is common ground between the parties on this point. No other words were spoken.

33. It now falls to the tribunal to decide whether the claimant resigned when in response to Mrs Smyth he grabbed his coat and walked out. In reliance on the law as recounted in Harvey on Industrial Relations and Employment Law, the tribunal are satisfied that the question must be considered objectively in the light of all the surrounding circumstances.

34. In considering the surrounding circumstances the tribunal have taken the following into account:-

(a) The tribunal does not accept Mr Smyth's evidence that he considered the claimant to have resigned in circumstances where he had not spoken to him since his arrival at the bar at 9.30, was not aware of the altercation between the claimant and Mrs Smyth, made no approach to the claimant as he was leaving to ascertain why he was leaving and made no enquiries of others.

(b) Mrs Smyth did not see the claimant leave and only discovered some time later that he had in fact left. On hearing that he had left, Mrs Smyth thought that he "had walked out" in resignation. The tribunal finds that in circumstances where the claimant walked out without explanation in response to, "you know where the door is" the words spoken are more consistent with a dismissal than a resignation.

(c) The tribunal find the fact that the claimant contacted the respondent the following morning to be inconsistent with the argument that he resigned the previous night. The tribunal are fortified in this view by the response of Mr Smyth who significantly did not put to the claimant his belief that he had resigned but rather informed him that he "had no hours".

35. In all the circumstances of this case and for reasons given above the tribunal find that the claimant did not resign and was dismissed.

36. The tribunal must now decide whether the claimant was unfairly dismissed in accordance with the provisions of the Employment Rights (Northern Ireland) Order 1996 ['the Order'].

37. Article 126 of the Order sets out the right of an employee not to be unfairly dismissed by his employer.

Article 127 adds:-

(1) for the purposes of this Part an employee is dismissed by his employer if; and

... only if –

(1)(a) the contract under which he is employed is terminated by the employer (whether with or without notice), …..

The tribunal find that the claimant was dismissed within the meaning of Article 127(1) of the Order without notice on the morning of 22 February 2009 by Mr Smyth when he was informed that " there are no hours".

38. The next question for the tribunal is whether that dismissal was fair. Article 130 of the Order goes on to state that:-

(1) In determining … whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

39. The respondent has shown no reason for the dismissal and so the tribunal find that the dismissal was unfair.

40. Furthermore under Article 130A of the Order an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures have not been followed due to the employer’s failure.

41. The statutory procedures are contained in the Employment (Northern Ireland) Order 2003 ['the 2003 Order'], and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. This legislation provides that an employer must follow a minimum procedure when disciplining or dismissing an employee. In a case of summary dismissal the modified procedure applies. The modified procedure requires that, having summarily dismissed the employee, the employer must write to the employee to set out the reasons for dismissal and must advise the employee of his right to appeal. If the right to appeal is exercised there must be a meeting and the outcome of that appeal must be communicated to the employee. No procedures whatsoever were followed in this case.

42. If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and comply with the provisions of Article 146(5) of the Order which provides:-

(5) Where—

(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),

(b) an award of compensation falls to be made under Article 146(4), and

the industrial tribunal shall, subject to Paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.

(1B) An industrial tribunal shall not be required by Paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.

The tribunal have considered the provisions of 1B and find no evidence of injustice to the respondent.

43. The tribunal must also increase any award which it makes to the employee by 10%, and if it considers it just and equitable in the circumstances, by a larger percentage up to a maximum of 50%. The percentage increase must be made unless there are exceptional circumstances which would make the increase of 10% minimum unjust or inequitable (Article 17 of the 2003 Order).

Compensation

44. The tribunal have calculated compensation in accordance with Articles 152 to 158A of the Order and Article 17 of the 2003 Order as follows:-

The basic award

Article 153 of the Order sets out the formula by which such basic award is to be calculated.

The basic award in this case according to this formula is:-

Three full years of employment [05/03/2005 - 22/02/2009] at £188.18 net per week [+ £188.18 in respect of failure to follow statutory procedures as outlined at paragraph 40 above] = £ 752.72

The compensatory award

Article 157(1) provides that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".

The claimant’s last pay date was 22 February 2009 and he remains unemployed at the date of hearing. The tribunal is satisfied that he made reasonable efforts to secure alternative employment with no success to date. In these circumstances the tribunal awards the claimant compensation at the rate of his weekly pay x the number of weeks from 22 February up to the date of the hearing =

34 weeks x [gross pay] £222.30 = £7,558.20

The claimant lost weekly working tax credit in the sum of £33.34 [x 34 weeks] =

£1,133.56

Compensation for loss of statutory rights = £ 250.00

The claimant claimed and received Jobseekers Allowance in the sum of £121.00 fortnightly.

The tribunal further awards the claimant compensation representing a further reasonable period of time during which the claimant is unlikely to obtain employment. Bearing in mind that Christmas is likely to present some job opportunities, the tribunal award the sum of £188.18 x 4 = £752.72 under this heading. In total the tribunal award the sum of £9,694.48 in respect of the compensatory award.

Total award: £10,447.20

45. Reductions

The Law

Article 156 (2) of the Employment Rights (Northern Ireland Order [the Order] provides that:-

"Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) 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."

The tribunal have considered this provision carefully and in circumstances where the claimant left his place of work without authority, explanation or apology the tribunal find that it is just and equitable in all the circumstances of the case to reduce the basic award by 50% leaving the amount of the award under this heading £376.36.

Article 157 (6) of the Order provides that:-

"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."

For reasons given above the tribunal find it just and equitable to reduce the compensatory award by 50% leaving the amount of the award under this heading £4,847.24.

Total award following reductions:£5,223.60

46. The tribunal have considered the effect of failure to follow the statutory procedures on the amount of the award in accordance with Article 17 (3)of the Employment (Northern Ireland ) Order 2003 which provides as follows:-

(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 non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

it shall, subject to Paragraph (4), increase 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, increase it by a further amount, but not so as to make a total increase of more than 50%.

(4) 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.

Article 17(3) applies here and the tribunal award the claimant a percentage uplift of 10% but award no further uplift having considered the matter on just and equitable grounds against a background where the claimant walked out without permission, explanation or apology. The tribunal have considered the provisions of Article 17(4) and find that it does not apply in this case due to the lack of any exceptional circumstances.

TOTAL AWARD £5,745.96

47. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 (the regulations) apply in this case. Rule 4(3) of these regulations require that the tribunal set out:-

(a) the monetary award;

(b) the amount of the prescribed element, if any;

(d) the amount if any by which the monetary award exceeds the prescribed element.

For the purposes of these proceedings the monetary award is £5745.96 [basic award plus compensatory award plus uplift].

The prescribed element is that amount of the monetary award which represents in this case compensation for loss of earnings up to the date of the hearing. The tribunal find that the amount of the prescribed element is £7,558.20.

The amount by which the monetary award exceeds the prescribed element in this case is Nil – £7,558.20.

Regulations 7 and 8 of the Regulations apply so as to stay the payment by the respondent of the prescribed element in order to enable the Department of Health, Social Services and Public Safety to initiate recoupment of jobseekers allowance paid to the claimant by serving a recoupment notice under regulation 8 on the respondent.

48. Rule 4(3) of the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 apply to this award as set out in the Statement annexed which forms pat of this decision.

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

Chairman:

Date and place of hearing: 20 October 2009, Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Crabbe v Smyth & Anor [2009] NIIT 5780_09IT (15 December 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/5780_09IT.html Cite as: [2009] NIIT 5780_09IT, [2009] NIIT 5780_9IT

Industrial Tribunals Northern Ireland Decisions