Shannon v Gerry McManus Plant Hire Ltd(I... [2009] NIIT 797

THE INDUSTRIAL TRIBUNALS

CASE REF: 797/08

CLAIMANT: Hugh Gerard Shannon

RESPONDENTS: 1. Gerry McManus Plant Hire Ltd (In Liquidation)

2. Department for Employment and Learning

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and his contract of employment has been breached by the first-named respondent in failing to pay him overtime and sick pay. The first-named respondent is ordered to pay the claimant the sum of £19,567.99 compensation, made up of a basic award of £2,178, compensatory award of £16,570.95, unpaid overtime of £419.04, and £400 unpaid sick pay.

Constitution of Tribunal:

Chairman: Ms Bell

Member: Mr Atcheson

Appearances:

The claimant was represented by Ms Rachel Best, Barrister-at-Law, instructed by Messrs John Quinn & Co, Solicitors.

The first-named respondent did not appear and was not represented.

The second-named respondent was represented by Ms Baird of the Department for Employment and Learning.

1. The claimant claimed that he had been unfairly dismissed by the first-named respondent, by way of constructive dismissal, that he had suffered breaches of his contract of employment and unlawful deductions from wages in respect of overtime payments and sick pay due to him.

2. The first-named respondent in its response denied the claimant’s claims and that the claimant had raised any prior grievance or valid grievance under the statutory grievance procedures.

3. The second-named respondent confirmed that the first-named respondent went into voluntary liquidation on 15 December 2008, that it would only be able to pay a basic award to the claimant if found to be payable by the first-named respondent, and agreed with the basic award calculated by the claimant in his Schedule of Loss.

4. The parties consented at hearing in accordance with Regulation 5(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 for the proceedings to be heard and determined by a tribunal composed of the Chairman and one Panel Member.

ISSUES

5. The issues to be determined by the tribunal were:-

(i) Whether the contents of the claimant’s grievance letter were sufficient to satisfy the requirement to send a grievance in writing to the respondent and wait 28 days before presenting a claim to the tribunal?

(ii) whether the claimant’s unfair dismissal complaint was presented in time?

If satisfied as to (i) and (ii), then,

(iii) whether the claimant was dismissed? If so,

(iv) whether the respondent has shown

- a potentially fair reason for the dismissal,

- that the dismissal was procedurally fair,

- that the dismissal was within a range of reasonable responses.

(v) Whether the claimant has suffered a breach of contract or unlawful deduction from his wages and is entitled to unpaid overtime and sick pay?

SOURCES OF EVIDENCE

6. The tribunal considered the claim, first and second-named respondents’ responses, documentation received from the claimant and the claimant’s oral evidence.

FINDINGS OF FACTS

7. The claimant was employed by the respondent as Contracts Co-ordinator and Site Manager between 18 September 2001 and 29 January 2008.

8. The claimant’s terms of employment were set out in a written contract of employment prepared by the claimant and signed both by him and Mr Gerry McManus Managing Director of the respondent company, on behalf of the respondent, on 17 September 2001 before the claimant commenced his employment.

9. The claimant’s responsibilities were outlined in Clause 6 of his contract of employment as follows:-

“GENERAL ACTIVITIES OF THE POST

s Seek out suitable projects at tender stage and submit tenders.

s (tenders may be prepared by others).

s Liaise with clients at pre contract stage to draw up health & safety plans, programmes of work, costings, etc.

s (once health & safety plans have been prepared on site safety shall be the responsibility of others unless the post holder has direct responsibility for on site operations.)

s Allocate required resources to projects to ensure programme requirements are met.

s Setting out work on site and ensuring that work proceeds to accurate line, level and specification.

s Monitoring of work in progress to ensure compliance with project requirements.

s Measurement of work in progress, preparation and checking of interim and final accounts.

s Monitor staff levels and implement a training plan to ensure that all company employees are suitably trained for their duties and that the company can meet its legal requirements with regard to training.

s Liaisons with other members of the project team to ensure the above goals are attained.”

10. The claimant’s contract states:

- At Clause 10 for the claimant to receive £525 sterling gross per week, his pay later increased in early 2006 to £690.63 gross per week being £540 net per week.

- At Clause 11 that overtime will be “paid at ¹/₄₀ weekly rate per hour”.

- At Clause 14 for sick pay to be paid for a maximum of “5 days per year on full pay”.

11. After commencing his employment the claimant, in addition to his roles as Contract’s Co-ordinator and Site Manager, was delegated the role also of Health & Safety Officer.

