Chapman v McCulla (Ireland) Ltd  (Unfair Dismissal, Breach of Working Time Regulations)  (30 August 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	694/02

APPLICANT:	Ashley Chapman

RESPONDENT:	McCulla (Ireland) Ltd

DECISION

The unanimous decision of the tribunal is that the applicant’s complaints are dismissed.

Appearances:

APPLICANT:	Mr Paul Casey, Barrister-at-Law, instructed by McKnight Green for the applicant.

RESPONDENT:	Mr Henry Webb, Barrister-at-Law, instructed by IRPC for the respondent.

1.	The Tribunal is satisfied of the following facts -

	(a)	the applicant was employed by the respondent from March 1995 until February 2002 when he resigned.  Latterly he was employed by the respondent as Operations Manager.

	(b)	the applicant’s contract of employment with the respondent contained a term that his normal hours of work were unspecified with additional hours (to be worked) as required.

	(c)	in the week ending 21 December 2001, the applicant worked 76½ hours or thereabouts.  On 21 December 2001, after he had left his employment for the day, further orders were discovered and the applicant was summoned back.  He did not come back on 21 December.

	(d)	on his return to work after Christmas the applicant faced disciplinary action because of his failure to obey a lawful and reasonable order.  He was given a final written warning, and

	(e)	the applicant subsequently sought unsuccessfully to establish the number of hours which he was required to work per week and believing that it was only a matter of time until he received another reprimand and eventual dismissal resigned believing that -

		(a)	he had no alternative, and

		(b)	the hours were contrary to European law.

2.	The applicant’s complaint was that he was constructively and unfairly dismissed and that the respondents were in breach of the Working Time Regulations (NI) 1998.  In our unanimous opinion, the respondent treated the applicant very unreasonably indeed.  In the face of their acceptance that the applicant had worked in the region of 70 plus hours in the week up to 21 December and acceptance that the applicant could have been physically and mentally exhausted on 21 December, disciplinary action would certainly not have been the response of most employers.  However, we cannot accept that the respondent was in fundamental breach of the contract of employment when he was doing what the contract expressly permitted him to do - require the applicant to work additional hours.  Nor can we say that this requirement was intolerable, given the seasonal nature of the work and the time of the year.  Without a fundamental breach of contract, this Tribunal cannot examine the reasonableness of the respondent’s actions.

3.	We are not satisfied on the evidence produced that the respondent was in breach of the Working Time Regulations.  We have no evidence as to what hours were worked in the reference period.

____________________________________
J E MAGUIRE
President

Date and place of hearing:	30 August 2002, Belfast

Date decision recorded in register and issued to parties: