THE INDUSTRIAL TRIBUNALS

CASE REF:  1045/07

CLAIMANT:			Gary McKessick

RESPONDENT:		Top Dog (Animal Housing) Ltd

DECISION
The unanimous decision of the tribunal is that the claimant’s claims for notice pay and holiday pay are dismissed.

Constitution of Tribunal:
Chairman:		Ms P Sheils
Members:		Mr B Irwin
			Mr J Patterson

Appearances:

The claimant did not attend nor was he represented.

The respondent was represented by the company’s owner Mr Mark Donley and the company’s Production Manager, Mr Mario Dunlop.

The Claim and the Defence

The claimant lodged a claim for unpaid notice pay and holiday pay arising out of the respondent’s dismissal of him.

The respondent’s response indicated that they had summarily dismissed the claimant for gross misconduct on the grounds of health and safety, having failed to have regard to any warnings.  The respondent indicated that all outstanding hours and payments including holiday pay had been paid to the claimant.  

The Hearing

In the absence of the claimant the Tribunal referred itself to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, Rule 27(5).  That rule states that “if a party fails to attend or to be represented (for the purpose of conducting the parties case at the hearing under Rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.  

If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph 5 it shall first consider any information in its possession which has been made available to it by the parties.

In its consideration of whether the Tribunal should dismiss or dispose of the hearing the Tribunal decided that there was no indication that the claimant had not received notice of the hearing and that there was no basis on which the case should be adjourned.  

The Tribunal considered the claim form and the respondents’ response and decided to dispose of the matter with reference to these and to evidence from the respondent witnesses.

The Relevant Facts

The claimant commenced working for the respondent company and was employed by Mr Mark Donley on 5 May 2006, as a van driver.  His employment was terminated by Mr Mark Donley on Friday 16 February 2007 when he was summarily dismissed by him.

From the outset of his employment as a van driver and including the first day of his employment the claimant was involved in a number of accidents involving the company’s vehicles.  These accidents ranged from careless bangs and scrapes right through to one of the company’s vans being written-off in a road traffic accident in which the claimant was involved.

Mr Donley spoke to the claimant on numerous occasions during his employment about the carelessness with which he drove and the number of accidents the claimant had which caused damage to company vehicles.

On the occasions he spoke to the claimant Mr Donley indicated to him that he was giving him warnings about his driving.  The Tribunal noted that these warnings were verbal and, in Mr Donley’s words, casual.  Mr Donley accepted that he had not recorded any of these warnings.  The Tribunal accepted Mr Donley’s explanation that when he spoke to the claimant in these terms it was so that the claimant would improve at his job and not to prepare or pave the way to dismiss the claimant.

On 16 February 2007 the claimant had gone off the respondent’s premises to collect steel.  The pieces of steel were quite long. The claimant had been dispatched to collect the steel in a company van with a trailer attached for the steel. Mr Donley was in the office when the claimant rang the secretary and asked if he could cut the steel in two so that it would fit in the van.  Mr Donley overheard this conversation and conveyed to the claimant that the steel was not to be cut in two, that it was to be put in the trailer which had been sent with the claimant for the purpose.

The claimant did not use the trailer.  Instead he put the steel inside the van.  Due to its length the steel necessarily protruded from the back of the van, through its open doors.  At the first corner the claimant came to and turned the steel protruded from the van onto the public highway by a good 10–12 feet.  Mr Donley indicated to the Tribunal that the steel would have been long enough to have protruded across to the other side of the road.  The claimant’s actions resulted in the steel being buckled and the back doors of the van being irreparably damaged.  

The claimant returned to the company premises.  He immediately spoke to Mr Donley and indicated that the damage had been caused by his own stupidity.  

At a later point in the morning Mr Donley told the claimant that he wished to speak to him. He told the claimant that he could bring a friend or work colleague with him into Mr Donley’s offices to accompany him.

At approximately 11.00 o’clock that morning the claimant attended Mr Donley’s offices on his own.  Mr Donley gave the claimant his wages and sacked him there and then. Mr Donley told the claimant that his actions had been very dangerous and that he could have caused serious injury to members of the public. Mr Donley also told the claimant that he could no longer afford the damage the claimant was causing to the company vehicles.  However, Mr Donley stressed to the claimant that his anxiety went beyond concern for the company vehicles and were genuine concerns for the harm the claimant’s actions could have cause to himself or members of the public.

The claimant accepted his dismissal and acknowledged that it had been brought about by his own actions in this latest driving incident.  Mr Donley stated that the claimant’s attitude of accepting and understanding the situation made the job of having to sack him more uncomfortable.  

Shortly after his dismissal Mr Donley received a letter from the claimant dated 23 February 2007 in which the claimant referred to his “unexpected dismissal”.  This letter indicated that the claimant had discussed his dismissal with the Fair Employment Agency.  In it the claimant sought one week’s wages in lieu of notice.

By letter dated 26 March 2007 the respondent set out the reasons for his having dismissed the claimant.  He made it clear that he had not terminated the claimant’s employment for the damage caused to the van but for the way in which the claimant had stacked the van and driven with the steel protruding from the back which could have caused an accident.  This letter also referred to the occasions on which Mr Donley had spoken to the claimant about his driving and given him “countless chances” to improve.  

The Tribunal heard from Mr Dunlop, the company’s Production Manager. The claimant’s contract was a short term fixed term contract and this contract had been continued without ever having been confirmed. Mr Dunlop also indicated that the claimant had a basic contract, which was a contract telling the claimant what work he was to do, his hours of work, his holiday entitlement, and the employer’s right to ask the claimant to do other work if required.  Mr Dunlop indicated that this contract did not contain any reference to disciplinary rules.

Mr Dunlop indicated that his employees received 21 days holidays in any year.  However, Mr Dunlop indicated that the company worked a system whereby all holidays were taken within the calendar year so that employees started in January with a clean slate.  Mr Dunlop indicated that although each employee received 21 days holidays these were accrued during the year and that by the date of his dismissal in February the claimant was entitled to 1.6 annual leave days.

Mr Dunlop produced the claimant’s wages worksheet showing the wages paid to and holidays taken by the claimant.  It was clear to the Tribunal that the claimant had been paid a sum of money in the week after his dismissal that represented payment to him of his wages for the hours worked in the week of his dismissal and his outstanding holiday entitlement.  

The Tribunal’s Conclusions

The Tribunal concluded that the claimant had demonstrated carelessness in his driving during his employment that had necessitated Mr Donley to speak to him on a number of occasions.  The Tribunal accepted that Mr Donley had remonstrated with the claimant in order that the claimant’s work would improve.  

The Tribunal accepted that the respondent had been consistent in stating the reason for the claimant’s dismissal which was that his driving on the morning of his dismissal had constituted a breach of health and safety regulations and presented a danger to other people.  The Tribunal was satisfied that this reason amounted to a justification for summarily dismissing the claimant.  Accordingly the claimant was not entitled to receive any pay in lieu of notice.  Furthermore, the tribunal was satisfied that the claimant had received his outstanding holiday money.

Accordingly the Tribunal dismissed the claims.

Chairman:

Date and place of hearing:	5 September 2007, Belfast.

Date decision recorded in register and issued to parties: