McDonald v Wright (t/a LTH Wright & Son) (Unfair Dismissal) [2002] NIIT 3188_01 (23 May 2002)
THE INDUSTRIAL TRIBUNALS
CASE REF: 3188/01
APPLICANT: Stuart McDonald
RESPONDENT: Leslie Wright
t/a L T H Wright & Son
DECISION
The unanimous decision of the tribunal is that the applicant was unfairly dismissed. The tribunal orders the respondent to pay compensation to the applicant of the sum of £7,057.80.
Appearances:
The applicant appeared and represented himself.
There was no appearance for or on behalf of the respondent
This is a reserved decision in summary form.
THE ISSUE
- The applicant's claim was that he had been unfairly dismissed by his employer, the respondent. The tribunal accordingly had to decide whether or not the applicant had been dismissed and, if so, whether any dismissal was unfair.
THE TRIBUNAL'S FINDINGS
In consequence of the written and oral evidence adduced before it the tribunal found the following facts: -
- The respondent, at the material time, was engaged in the quarrying and construction business as the sole proprietor of a firm, L T H Wright & Son, which firm had its principal place of business at Newtownards, County Down. The applicant was employed as a digger driver by the respondent, commencing in this employment on 7 August 2000.
- One of the functions of the applicant's job was to operate a particular piece of quarrying equipment known as a "screener". The function of the screener was to grade stones and gravel into different grades or sizes. A relatively short time prior to the date upon which the applicant's employment with the respondent came to an end, the respondent had purchased a new screener at a cost of approximately £50,000. At the material time, the applicant was working for the respondent on a site at Ballylumford and was engaged in an excavation or construction project, which project involved the applicant being in charge of and operating the new screener. Other employees of the respondent had used the screener for a brief period before the applicant commenced using it.
- In the course of the applicant operating the screener, stones and gravel fell down the side of the screener damaging the paintwork. This damage was particularly on one side of the screener and consisted of scoring or scraping of some of the paintwork caused by abrasion from the falling stones. There was no other damage done to the equipment apart from that to the paintwork. At the relevant time, the applicant had operated the equipment for approximately two weeks and the screener had been in use, operated both by the applicant and also by other employees, for a total period of three weeks or so. The paintwork had also been scraped or damaged prior to the applicant first using the equipment. The tribunal, having heard the applicant's evidence, accepts that, on account of the method of operation with which the applicant was tasked, some damage to or scraping of the screener's paintwork seemed to be unavoidable, being an inevitable consequence of the usage of the equipment as it was organised by the employer.
- On 4 September 2001, the applicant was present in the respondent's business premises. It had apparently been reported to the respondent by another employee, a Mr Stirling, that the paintwork on the screener had been damaged by the applicant. The respondent approached the applicant and began to berate him in heated tones in front of other employees. The respondent told the applicant to "get down the road". The applicant then pointed out to the respondent that he (the respondent) had not personally seen any damage to the equipment but that the respondent appeared to have been merely acting on the report of any damage made to him by Mr Stirling. At that point the respondent told the applicant to get out of the yard. As the applicant was about to leave the respondent called him into the office. The respondent then asked the applicant about the damage to the machine and the applicant described the manner in which the paintwork had been scraped and the cause. At that point the respondent told the applicant that he was "sacked". The tribunal finds that the applicant was, on that day the 4 September 2001, summarily dismissed by the respondent without notice or pay in lieu of notice.
THE TRIBUNAL'S DECISION
- 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. In this case, there was no Notice of Appearance by the respondent nor any other representation made to the tribunal on behalf of the respondent. In the absence of any appearance on behalf of the respondent, the tribunal had before it no information nor any contentions or submissions as to the reason or reasons for any dismissal on the respondent's part, or as to the fairness of any dismissal on account of any of the possible reasons set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996.
- In this case, on the evidence before it, the tribunal unanimously and without any difficulty finds that that the dismissal of the applicant by the respondent was unfair, both upon substantive and upon procedural grounds. The tribunal takes the view that, in a case such as this, there is no need to refer expressly to the leading authorities upon the issues of the reasonableness of the employer's conduct nor in respect of the importance of procedural safeguards.
- As the applicant did not seek from the tribunal the remedies of either reinstatement or re-engagement, the tribunal is therefore concerned with the issue of compensation only in respect of this unfair dismissal. The tribunal permitted documentary evidence to be adduced by the applicant in respect of earnings and wages received in this employment. On the basis of this evidence, the tribunal determines that the appropriate figure for gross pay per week is £334.75 and the appropriate figure for net pay is £293.88. After the dismissal, which was on 4 September 2001, the applicant did not sign on for state benefits but he worked casually from time to time when he could, and he earned in total the sum of £500 net between the date of dismissal and the date of his securing permanent employment. After this temporary period of casual employment, the applicant commenced working for DMD Transport in early January of 2002 as a driver's helper, earning a wage of £176 net per week. The tribunal took this employment to have subsisted for 10 weeks at the date of hearing. The tribunal noted that the applicant had made a number of attempts to secure further work as a digger driver at a greater wage than the wage being earned with DMD Transport, but he had not been successful in that regard at the date of the tribunal hearing. Taking all this into account, the tribunal felt it appropriate to make an award for compensation for loss up to the date of hearing and also an award for future loss for a further 8 weeks of future loss thereafter.
- The tribunal therefore Orders the respondent to pay compensation to the applicant as follows:-
Basic Award
£240.00 x 1 = £240.00
Compensatory Award
(i) Loss to date of hearing (27 weeks)
£293.88 x 27 = £7,934.76
less sums earned in casual employment £500.00
less wages earned in employment £1,760.00
£5,674.76
(ii) Future loss £117.88 x 8 = £943.04
£6,617.80
(iii) Loss of statutory industrial rights £200.00
TOTAL AWARD £7,057.80
No recoupment of benefits is applicable.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990
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Date and place of hearing:
Date decision recorded in register and issued to parties: 23 May 2002
