Makarovas v McArdle Marketing Limited [2010] NIIT 00581

THE INDUSTRIAL TRIBUNALS

CASE REF: 581/10

CLAIMANT: Vitalijus Makarovas

RESPONDENT: McArdle Marketing Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal awards the sum of £3664.78 by way of compensation.

This award is subject to recoupment in accordance with the attached schedule.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Panel Members: Mr E Grant

Mrs M Gregg

Appearances

The claimant was represented by Mr Conor Fagan, Barrister at Law, instructed by Richard Montieth, Solicitors.

The respondent was represented by Ms N Rountree Barrister at Law, instructed by Lennon, Toner and O’Neill, Solicitors.

The Issues

1. Was the claimant dismissed by the respondent or did he terminate his employment by resignation?

If the claimant was dismissed was he unfairly dismissed within the meaning

of the Employment Rights (Northern Ireland) Order 1996?

If the claimant was unfairly dismissed what compensation if any is due to

him?

Sources of Evidence

2. The tribunal considered the claim form, the response, documents handed in by the parties together with the sworn testimony of Mr Makarovas and of Mr John McArdle, Managing Director of the respondent company.

Findings of Relevant Fact

3. The respondent operates a small business involved in the wholesale packaging and delivery of vegetables and mushrooms throughout Ireland. It employs in or around eight employees. Mr John McArdle is the Managing Director of the respondent company. He has sole responsibility for dismissal of employees. Notwithstanding that responsibility Mr McArdle has no expertise in matters of personnel and relies on the human resources department for advice in all such matters. Ms Jean McKenna works in human resources and has expertise in that area. Mr McArdle’s second in command is Maura who is currently on maternity leave.

4. The claimant was employed by the respondent from the 23 November 2008 until the 23 December 2009. He was initially employed in the packaging house and from February 2009 as one of two delivery drivers. The other delivery driver works from 3.00 am until in or around 11.00 pm delivering to Belfast.

5. The claimant was not furnished with a written contract of employment. It is however common case that following his taking up the post of delivery driver his duties entailed a daily delivery run to the South of Ireland usually Dublin. It is also common case that the claimant frequently undertook a second delivery in the afternoon to Morgan Transport [“the Morgan run”] which unlike the South of Ireland delivery was not a daily run. He was paid overtime for this run. It is a matter of contention between the parties as to whether the Morgan run was required as a condition of the claimant’s employment or whether it was optional.

6. The claimant commenced work at 5.00 am each day. It is the claimant’s case that his working day ended on his return from the South of Ireland run. Sometimes he returned at or around 1.00 pm and sometimes at or around 3.00 pm depending on the deliveries that had to be made. However he frequently undertook the Morgan run on his return following a break unless there were reasons, such as collecting his daughter or a doctor’s appointment, as to why he could not do so. It was his evidence that if he were not willing to do the Morgan run, the “boss” would not be happy. He also gave evidence to the effect that he frequently agreed to do the Morgan run because he feared that if he did not so it would be “bye bye" to his job. In circumstances where the claimant was not available to do the run there were others within the company [including the managing director Mr McArdle] who could do so but they were not employed as drivers.

7. It is the respondent’s case that the claimant was required as a condition of his employment to do the Morgan run unless there were extenuating circumstances as to why he was not available and the respondent‘s example of extenuating circumstances accord with those given by the claimant e.g. collecting his daughter or a doctors appointment.

8. The tribunal finds, on the balance of probabilities, that the claimant was required under the terms of his employment to do the Morgan but was excused from doing so in circumstances where he was not available due to other commitments such as described above. The tribunal base this finding on the claimant’s evidence that he generally undertook the run unless there were reasons why he could not do so, that if he were not available to do the run his “boss” would not be happy and that he agreed to do it because he feared that if he did not agree it would be “bye bye” to his job. The tribunal find these facts to be consistent with the respondent’s case that the claimant was required to do the run. The tribunal were also persuaded by the fact that there were only two drivers employed by the respondent and the other driver finished work in or around 11.00 am in circumstances where the Morgan run was always in the afternoon. The claimant’s van was used for the purposes of the run and although others within the company undertook the run when the claimant was unavailable, they unlike the claimant, were not employed as drivers.

9. On the 23 December 2009, at a very busy time for the respondent, the claimant on his return from his South of Ireland run was asked by Ciara McArdle and by Maura to do the Morgan run. This run was to be done later in the afternoon and the claimant refused to do it indicating that he had plans for the afternoon. He did not give any indication of his plans which were in fact to collect his daughter and take her Christmas shopping. Following his refusal the claimant was then told by Mr McArdle to do the run and he again refused. He proceeded to leave his work place indicating that he would not be returning to do the run.

10. In or around 5.15 pm that afternoon the claimant received a call from Maura asking him once again to do the run. At that time he was in a shopping centre with his daughter and he once again refused. On his refusal the claimant was asked by Maura to return his keys. It was customary for the claimant to hold on to his keys at all times and if his van was to be used by

somebody within the company they used a spare set of keys retained for the purpose. It was the claimant’s belief following this request that he was being dismissed.

11 It is the respondent’s case that the claimant became “nasty” during the telephone conversation with Maura and that rather than being asked to return his keys he indicated that he would return them. It is the respondent’s case that Maura understood this to amount to a resignation by the claimant. The tribunal has not heard from Maura and was invited to rely on the evidence of John McArdle in this regard and in relation to the substance of the telephone conversation generally.

12. The tribunal have hearsay evidence from John McArdle and, in circumstances where the claimant has given direct compelling evidence regarding the substance of the call denying the allegation that he behaved in a nasty way or that he indicated an intention to return his keys, the tribunal accept the claimant’s evidence. The tribunal have regard to the fact that Maura is on maternity leave and not in a position to attend the hearing. Nonetheless the tribunal finds the claimant to be consistent and credible and accept his evidence in preference to the hearsay evidence of John McArdle on these points.

13. The claimant called to the office later that day to hand in his keys. He met John McArdle, handed him his keys and it is his case that Mr McArdle said to him “disappear from my eyes”. The claimant had no further personal contact with Mr McArdle. He left in time sheets after Christmas and received his P45 and outstanding pay in or around the 18 February 2009 following a letter from his solicitor.

14 Mr McArdle’s denies telling the claimant to “disappear from my eyes”. It is his case that he accepted the keys without comment on the basis that he had learned over time that it is best to say nothing in these circumstances.

15. The tribunal find, on the balance of probabilities, that Mr McArdle did not say “disappear from my eyes”. The tribunal find this to be an unusual expression and accept Mr McArdle’s evidence that it is an expression he has not heard prior to these proceedings. However given the fact that the claimant is a non national with a less than perfect command of the English language, his evidence is consistent on the point, the expression is used in the claim form and in pre litigation correspondence from his solicitor, it is the finding of the tribunal that words to this effect were, on the balance of probabilities, used.

16. During the course of his employment the claimant had received a written warning regarding an incident when he failed to turn up for work. It is the respondent’s evidence that following the incident on the 23 December the likelihood is that the claimant would have received a further written warning.

17. The claimant applied for and received Jobseekers Allowance from in or around February 2009. He made reasonable efforts to secure alternative employment and was re employed with effect from May 2009.

Conclusions

18. The first question for this tribunal is whether the claimant resigned or was dismissed. The tribunal does not have the benefit of evidence from Maura who it is alleged dismissed the claimant during a telephone conversation on the 23 December 2009.

19. The tribunal has taken into account the fact that Mr McArdle was the only one within the company with power to dismiss but have no evidence to indicate or even to suggest that the claimant was aware of this. Maura was however a senior person within the company and clearly had authority to issue the claimant with instructions [paragraphs 9 and 10 above]. It is common case that the claimant returned his keys following his telephone conversation with Maura.

20. The tribunal have considered Harvey on Industrial Relations and Employment Law in addressing the question did the claimant resign or was he dismissed. The Tribunal also considered the case of Tanner v D T Kean Ltd [1978] IRLR 110.

The tribunal find the test proposed by Sir John Donaldson in the case of Martin v Glynwed Distribution Ltd [1983] ICR 511, at 519 of assistance:

'Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, “Who really ended the contract of employment?”

21. The tribunal is faced with a difficult task in applying this test. It is alleged by the claimant that he was asked to return his keys. It is alleged by the respondent that he volunteered them in an act of resignation. The act of returning the keys is therefore consistent with both explanations.

22. The tribunal must in deciding this question therefore consider the matter of credibility. The tribunal finds that the claimant presents as a credible witness. He has been consistent in his evidence and the tribunal finds him to be straightforward. For the respondent the tribunal only has hearsay evidence of the telephone conversation between Maura and the claimant and in all these circumstances the tribunal accepts the claimant’s version of events.

23. It is the claimant’s case that Mr McArdle asked the claimant to “disappear from my eyes” and for reasons given at paragraph 15 above the tribunal accept, on the balance of probabilities, that words to this effect were used. The tribunal finds it difficult to accept Mr McArdle’s evidence that he, as the managing Director of the company, would have accepted the keys without making any comment whatsoever and particularly so in circumstances where the claimant had directly refused an instruction from him earlier in the day at the busiest time of the year.

24. The tribunal finds that the claimant believed following his conversation with Maura that her request for him to return his keys amounted to dismissal. He returned his keys. He handed them to Mr McArdle who, on the balance of probabilities, did comment along the lines of “disappear from my eyes” and these words are consistent with the claimant’s case that he was dismissed.

25. For reasons given above the tribunal find that the claimant was dismissed with effect from the 23 December 2009.

26. Unfair Dismissal - The Law

The tribunal considered the relevant statutory provisions

Statutory Provisions:-

The statutory provisions are contained in the Employment Rights (Northern Ireland) Order 1996 [“the Order”] where Article 126 of the Order 1996 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), …..

27. The tribunal find that the contract under which the claimant was employed

by the respondent was terminated by the respondent for reasons set out

above.

Article 130 of that 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.

28. Having found that the claimant was dismissed in circumstances where the respondent denies dismissal the tribunal finds that the respondent has failed to show either the reason for dismissal or that dismissal was for a fair reason within the meaning of Article 130 of the Order. Accordingly the tribunal finds that the claimant was unfairly dismissed.

29. The tribunal must also consider the Statutory Dismissal and Disciplinary Procedures [Venniri v Autodex EAT/0436/07]. 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.

30. 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.

31. If the employer fails to follow the statutory procedure, the tribunal must in a case such as this make a finding of unfair dismissal and if an award of compensation is to be made comply with the provisions of Article 17 of the 2003 Order which provides for uplift in the amount of compensation awarded.

32. Article 17(3) 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 per cent 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

per cent.

(4) The duty under paragraph (2) or (3) to make a [reduction or] increase of 10 per cent 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

33. It appears to this tribunal that the statutory procedures apply in this case. They were not followed and the tribunal has no evidence to justify a finding that there are applicable exceptional circumstances under 17(4).

Compensation

34. The claimant was earning £242.15 weekly gross pay and £204.18 weekly net pay. He was employed by the respondent for 1 full year and was age 31 at the date of dismissal. An agreed schedule of loss has been produced to the tribunal.

35. Article 152 of the Employment Rights (Northern Ireland) Order 1996 [the Order] provides that compensation awarded by a tribunal should consist of a basic award and a compensatory award.

The basic award

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

The basic award in this case according to this formula is: - 1 x 242.15 =

£242.15.

36. The total basic award amounts to £242.15

37. Article 156(2) of 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.

38. The tribunal has carefully considered this provision and finds that the claimant refused a lawful instruction of the respondent at the busiest time of year. The tribunal finds also that the claimant gave the respondent no indication of what his plans for the afternoon of the 23 December 2009 were in circumstances where in the past he had been excused from the Morgan run when he had commitments regarding his daughter. In all these circumstances the tribunal considers it just and equitable to reduce the claimant’s basic award by 20% [£48.43]

Total Basic Award following deductions = £ 242.15-£48.43 = £193.72

39. 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 complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

40. The agreed schedule of loss records the amount of £3471.06 as the amount due in respect of the compensatory award and the tribunal accepts this to amount to a just and equitable award in all the circumstances of this case.

41. Article 17 of the 2003 Order [paragraphs 31 and 32 refer] must be read in conjunction with Article 158A of the 1996 Order. Article 158A of the 1996 Order provides that any Article 17 uplift applies only in respect of the compensatory element of an unfair dismissal award of compensation.

42. The effect of Article 17(3) of the 2003 Order is that, as a general rule, if the circumstances therein apply, a tribunal is under an obligation to increase any compensatory award in unfair dismissal proceedings by 10 per cent and may, if it considers it to be 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 per cent.

43. In the present context, the relevant circumstances are that the statutory procedures were ignored by the respondent and it is the case that the Managing director with sole responsibility for dismissals had no expertise in personnel matters. The tribunal find that on the balance of probabilities Mr McArdle had no knowledge of the statutory procedures or his obligations thereunder. The tribunal finds that in all these circumstances, failure to follow the statutory procedures was wholly attributable to failure by the employer.

44. That general rule, as set out in Article 17(3), is subject to an exception. The exception is provided for at paragraph (4) of Article 17. According to Article 17(4), the duty under paragraph (3) of that Article to make an increase of at least 10 per cent does not apply if there are exceptional circumstances which would make an increase of that percentage unjust or inequitable. The tribunal have no evidence upon which to base a finding that any exceptional circumstances apply in this case.

45. This tribunal has a broad discretion when fixing the level of increase of any award. It is well established that, the more serious the breach, the higher should be the percentage uplift (within the overall 10 – 50 per cent band). In all the circumstances of this case as described above the tribunal award an uplift of 25% [£867.76] increasing the amount of the compensatory award to £4338.82.

46. 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 at paragraph 38 above the tribunal considers it just and equitable to reduce the amount of the compensatory award by 20 per cent [£867.76].

47. Final compensatory award = £4338.82- £867.76= £3471.06

48. Total Award = £3471.06 + £193.72 =£ 3664.78

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

Chairman:

Date and place of hearing: 28 July 2010 Belfast.

Date decision recorded in register and issued to parties:

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	3,664.78
(b) Prescribed element	3,471.06
(c) Period to which (b) relates:	23/12/09 -29/04/2010
(d) Excess of (a) over (b)	193.72

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 Department of Health and Social Services 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 Department of Health and Social Services 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 >> Makarovas v McArdle Marketing Limited [2010] NIIT 00581_10IT (03 September 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/00581_10IT.html Cite as: [2010] NIIT 00581_10IT, [2010] NIIT 581_10IT

Industrial Tribunals Northern Ireland Decisions

ANNEX TO THE DECISION OF THE TRIBUNAL