THE INDUSTRIAL TRIBUNALS

CASE REF:	1548/05

CLAIMANT:		Aaron Michael Cairns

RESPONDENT:		Fuel Preparations International Limited

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and he is not entitled to notice pay.

Constitution of Tribunal:
Chairman:		Ms J Knight
Members:		Mr R McKnight
			Mr A Crawford

Appearances:
The claimant was represented by Mr D Steele, Solicitor, of McGuinness & Canavan, Solicitors.
The respondent was represented by Mr A Scullen,  Lissan Coal Company, of parent company of the respondent.

1.	The issues to be considered by the tribunal were:-

1.	whether the claimant had been dismissed or whether he had resigned; 

2.	if he had been dismissed, was the dismissal unfair and was he entitled to four weeks notice pay.

2.	The tribunal considered the claim of the claimant, the respondent’s response and the evidence of the claimant and Mr Brendan Kelly, on behalf of the respondent.  The tribunal also considered documentation furnished by the parties. Having heard the evidence of and having observed the demeanour of the witnesses, where there was a conflict of evidence between the parties, the tribunal preferred the evidence of Mr Kelly to that of the claimant as being more consistent and credible.

3.	The tribunal made the following findings of relevant facts:-

(1)	The claimant was employed by the respondent as a machine operator from 26 September 2001 until 28 September 2005.  The respondent company is involved in the business of the storage, screening and washing of coal for re-export or delivery by land or boat.  Brendan Kelly is foreman for the respondent and was the claimant’s line manager

(2)	The claimant was based in Shed 6 on the respondent’s site and his normal working hours were 7.30 am to 5.30 pm, Monday to Friday.  The claimant did not have a written contract of employment and there was no policy for dealing with the absence of employees.  There are only two sets of keys for Shed 6, one which is held by the claimant and the other by Mr Kelly.  The tribunal accepted Mr Kelly’s evidence that as he is the foreman with overall responsibility for the yard at all times, the claimant was required to leave his keys at work should he be absent for any reason. 

(3)	The claimant has a young son who in September 2005 was aged just under two years and who lives with his mother, the claimant’s            ex-partner.  The claimant told the tribunal that his son had had problems over the past two years or so.  He had on at least two previous occasions been allowed time off work to take his son to the doctor without any “hassle” from the respondent.  On the evening of 27 September 2005 he noticed that his son had developed a limp.  However the claimant and his ex-partner did not consider their son’s condition serious enough to take him to hospital and he was not in pain.

(4)	The following morning the claimant went into work and at approximately 8.10 am asked for time off that morning to take his son into hospital.  Mr Kelly told him that if the claimant would “give him an hour or two hours work”, he could take the rest of the day off.  It was very busy that morning as a boat had just made a delivery.  The tribunal accepts Mr Kelly’s evidence that the claimant became abusive and used bad language towards him.  He told Mr Kelly that he was going home and as he left the office he slammed the door.  The claimant admitted to the tribunal that he had raised his voice to Mr Kelly and that the conversation became “heated”.

(5)	Approximately 15 minutes later, Mr Kelly telephoned the claimant, who had returned to Shed 6, and told him that he had better go and sort his youngster out and that he was sending another employee to relieve the claimant.  He asked the claimant to leave behind his keys for Shed 6 and go on home.  The tribunal did not accept the claimant’s evidence that Mr Kelly had told him during this conversation to “leave the keys in the shed, the job is no longer yours”.

(6)	The claimant told the tribunal that between 8.30 am and 8.45 am he received a telephone call from his ex-partner to advise him that she had telephoned the health visitor that morning and that a doctor’s appointment had been arranged for his son at 11.05 am.  This was the first time that the claimant was made aware that a doctor’s appointment had actually been arranged for that morning.

(7)	The following day the claimant did not go into work.  Mr Kelly expected the claimant to come into work the following day.  When he did not, he arranged for another employee to cover the claimant’s absence.  Mr Kelly did not contact the claimant.  Mr Kelly advised the tribunal that when the claimant did not phone in, he assumed that the claimant must have left his employment.  He told the tribunal that even now there was a job available for the claimant if he wanted it.

(8)	Three or four days afterwards the claimant sought advice from the Citizens Advice Bureau who referred him to The Law Centre.  On 11 October 2005, on the advice of a solicitor from The Law Centre, the claimant wrote to Mr Kelly asking him to provide written reasons for his dismissal.  The claimant telephoned the respondent on 12 October 2005 to request payment of any overtime pay due to him.  The wages clerk explained to him that he was not due any overtime as his wages for the week commencing 26 September 2005 had been           pre-lodged into his bank account by the wages clerk as she was off on leave that week.  She further told him that as he had been paid for 29 and 30 September 2005, he actually owed the respondent £17.72, but the respondent was “letting this go”.

(9)	The respondent wrote to the claimant by letter dated 17 October 2005 asking him to note that he was not dismissed but had left his employment of his own accord.  The claimant lodged his complaint with the Office of Industrial Tribunals on 7 December 2005 seeking compensation for unfair dismissal and notice pay.

(10)	The claimant obtained casual employment between 1 November and 9 December 2005.  He subsequently obtained a full-time position from 10 April 2006 which is better paid than his employment with the respondent. 

The law

4.	Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides that an employee has the right not to be unfairly dismissed by his employer.  Article 127 sets out the circumstances in which an employee is dismissed.  Article 127(1)(a) provides that an employee is dismissed by his employer if, and subject to Paragraph 2, only if:-

(a)	The contract under which he is employed is terminated by the employer whether with or without notice.

5.	The burden of proof is on the claimant to prove the fact of dismissal on a balance of probabilities.

Conclusion

6.	It was the claimant’s case that he was dismissed by Mr Kelly during the course of the telephone call.  The tribunal has found as a fact that Mr Kelly did not say “Leave your keys in the shed, the job is no longer yours”. The tribunal concluded that the fact that Mr Kelly requested the claimant leave behind his keys, could and did not amount to words of dismissal of the claimant.  The claimant was ordinarily required to leave his keys whenever he was not in work.  Therefore the tribunal finds that the claimant was not dismissed by the respondent but terminated his own employment when he did not return to work the following day.

7.	The tribunal has to say that it found aspects of both the claimant’s and Mr Kelly’s evidence unsatisfactory.  The tribunal did not accept the respondent’s contention that the claimant’s job was still open to him.  However, on balance the tribunal found Mr Kelly to be the more credible witness. 

8.	The tribunal took into account that the claimant had been less than honest when he requested time off work to take his son to the doctor.  On the claimant’s own evidence, he had gone into work on the morning of 28 September 2005 and requested time off to take his child to the doctor before he even knew that an appointment had been made.  It was therefore not true that there had been a pre-arranged appointment with the GP.  The tribunal cannot comprehend why the claimant became angry with Mr Kelly when he asked him to work for a couple of hours before being released to take his son to the doctor but this anger perhaps explains why the claimant did not return to work the following day.

9.	The tribunal declines the invitation of the claimant’s representative to find that the fact that the respondent did not contact the claimant when he failed to attend for work the following day was evidence that he had been dismissed.  Similarly, although the tribunal disapproves of the fact that the respondent did not, at the time, have in place policies or procedures for dealing with unauthorised absences, this does not constitute proof that the claimant was dismissed.

10.	The tribunal therefore finds that the claimant terminated his own contract of employment and that he had effectively resigned without notice.  Accordingly, the tribunal concludes that the contract under which the claimant was employed was not terminated by Mr Kelly and therefore he was not dismissed in accordance with Article 127(1)(a) if the 1996 Order.  Accordingly, the claimant’s claim of unfair dismissal and for notice pay is not upheld by the tribunal.

Chairman:

Date and place of hearing:		25 May 2006, Londonderry

Date decision recorded in register and issued to parties: