THE INDUSTRIAL TRIBUNALS 

CASE REF:	644/04

					

APPLICANT:	Karol Mooney		

RESPONDENT:	Magennis’s Bar Limited

DECISION 

The unanimous decision of the tribunal is that:-
1.	The title to the proceedings be amended by agreement to show the respondent as Magennis’s Bar Limited.
2.	The applicant was unfairly dismissed.
3.	The respondent pay to the applicant the sum of £6,829.00.                    . 

Appearances:
The applicant was represented by Mr M Phillips, Barrister-at-Law instructed by Murphy & O’Rawe Solicitors.
The respondent was represented by Mr D Kelly of Peninsula Business Services. 
  	
Summary Reasons

1.	The applicant commenced employment as a barman with the respondent’s predecessor in May 2000.  He continued in employment up to and after the taking over of the undertaking by the respondent in November 2003.  It was accepted by the respondent that there was a relevant transfer of the undertaking and that, accordingly, the rights and duties pertaining to the applicant’s employment were transferred to the respondent along with the business.  The applicant continued in employment until 14 January 2004 when he was dismissed by the respondent.  The reason for the dismissal, as expressed in the respondent’s form of IT3,  and in the submission put forward on the respondent’s behalf, was that he had permitted a breach of the licensing laws by allowing after hours drinking when he had been in charge of the respondent’s licensed premises.

2.	It was common case that, prior to the respondent’s requiring Magennis’s Bar, it had been renowned for late drinking for years.  Indeed, the previous owner, shortly before the transfer of the premises, had been fined £18,000.00 for this reason.  There was no question but that this was common knowledge.  It was also common case, and accepted by the respondent, that after the respondent had acquired the premises, along with the staff, no instruction had been issued to staff, or warning given, that such practices should cease or that such behaviour would be regarded as unacceptable.  

3.	As regards the remaining salient facts there was a clear conflict of evidence as between the applicant and the respondent.  There were some admitted inaccuracies and some inconsistencies in the documents and evidence presented by the respondent.  There were also some features of the respondent’s evidence which gave rise to doubt.  The tribunal preferred the evidence of the applicant.  In particular the tribunal found, on the basis  of the evidence of the applicant and of his partner, that the applicant had enquired as to whether it would be in order to stay on for a drink after work and that on New Year’s Eve of 2004 the respondent’s managing director had been on the premises after hours in the company of a number of staff and friends when drink had been purchased and consumed over a period of some hours.  The security log showed that the premises were closed on New Year’s Eve night at twelve minutes past five in the morning.  The tribunal does not accept that the time between 1.00 am, at the end of licensing hours, and 05.12 am was used for stock taking.  The tribunal accepts that, on a subsequent date, the applicant did stay on the premises with members of staff and a friend, together with a further friend who came to pick him up.  However, given the long-standing practice at the particular bar, the lack of any indication that such practice was to cease, the indication given that staying on after hours would be permitted and the managing director’s own participation in the activity of which he subsequently complained, the tribunal finds that it was not open to the respondent, some two weeks later, to declare that such behaviour was wholly unacceptable and to effect a summary dismissal of the applicant on that ground.  It also follows, from these findings, that the applicant’s conduct in this regard could not be said to amount to contributory fault.

4.	There was some suggestion in the evidence presented by the respondent to the tribunal that the applicant had been responsible for the loss of a quantity of cider and that this was further reason for dismissal.  The tribunal is satisfied that the principal reason for the dismissal was the after hours drinking and that, on the evidence available and disclosed to the tribunal, no dismissal or deduction from wages could have been justified.  Indeed it was conceded at the hearing that the deductions made from the applicant’s wages in this respect would be repaid.  It was also conceded by the applicant that no issue would be taken over the suggestion, in his Originating Application, that there was outstanding holiday pay due to him.

5.	The parties had reached agreement as to the nature of the losses sustained by the applicant.  The basic award falls to be calculated as from an effective date of termination of 4 February 2004 in the light of the provisions of Article 129 of the Employment Rights Order.  Working back from that date the applicant had three complete years of service during two of which he was not below the age of twenty two.  The applicant’s gross wage was in excess of the statutory maximum applicable at the relevant time which was £250.00.  Accordingly, the basic award is as follows:-

2 x (£250.00) + ½ x (£250.00)  =	£625.00.

The parties agreed that the applicant should be awarded the sum of £250.00 for loss of statutory rights.   The applicant made no claim and offered no evidence of failure to provide written reasons for dismissal so no question of such an award arises.  The parties also agreed that following his dismissal the applicant sustained loss at the rate of his agreed net wage of £229.00 per week.  The tribunal, having heard the applicant’s evidence, nonetheless considers that the applicant should have been able to obtain comparable employment within a period of twenty six weeks from the date his contract terminated, namely 14 January 2004.  Accordingly the tribunal awards the sum of 26 x £229.00 = 	£5,954.00 as being the amount it considers to be just and equitable by way of compensatory award..

It follows that no question of continuing loss arises.  The total amount of the basic and compensatory award together with the sum payable for loss of statutory rights is £6,829.00 which is payable by the respondent to the applicant.

Recoupment

6.	The prescribed element amounts to £5,954.00 and the period attributable to the prescribed element is from 15 January 2004 to 15 July 2004.

Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Interest

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

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Chairman:

Date and place of hearing:	19 November 2004, Belfast.

Date decision recorded in register and issued to parties: