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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gillen v Kelly (Unfair Dismissal) [2002] NIIT 1683_01 (25 March 2002) URL: http://www.bailii.org/nie/cases/NIIT/2002/30.html Cite as: [2002] NIIT 1683_01, [2002] NIIT 1683_1

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Gillen v Kelly (Unfair Dismissal) [2002] NIIT 1683_01 (25 March 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1683/01

APPLICANT: Eunan Gillen

RESPONDENT: Michael Kelly

DECISION

This is a reserved decision in summary form.

The unanimous decision of the industrial tribunal is that the applicant was unfairly dismissed. The tribunal orders the respondent to pay to the applicant the sum of £413.25, subject to the operation of the Recoupment Regulations.

Appearances:

The applicant was represented by his spouse, Mrs P Gillen.

The respondent was represented Mr N Brown, Solicitor, of Martin, King French & Ingram, Solicitors.

THE ISSUE

The applicant's claim was that he had been unfairly dismissed by his employer, the respondent. The respondent conceded that the applicant had been dismissed but contended that there had been proper and valid grounds for the dismissal and that the dismissal was fair. The tribunal accordingly had to decide whether the dismissal was fair in all respects.

THE TRIBUNAL'S FINDINGS

In consequence of the written and oral evidence adduced before it the tribunal found the following facts: -

1. The respondent was engaged in his own right in the business of construction contracts, these contracts being carried out, in the main, in the North-West of the Province. The applicant was first employed by the respondent in or about August of 1999 and was continuously employed from then until, as the respondent conceded, the applicant was summarily dismissed, on the 22^nd December 2000. The respondent did not appear to have a standard written statement of terms and conditions of employment for employees incorporating a disciplinary code and the applicant did not receive any such during the course of his employment by the respondent. At the material time, the date of the applicant's dismissal, the respondent's business employed or had engaged a workforce of approximately fifty persons, including sub-contractors, these being made up of about 35-40 employees and approximately 10 sub-contractors.
2. The applicant and the respondent and the other witnesses called to give evidence gave evidence to the tribunal in connection with the events that took place on the 22^nd December 2000, the date the applicant was dismissed. Part of this evidence, not being in conflict as between the parties, was accepted by the tribunal without difficulty. This evidence related to the respondent's workforce finishing work early that day, the 22^nd December 2000, on account of the impending Christmas vacation; attending a local hotel, the Radisson Hotel, for a meal; and then going on to another local hotel, the Gorteen House Hotel, for a Christmas drink where a party of about twenty of the respondent's workers assembled around two tables in part of the Hotel to which the general public had access. The applicant had earlier consumed a pint of beer in the Radisson Hotel and taken another pint of beer in the Gorteen House Hotel shortly after his arrival there. The applicant's work foreman, Barney McKinney, then bought the applicant twelve Bacardi drinks and also drinks called "Aftershocks" and set these before him. This was, as the applicant put it, "as a Christmas box". There was no doubt that the applicant, by his own admission, consumed a considerable amount of alcohol that afternoon, although he denied to the tribunal being drunk at any stage.
3. The tribunal notes with some degree of concern that there was a considerable conflict between the evidence of the applicant on the one hand and that of the respondent and the respondent's witness, the respondent's brother and employee Trevor Kelly, on the other hand, as to the precise events and as to the timing of those events which preceded the dismissal. There was even a conflict of evidence on the facts as to whether the applicant was initially purportedly dismissed by the respondent or by Trevor Kelly. The tribunal, on balance, generally prefers and finds more credible the respondent's evidence. On the facts, it finds that some time after the respondent's workers had assembled in the Gorteen House Hotel there began an argument between the applicant and a fellow employee, Patrick Purcell. Tempers flared but no punches were thrown at that point as other persons got between the two men and calmed things down. The respondent then had some conversation with the applicant which may have constituted an informal warning to the effect that if there was any fighting the two men would be dismissed, or "paid off", as he seems to have put it.
4. Some time later a fight between the two men broke out. This was at this same location inside the Hotel as where the applicant had been sitting. It was in public view. The two men came to blows. As a result of this fight, an adjacent table was upset, spilling drinks. That table was occupied by a party of persons who could clearly have identified the persons fighting as employees of the respondent. These persons were employees of Charlie McAuley Construction, a contracting firm on whose behalf the respondent did some work. The respondent felt obliged to apologise to the persons concerned and to replace the drinks spilled. The Hotel's doorman escorted the applicant and Mr Purcell from the Hotel premises immediately. Again, the tribunal accepts the respondent's evidence that the respondent spoke to the two men again and warned them that they would be dismissed if they did not stop fighting.
5. Regrettably, the fighting then seems to have continued in the carpark of the Hotel, adjacent to the main entrance. Thankfully, no serious injuries were sustained by either party. A Mr McLaughlin, the owner of the Hotel, then informed the respondent that the two men were still fighting outside in the carpark. The respondent then went outside and spoke to the two men, including the applicant, in the carpark. He told them that they were both dismissed on account of the fighting. The tribunal accepts that this was a summary dismissal and that it was the respondent who dismissed the applicant.
6. About thirty minutes afterwards a message was relayed to Trevor Kelly that the two men were still in the carpark and wished to speak with him. Trevor Kelly went out and spoke to them, and he explained that in his opinion the best thing to do was to go home, settle down and they could discuss things later. Trevor Kelly denied dismissing the applicant, contrary to the applicant's contention to that effect. He stated that he did not have the authority to do so. The tribunal accepted this. Patrick Purcell then left the Hotel precincts.
7. About one hour later the Hotel doorman came in and told Trevor Kelly that the applicant was still outside in the car park. Trevor Kelly went out and spoke to the applicant and encouraged him to leave for home. Trevor Kelly then arranged a taxi and travelled home with the applicant. The tribunal accepts that Trevor Kelly spoke with both of the men, encouraged them to go home, and stated that they could speak later. There was also a series of telephone conversations in the course of the next few days between Mrs Gillen, the applicant's spouse, and Trevor Kelly in regard to the possibility of the applicant getting his job back. However, the tribunal could not accept the applicant's contention, on the facts, that the dismissal was some type of provisional dismissal pending re-instatement if the applicant were to conduct himself in a certain way, or some manner of a sham dismissal designed to teach him a lesson, prior to re-instatement in his post. On the evidence, the respondent clearly, unambiguously and summarily dismissed the applicant, together with Patrick Purcell, on the 22^nd December 2000. The tribunal noted that, in that regard, the applicant contended that the other dismissed party, Patrick Purcell, had been re-instated by the respondent shortly afterwards. The tribunal, on the balance of the evidence, could not accept this. It believes that Patrick Purcell was in fact engaged by a sub-contractor to the respondent, Mr McElhatton, and not by the respondent.

THE TRIBUNAL'S DECISION

8. An employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 unless the employer can show that the dismissal is fair for one of the reasons set out in Article 130 of that Order. One such reason relates to the conduct of the employee. Here, the respondent purported to dismiss the applicant on grounds of gross misconduct. The task of the tribunal was to establish, in such a case of alleged gross misconduct, which would on the face of it be a potentially fair reason for dismissal, whether the respondent had acted reasonably in all the circumstances in treating the reason as sufficient. The statutory test is contained in Article 130(4) of the Employment Rights (Northern Ireland) Order 1996. The guidance contained in that Article is as follows: -

"…the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

9. In the application of this statutory guidance the tribunal is mindful of the guidance stemming from the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 which includes (inter alia) the following:-

(1) The tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the tribunal) consider the dismissal fair.

(2) In many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another.

(3) The function of the tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.

10. The tribunal notes that the Court of Appeal in England in the cases of Post Office v Foley/HSBC Bank v Madden [2000] IRLR 827 has restated and reaffirmed the principles deriving from Iceland. In this matter, applying the foregoing statutory test and the guidance deriving from the authorities, the tribunal had considerable difficulty in finding that the respondent acted reasonably in all the circumstances in treating the reason, gross misconduct arising from the particular conduct of the applicant, as sufficient reason to dismiss the applicant. There was no evidence that the respondent had properly addressed his mind to the issue of the proportionality of the sanction of dismissal as a response nor that he had considered other possible responses. Indeed the tribunal had difficulty in determining whether or not the respondent's sanction might have been either proportionate or fair or alternatively disproportionate and unfair, given the manifest lack of proper and fair procedure apparent in the respondent's conduct of the matter.
11. The House of Lords in the case of Polkey v AE Dayton Services Ltd [1987] IRLR 503 strongly emphasised the importance of procedural safeguards. The employer in this case had no disciplinary code for employees, nor any agreed, accepted or understood procedures in place to deal with disciplinary matters. The tribunal had concern at the apparent lack of or disregard for fair or proper procedure in the respondent's approach to disciplinary matters generally and to this dismissal in particular. The tribunal had serious concern as to the manner of the dismissal.
12. The tribunal notes that there is a category of cases where, upon the facts, there is no need for the employer to have spelled out to an employee, whether in a formal disciplinary code or otherwise, that certain offences shall be regarded by the employer as serious or indeed gross misconduct. One such type of offence is fighting. (See for example the case of C A Parsons & Co Ltd v McLoughlin [1978] IRLR 65 EAT). There was indeed a conflict in the evidence as to whether or not the respondent personally had informed the applicant when he was first engaged by him that fighting would result in "instant dismissal", as it was put in his evidence. In the tribunal's view that is not important. The fact is that the applicant knew, as he freely admitted, that fighting was a serious matter and could potentially result in dismissal. The issue as to whether the fighting might have taken place in hotel premises, as opposed to at the place of work, is also, in the tribunal's view, not of material relevance, as the tribunal notes the clear connection of the events with the respondent's workforce and the potential for the misconduct on the part of the applicant to be associated with the respondent, in view of the public nature of the occurrence and the persons present.
13. There is a category of cases where, upon the facts, it is permissible to dispense with a full and detailed investigation to establish all of the facts. One such case is where an employer personally witnesses fighting between his employees. Here, the fact of the fighting and the identity of those who were fighting might not need to be established - the employer has witnessed most if not all of it himself. However, by dispensing with a proper disciplinary investigation and a fair disciplinary hearing, an employer runs the risk that a dismissal might be adjudged to have been unfair. This is because the reasons underlying the observed misconduct, if properly investigated, might have revealed information which could potentially have had some bearing on the employer's view of the facts and as to the proportionality of the sanction of dismissal - whether it was fair to dismiss upon all the facts. Also the particular context of the misconduct will not have been addressed by the employer, if not investigated. Furthermore, on the evidence, an opportunity had not been afforded to the employee to make any arguments in mitigation prior to the ultimate disciplinary sanction, that of dismissal, being imposed. These matters all go towards the application of the statutory test of whether the employer acted reasonably or unreasonably in treating the stated reason, gross misconduct, as sufficient reason for dismissing this employee.
14. The tribunal noted there was no evidence that the respondent took any steps at all to closely question the applicant as to what precisely had transpired, as the applicant saw it, and as to the precise context in respect of which the conduct alleged had occurred. There was no proper hearing of the applicant's side of things. Clearly this would have been, in the tribunal's opinion, important for a fair and proper investigation. Whilst the tribunal is not permitted to ask, in applying the statutory test of reasonableness, whether it would have made any difference to the outcome if proper procedural steps had been taken, the tribunal can say that the better course would have been for the respondent to have met with the applicant and any other potential witnesses for the purposes of an investigation, to have established to the best extent reasonably possible all the relevant facts, and only then to have held a disciplinary hearing at which the facts as established could have been properly and fairly put to the applicant, an explanation sought, and importantly any arguments in mitigation could have been made by the applicant, prior to any disciplinary sanction being imposed.
15. The tribunal is sometimes met with the argument, in cases where there has been a lack of fair procedure, that the employer nonetheless acted reasonably in taking the view that in the exceptional circumstances of the particular case the procedural steps normally appropriate would have been futile and therefore would have really made no difference to the outcome (see Polkey v AE Dayton Services Ltd referred to above). Such cases are exceptional. This case, in the tribunal's opinion, does not fall into that category.
16. There also appears to have been no facility for an appeal present on account of the respondent's lack of any formal procedures. Leaving aside the defects in the procedures prior to the dismissal, an appeal by way of a rehearing of the matter might have served to rectify any procedural defects. Whilst it is the case that the tribunal, in the situation of a sole proprietorship, is entitled to recognise the impracticality of an appeals procedure if the facts bear this out (see Mackellar v Bolton [1979] IRLR 59) the tribunal is not entirely satisfied that an appeal was totally impracticable in all the circumstances.
17. Looking at all of this, and taking into account all of the circumstances, the tribunal finds that the employer acted unreasonably in treating the reason stated as sufficient reason for dismissing the employee. The tribunal is satisfied that there was a material and a significant unfairness. This unfairness goes to the heart of the dismissal. Therefore, the unanimous view of the tribunal in considering all of the foregoing is that the applicant's dismissal by the respondent was unfair. The applicant's conduct however cannot be ignored in the determination of remedy by the tribunal.

THE TRIBUNAL'S AWARD

18. The tribunal notes that the applicant was paid a gross wage of £180.00 and a nett wage of £155.00 each week. The applicant was aged 48 at the effective date of dismissal and had been continuously employed for one complete year. After dismissal, the applicant claimed and received Job Seekers' Allowance from 15^th January to 21^st February 2001, at a rate of £92.00 per fortnight. The tribunal established, taking into account the final payment of wages made to the applicant, that the relevant period of loss was from the 8^th January 2001 to 21^st February 2001, a period of six and one half weeks. The applicant secured employment after that and there was no continuing loss to be considered.
19. Prior to any deduction, the Basic Award is therefore as follows:-

£180 x 1 1/2 = £270.00

However, the tribunal felt that the applicant, by his own conduct, had very substantially contributed to his dismissal. In these circumstances, it is permissible to reduce the Basic Award by an amount if the tribunal considers that it would be just and equitable so to do. In this case the tribunal makes a reduction of 70%, thus producing a Basic Award of £81.00.

20. In considering the Compensatory Award, the total loss figure, before deductions, would be as follows:-

£155.00 x 6 1/2 weeks = £1,007.50. Adding a sum for loss of Statutory Rights of £100.00, produces a figure of £1,107.50

The tribunal considered whether or not there should be a reduction to that figure on the basis of the possibility that, if fair procedure had been followed, the applicant would have stood a chance of being dismissed in any event. However, it is for the respondent to make that submission or, in the absence of that, for there to be some evidence before the tribunal upon which the tribunal can make such a determination. There was no submission and insufficient evidence in this case, and therefore the tribunal declines to make any reduction on that account.

21. However, the tribunal felt that it was just and equitable to reduce the compensation figure on account of the contributory fault on the applicant's part referred to above. The tribunal determined the appropriate reduction was 70%, thus producing a figure for compensation for loss of £332.25.
22. The total award for the Basic Award and the Compensatory Award is therefore the sum of £413.25. The tribunal therefore Orders the respondent to pay the sum of £413.25 to the applicant, subject to the operation of the Recoupment Regulations.

RECOUPMENT OF BENEFIT FROM AWARD

23. The Applicant did receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 apply. The following recoupment of benefit is therefore applicable in this case:

(a) Monetary Award: £413.25

(b) Prescribed Element: (element relating to nett pay) £302.25

(c) Prescribed Period: 8^th January 2001 to 21^st February 2001

(d) Excess of (a) over (b): £111.00

AND the attached Recoupment Notice forms part of the decision.

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

____________________________________

Date and place of hearing: 14 and 15 January 2002, Londonderry

Date decision recorded in register and issued to parties: 25 March 2002