McMillan v Tullymore House Ltd [2004] NIIT 9410_03 (10 September 2004)

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URL: http://www.bailii.org/nie/cases/NIIT/2004/9410_03.html
Cite as: [2004] NIIT 9410_3, [2004] NIIT 9410_03

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 9410/03

    APPLICANT: Donald Thomas McMillan

    RESPONDENT: Tullymore House Limited

    DECISION

    The unanimous decision of the tribunal is that the applicant was constructively dismissed on 2 September 2003, and orders the respondent to compensate him in the amount of £6,974.74. The tribunal determines the respondent has conducted these proceedings in an unreasonable manner which violates the tribunal's overriding principal. Accordingly, the tribunal further orders the respondent to pay £750.00 of the applicant's costs.

    Appearances:

    The applicant was represented by Mr D Sharpe, Barrister-at-Law, instructed by L Cubitt & Co., Solicitors.

    The respondent did not appear and was not represented.

    Extended Reasons:

    Pursuant to Rule 12(4)(d) of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004, these reasons are given in extended form.

    The tribunal found the following facts:

  1. By his Originating Application, presented on 19 November 2003, the applicant alleged he had been unfairly selected for redundancy and constructively dismissed during the first week of September 2003. The applicant claimed compensation for this unfair dismissal. Prior to this date, he had been employed from 1 September 1993, and worked a forty-hour week. His employer was Tullymore House Limited. He was born on 1 February 1956. The applicant was employed as a night porter at the Tullymore House Hotel. In 1993 the applicant moved house from Portglenone to Broughshane in order to be nearer his work. In or about 2001, the applicant was presented with written particulars of employment, which were never signed by the parties. These written particulars contained no mobility clause.

  2. The respondent did not present a Notice of Appearance to the applicant's Originating Application.

  3. The applicant's hours of work were 11.00 pm – 7.00 am, seven nights per week, for the first seven years of his employment. Thereafter, he worked the same hours six nights per week. He worked all the statutory days, and was given two week's holiday per annum. He had a clear disciplinary record.

  4. On 3 May 2003, the applicant's manager (Steven McCartney) informed him that he would be transferred to Galgorm Manor, which is a sister hotel of the respondent. Both hotels are run by the same directors, and were family-run concerns. The registered office of the respondent is at the offices of D T Carson & Co., Chartered Accountants, 51 Thomas Street, Ballymena, County Antrim, BT43 6AZ. Galgorm Manor is about seven miles from Tullymore House Hotel. On 5 May 2003, the applicant spoke to Paul Smith, a manager at Galgorm Manor, who advised the applicant he would work three nights a week at Galgorm Manor (Monday-Wednesday) and Thursday, Friday and Saturday or Sunday nights at Tullymore House Hotel. The applicant was informed he had no choice in working on two different sites. Travelling to Galgorm Manor involved additional expense for the applicant, but no additional claim was made for such expenses before the tribunal. From 5 May 2003 onwards, the applicant worked 33 hours per week at Galgorm Manor, but was offered a total of only four night's work at Tullymore House Hotel from 5 May 2004 – 1 September 2004. This left a shortfall of seven night's work per month. The applicant spoke to Mr Smith about this shortfall upwards of a dozen times. By the first week of September 2003, it was clear to the applicant his work situation would not improve, and he resigned in writing on or about 2 September 2003. By that date, he had lost 35% of his working hours per week for every week over a period of four months.

  5. Tullymore House Hotel closed to the public in October 2003, and was subsequently sold for a new housing development. The tribunal finds that the respondent's conduct was designed to frustrate the applicant into resigning.

  6. The tribunal received in evidence a letter from S Topping of the Registry of Companies, dated 7 May 2004, which advised that "at present there are no insolvency or administration procedures in place for this company. The last accounts were for period ended 31 October 2002".

  7. We find the effective date of termination was 2 September 2003. The applicant was re-employed from 21 September 2003 at the Adair Arms Hotel in Ballymena, where he continues to work as a night porter. He did not claim any state benefits from 2 September to 21 September 2003. He now earns £208.00 gross and £174.00 nett per week. Therefore, he has a shortfall of £41.00 per week gross; £26.58 nett per week.

  8. On 12 May 2004, the applicant's solicitors wrote to Messrs D T Carson & Co., the registered address of the respondent, to advise that "… No appearance has been entered by the Company and we were informed that it has not gone into liquidation and the case will therefore proceed unless there is (sic.) some proposals. We would be obliged if you could bring this to the attention of the Company and its Directors". No reply was ever received to this letter. The applicant submitted that his legal costs in conducting his complaint totalled £2,170.00 plus VAT.

    9. The Decision of the tribunal:

  9. Having considered the Originating Application, all the evidence before it (oral and documentary) and Mr Sharpe's submissions, the tribunal unanimously determines as follows:

    10. (a) The applicant was employed from 1 September 1993 to 2 September 2003. Therefore, he was employed for a period of ten years. On the effective date of termination, he was aged forty seven years. He had worked six years for respondent over the age of 41 years, and four years under the age of 41 years, pursuant to Article 153 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order").

    (b) The tribunal determines the effective date of termination is 2 September 2003. Pursuant to Article 126 of the 1996 Order, the tribunal determines that the applicant was unfairly dismissed on 2 September 2003. Specifically, pursuant to Article 127(1)(c) of the 1996 Order, the tribunal determines that the respondent's conduct was such as to entitle the applicant to terminate his contract. The respondent had enforced changes to the working routine of a long-standing employee, with a completely clear disciplinary record. The applicant's terms and conditions of employment had no mobility clause, and the enforced changes to his work routine, which had the effect of enforcing a deficit of 35% hours worked per week over four months was a fundamental breach of contract by the respondent. Moreover, if there were any doubt about this, nothing was done in response to the applicant's dozen or so grievances about his situation. Accordingly, the applicant's dismissal was unfair, contrary to Article 130 of the 1996 Order.

    (c) The applicant was re-employed three weeks after his dismissal, and has an ongoing loss of £26.58 nett per week.

    (d) The tribunal determines the applicant did not contribute to his dismissal, pursuant to Article 156(2) and Article 157(6) of the 1996 Order.

    (e) The tribunal determines that the applicant has not failed to mitigate his loss, pursuant to Article 157(4) of the 1996 Order.

    (f) Pursuant to Article 157(1) of the 1996 Order, and considering the applicant's age at the date of hearing, the tribunal considers it just and equitable to allow one year's future loss, and £400.00 for loss of statutory rights.

    (g) Pursuant to Articles 156-157 of the 1996 Order, the tribunal therefore makes the following order for compensation.

    (A) Basic Award

    £249.00 x 4 x 1 = £ 996.00

    £249.00 x 6 x 1½ = £2,241.00

    £3,237.00 £3,237.00

    (B) Compensatory Award

    Loss of income from 2 September 2003-
    21 September 2003 (3 weeks) £ 600.00
    Loss of income from 21 September 2003-
    10 September 2004 (51 weeks)
    51 x £26.58 £1,355.58
    Future loss £26.58 x 52 weeks £1,382.16
    Loss of statutory rights £ 400.00 £3,737.74
    (C) Total Monetary Award (A) + (B) £6,974.74

    (h) The tribunal has given extensive consideration to the reasoning of the Employment Appeal Tribunal in Kopel –v- Safeway Stores Plc [2003] IRLR 753. With regard to the letter from the applicant's solicitors, dated 12 May 2004, the tribunal determines that the applicant was thereby attempting to invite the respondent to make proposals for the expeditious and fair disposal of his complaint, particularly where no Notice of Appearance had been presented. Regulation 9(2) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004 ("the 2004 Rules") provides the tribunal with an overriding objective;

    9(2) Dealing with a case justly includes, so far as practicable –
    a. ensuring that the parties are on an equal footing;
    b. saving expense;
    c. dealing with the case in ways which are proportionate to the complexity of the issues; and
    d. ensuring that it is dealt with expeditiously and fairly.

    (i) By Regulation 9(3) of the Rules, the tribunal is required to give effect to the overriding objective when it interprets and exercises it powers under Schedules 1-6 of the 2004 Rules. Pursuant to Rule 14(1) of Schedule 1 to the 2004 Rules, the tribunal determines the respondent's failure to reply to the applicant's letter of 12 May 2004 was unreasonable conduct of these proceedings. However, the tribunal determines the applicant's submission of £2,170 + VAT to be somewhat excessive. Pursuant to Rule 14(3)(a) of Schedule 1 to be the 2004 Rules, the tribunal orders the respondent to pay the applicant's costs in the amount of £750.00.

  10. The tribunal does not consider it appropriate to exercise its discretion to make any deduction to the above amount, pursuant to Article 162(A) of the 1996 Order (failure to pursue an internal appeal) since this is a claim for constructive dismissal.

  11. The applicant did not claim or receive any benefit to which the Employment Protection (Recoupment of Jobseekers' & Income Support) Regulations (Northern Ireland) 1996 applies.

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

  13. No further or other Order is made.

    14. Chairman:

    Date and place of hearing: 10 September 2004, Belfast.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/9410_03.html