12. The respondent was a Civil Engineering Contractor and Plant Hirer.

13. The claimant had numerous informal meetings each week with the respondent’s Managing Director, Mr Gerry McManus during which they discussed job progress. As the respondent took on more work from early 2006 the claimant began regularly to raise concerns with Mr McManus at their meetings that he was unable to visit all of their jobs each week and that they needed additional staff by way of a Foreman or Manager on each job to co-ordinate work and to report to the claimant on a weekly basis. Jobs at that time were being run by up to 10 individuals known as “gangers” on each site and with one ganger representing each different trade doing work. The claimant had to on his visits walk around the site with a ganger acting as a spokesman for the other tradesmen in a crew, who would be unfamiliar with the particulars of the job contract, trying to establish what work had been done and in particular what variations and additions there had been, to allow the claimant to properly value the cost of the job. The claimant often encountered difficulties caused by a crew moving on before his next site visit before he had an opportunity to speak with them. The claimant also regularly raised with the respondent the need for a trained Health & Safety Supervisor on each site to ensure health & safety requirements were enforced. The claimant visited sites as Health & Safety Officer, carried out risk assessments and prepared health & safety plans, but in the absence of a Health & Safety Supervisor on site on a daily basis the claimant frequently found when he visited a site unexpectedly that procedures were being disregarded including men working in trenches without support, working at height without proper provision, and using plant that they were not properly trained or certified to use as the men felt the required health & safety procedures were slowing down their progress on a job.

14. The claimant was aware of a death having taken place on a site before he came to work for the respondent due to poor working procedure and was concerned that if an accident occurred whilst he was Health & Safety Officer that he might personally be held responsible and even prosecuted. As the jobs undertaken by the respondent became more complex the claimant found Health & Safety procedures and training became a more time consuming part of his job and costly issue for implementation by the respondent and felt increasingly exposed to being held responsible should an accident or breach of procedure occur. Before Christmas 2007 the claimant felt matters briefly improved with the respondent taking on a trainee Site Manager and engaging a freelance Project Manager for a few hours each week. However at Christmas 2007 both the trainee Site Manager and freelance Project Manager left and the claimant found himself without much needed support when commencing work on the largest contract the respondent had secured.

15. After the claimant’s basic wage was increased in early 2006 the respondent failed to pay the claimant his correct overtime rate, the claimant queried the non payment of his correct overtime rate with the respondent regularly at their meetings.

16. Site rules on the respondent’s new job in January 2008 required a suitable Site Manager to be present as long as work was taking place and so the claimant worked approximately four hours overtime for 18 days but was paid £11.45 per hour rather than his correct contractual rate of £17.27 per hour. In January 2008 the claimant was absent due to sickness for four days but did not receive net sick pay of £400 due to him under his contract.

17. Towards the end of his employment the claimant began to lose confidence in being able to carry out his job effectively due to employees under the claimant’s direct control being authorised by the Managing Director to undertake different jobs than those which they had been instructed by the claimant to carry out on site, without consultation with the claimant, causing potential breaches of health & safety, disruption and delay.

18. The claimant became further frustrated when despite having provided the respondent’s Plant Manager with a schedule of plant required as critical to certain jobs at particular times, the Plant Manager offered the plant for public hire, resulting in serious problems for the contracting end of the business and delays in execution of work, and having prepared spreadsheets of the employees qualified to operate particular plant, these were ignored. Towards the end of his employment the claimant was on a number of occasions not properly consulted and involved in the preparation of tenders which the claimant felt led to insufficient provision being made to deal with health & safety issues and costs, but found himself being subsequently reprimanded by the Managing Director and the Company’s Financial Controller when financial losses were made as a result.

19. At the end of January 2008 due to a breach of health & safety procedures overhead electricity lines were knocked down, fortunately no one was injured. To penalise the respondent, its client imposed a three day stand down from works. On 24^th January 2008 the claimant was criticised by the Managing Director who blamed him for the incident and stand down penalty despite responsibility having been delegated by the claimant to the Plant Manager on site whom he had objected to but was still employed by the Managing Director. The claimant felt that the Managing Director’s criticism which took place in a small compound area in the presence of clients and staff was not justified and most unfair.

20. After the overhead cables came down the respondent was not allowed to re-commence works until a detailed plan for a safe system of work was drawn up by the claimant and health and safety consultants, approved by its client and the Health and Safety Authority for the region. Following this the claimant had a meeting with all site staff and the Managing Director present, he showed them power line safety videos, discussed with them associated dangers, the incident that had occurred, why it had happened, and finally went through with them the approved safe system of work plan. Following the meeting the respondent’s client authorised the respondent’s return to the site in accordance with its safe system plan and the respondent’s staff were given a final warning to follow the plan. Approximately one hour later, the claimant went out onto the site and saw machines not approved for work on the site being used, he was aware the client’s staff were just behind him on the site and concerned that if they saw this breach the respondent’s contract could be terminated. The claimant told the Foreman that use of the machines was in breach of the approved safe system plan but the Foreman replied that they could get the work done a lot faster that way and that it had been approved by the Managing Director, at which the claimant tried to phone the Managing Director without success.

21. On 29 January 2008 the claimant was in the site office going through paperwork with the respondent’s client’s Safety Officer. When the Safety Officer left, the Managing Director, in the presence of the respondent’s Site Engineer criticised the claimant for not responding to an e-mail from their Quantity Surveyor relating to two jobs completed in late 2007 despite the claimant not having any e-mail access available to him on the site. When the claimant tried to explain the respondent told the claimant that his attitude to his job was unsuitable, and again, that it was his fault that work on that job had been stopped for three days. The claimant responded to the Managing Director saying that he had given his safe system document to the Foreman that the Managing Director had appointed, the Foreman had failed to implement it and that he did not feel that he had been responsible. At that the claimant believes the Managing Director came at him, as if to hit him, and so the claimant quickly moved away. The claimant reminded the Managing Director of the problems that they had been having with staff and health & safety, and tried to draw support from the Site Engineer. The Managing Director however continued to swear at the claimant, and so the claimant made his way around the site office towards the door and left as he believed the Managing Director might otherwise hit him. As the claimant walked out the door the Managing Director said to him that he was no good if he didn’t do what he was told and that he should go, to which the claimant replied that maybe he was right.

22. The claimant did not return to work as he felt that the mutual trust and confidence which had existed previously between him and the respondent had been totally destroyed by the course of the respondent’s conduct since 2006 culminating with the incident on 29 January 2008 when the claimant felt physically threatened and that he had no option but to leave his employment.

23. The claimant believed that the respondent had not upheld its contractual obligations to him in that he had been asked to do a job which he was endeavouring to do to the best of his ability but that the support and trust needed from the respondent was not forthcoming to allow him to carry out his job. He felt that as a manager he had a duty to other staff and individuals who came on site but in the circumstances did not consider that he could guarantee their safety and was greatly concerned that it was only a matter of time before someone was seriously injured or killed.

24. After termination of his employment on 29 January 2008 the claimant submitted a claim for benefit, he received job seeker’s allowance from 19 February 2008 until 15 June 2008. In or around the beginning of April 2008 the claimant telephoned the respondent twice to try to resolve matters, he wrote to the respondent on 22 April 2008 stating “I am writing to tell you that I wish to raise a grievance. This action is being considered with regard to the following circumstances: my constructive dismissal on 29 January 2008. This was wrongful and I wish to receive six week’s pay due to me in lieu of notice.” He also sought the return of personal property and requested a reply within 28 days. The respondent replied by letter dated 19 May 2008 enclosing a P45 and items of the claimant’s property and stated “I trust that this brings the matter to a conclusion.”

25. The claimant submitted a claim to the Industrial Tribunals, received on 30 May 2008. On 16 June 2008 the claimant commenced a new job with average take home pay of £380.62 per week.

26. The respondent went into voluntary liquidation on 15 December 2008.

LEGISLATION

27. Under Article 19(2) and (3) of The Employment (Northern Ireland) Order 2003 to be entitled to present a claim to a tribunal an employee is required to send a grievance letter in writing to the employer and wait 28 days before presenting a claim.

28. Under Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 the normal time limit for presenting a complaint under an applicable jurisdiction (including unfair dismissal, breach of employment contract and unauthorised deduction complaints), is extended for a period of three months where the standard grievance procedure is the applicable procedure and the employee has presented a complaint after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 of Schedule 1 of the 2003 Order to set out his grievance in writing and send a statement or a copy of it to the employer within the normal time limit.

29. Under Article 126 of The Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

30. Circumstances in which an employee is dismissed by his employer include at Article 127(c) of the 1996 Order if the employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

31. Under Article 130 of the 1996 Order, in determining whether the dismissal is fair or unfair it is for the employer to show the reason for dismissal and that it is either a reason set out at 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.

32. The industrial tribunal has jurisdiction under The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 to deal with an employee’s claim for damages for breach of his contract of employment or for a sum due under that contract.

33. Under Article 17(3) of the 2003 Order, where Statutory Dispute Resolution procedures apply and are not completed wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, save where there are exceptional circumstances as set out at Article 17(4) it shall increase any award which it makes to the employee by 10% and may if it considers it just and equitable in all the circumstances increase it up to a maximum of 50%.

APPLICATION OF LAW TO FACTS FOUND

34. On hearing the claimant’s oral evidence which the tribunal finds credible and prefers to the respondent’s evidence in its response, the tribunal is satisfied as follows:-

(i) In view of the background knowledge of the respondent, the content of the claimant’s grievance letter is a valid grievance and satisfactorily sets out the claimant’s complaint about action taken by the respondent.

(ii) The claimant has satisfied the requirement to send a written grievance to the respondent within the original three month time limit from his effective date of termination, to wait 28 days before submitting his claim to the tribunal and avails of the statutory three month extension to the normal time limit before presenting his complaint, which has accordingly been presented in time.

(iii) The respondent has repudiated the claimant’s contract of employment through its course of conduct towards him and series of incidents since 2006, entitling the claimant to terminate his employment without notice. Breaches of the claimant’s contract of employment by the respondent includes non-payment of his correct wages for overtime worked and sick pay due to him despite his request to the respondent to rectify these, the undermining of the claimant’s authority in the carrying out of his role in particular authorising workers to do work other than that which they were instructed to carry out by the claimant or in a way contrary to the way instructed by the claimant in breach of health & safety requirements, not providing the claimant adequate resources and support to carry out his duties and lastly culminating in the Managing Director’s aggressive and threatening behaviour towards the claimant on 29 January 2009 resulting in the destruction of all remaining trust and confidence in the claimant’s relationship with the respondent. The tribunal is satisfied that the respondent’s conduct made it impossible for the claimant to go on working for the respondent.

(iv) The respondent has failed to show a potentially fair reason for the claimant’s dismissal and the tribunal accordingly finds that the claimant was unfairly dismissed.

(v) The respondent clearly breached the claimant’s contract of employment in failing to pay him correct wages for overtime worked in January 2008 of £419.04 and four days net sick pay for January 2008 of £400.

COMPENSATION

35. Unfair Dismissal

The standard statutory grievance procedure applies, but was not completed wholly or mainly due to the failure by the respondent to invite the claimant to a meeting to discuss his grievance and the tribunal considers it appropriate in the circumstances to increase the unfair dismissal award by 10%. The tribunal is not aware of particular facts and circumstances surrounding the failure by the respondent to complete the statutory procedure which could properly be regarded as making it just and equitable that the respondent should be penalised further and by reference to which the tribunal must exercise its discretion in deciding whether to increase the uplift to a figure between 10% and the maximum 50%.

Basic Award

£330.00 1 x 6 = £1980.00

(statutory maximum weeks pay (years continuous

applicable at effective date employment)

of termination)

10% increase = £198.00

£2,178.00

Compensatory Award

Had the claimant remained in the respondent’s employment his contract would have terminated on the respondent’s liquidation on 15 December 2008.

Loss of Earnings

29 January 2008 – 15 June 2008

Approximately 20 weeks x £540.00 per week = £10,800.00

16 June 2008 – 15 December 2008

(£540.00 - £380.62) = £159.38 per week x 25 weeks = £3,984.50

= £14,784.50

10%increase + £1,478.45

= £16,262.95

Loss of Statutory Rights

£280.00

10% increase + £28.00

= £308.00

Breach of Contract

Unpaid overtime

(£17.27- £11.45) = £5.82 x 72 hours = £419.04

Unpaid Sick Pay

£100 net per day x 4 days = £400.00

35. This award is subject to the Employment Protection (Recoupment of Job Seeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996. The attention of the parties is drawn to the Notice below which forms part of this decision.

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

Chairman:

Date and place of hearing: 29 July 2009, Belfast.

Date decision recorded in register and issued to parties:

Case Ref No: 00797/08

CLAIMANT: Hugh Gerard Shannon

RESPONDENTS: 1. Gerry McManus Plant Hire Ltd (In Liquidation)

2. Department for Employment and Learning

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£
(a) Monetary award	£19,567.99
(b) Prescribed element	£14,784.50
(c) Period to which (b) relates:	29 January 2008 – 15 June 2008
(d) Excess of (a) over (b)	£4,787.49

The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Social Security Agency has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3. The claimant will receive a copy of the recoupment notice and should inform the Social Security Agency in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Shannon v Gerry McManus Plant Hire Ltd(I... [2009] NIIT 797_08IT (29 September 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/797_08IT.html Cite as: [2009] NIIT 797_08IT, [2009] NIIT 797_8IT

Industrial Tribunals Northern Ireland Decisions

CLAIMANT: Hugh Gerard Shannon

ANNEX TO THE DECISION OF THE TRIBUNAL