THE INDUSTRIAL TRIBUNALS 

CASE REF:	2501/06

CLAIMANT:	GARETH VINT

RESPONDENT:	BALTIMORE JACKS LIMITED
	T/A SPRINGSTEENS EASY DINER

DECISION

The unanimous decision of the tribunal is that:-

(i)	The title of the proceedings is amended to Baltimore Jacks Limited trading as Springsteens Easy Diner.

(ii)	The claimant was unfairly dismissed by the respondent.

(iii)	The respondent is ordered to pay to the claimant £72.50. 

Constitution of Tribunal:

Chairman:		Mr Travers

Panel Members:	Ms McNulty
			Mr Wilkinson

Appearances:

The claimant was not represented and appeared in person.

The respondent was represented by Mr Terry Hall of the respondent company

					REASONS

ISSUES

1.	The claimant was dismissed summarily by the respondent for alleged gross misconduct.

The tribunal must decide:-

•	Was the dismissal unfair?

•	If so, what is the claimant’s remedy?

FACTS

2.	The claimant was employed by the respondent as a chef in a restaurant known as Springsteens Easy Diner.  His basic pay exceeded £290 per week. 

3.	The response form states, and the tribunal finds, that the correct name of the respondent is Baltimore Jacks Ltd t/a Springsteens Easy Diner.  

4.	The claimant first worked for the respondent in 1999, however his continuity of employment was broken in 2004 when he left the respondent’s employment for a short period of time.  The tribunal finds that the relevant period of employment in respect of this claim is from 02/10/04 until 19/08/06.  At all material times the claimant was not below the age of 22.

5.	On Saturday 19/08/06 at around lunchtime, the claimant approached the head chef to ask about his entitlement to paid leave.  This was a matter which he had already raised on a number of previous occasions with various members of management.  On each occasion the claimant had been told that he did not have any entitlement to further paid leave at that time in view of the leave which he had already taken that year.  The claimant felt strongly that he was being treated unfairly as compared to other members of staff.

6.	On the claimant’s own account, at the time that he approached the head chef, the dining room was quite full.  The tribunal was told that there is an open serving area between the kitchen and the dining room.  This means that raised voices in the kitchen can be heard by diners.

7.	Upon being approached by the claimant with his query about paid leave, the head chef repeated the negative reply that the claimant had already been given on previous occasions. 

8.	The claimant told the tribunal that he, “started being loud”, after the head chef answered his question about further paid leave.  The claimant said that he called the head chef a, “fucking wanker and a fucking dickhead”.  The claimant also admits threatening the head chef that he was going to make allegations about the chef’s personal life to the man’s wife.

9.	The tribunal finds that on 19/08/06 the claimant lost control of his temper in the kitchen.  His abuse of the head chef, peppered with expletives, was shouted and could be heard by customers.  The claimant’s conduct created an unpleasant atmosphere in the dining room which was entirely contrary to that which the respondent seeks to create for its diners. 

10.	The claimant was sent to the staff room for a cigarette break to allow him to calm down.  The second chef went with the claimant in the hope of assisting him to do so.

11.	Unfortunately, the claimant emerged from the staff room a few minutes later displaying an even more aggressive demeanour.  He continued to use expletives and to shout at and threaten the head chef.  He unsuccessfully sought to goad the head chef into fighting with him.  His conduct was of particular concern to the members of staff present in a busy kitchen which was full of knives and a variety of hot pans and liquids. 

12.	The restaurant staff contacted by telephone Mr Terry Hall, who is described as the owner of the business.  On Mr Hall’s instructions, the claimant was sent home but told to return an hour later for a meeting with Mr Hall.  In a written statement presented to the tribunal with the response form, Mr Hall wrote: “Once I had spoken to my Management Team and got the facts it was blatantly clear to me that Gareth’s behaviour was totally unacceptable no matter what his excuse was but as an employer needed to hear his side of the story.”

13.	The claimant attended the meeting that afternoon with his mother.  During the course of the meeting the claimant was unapologetic about his earlier behaviour.  At the conclusion of the meeting, Mr Hall informed the claimant that he was being dismissed for gross misconduct. 

14.	Subsequently, by letter dated 20/08/06, Mr Hall wrote to the claimant in the following terms:

	“I am hereby writing to confirm your dismissal on Saturday 19th August 2006, due to Gross Misconduct.

		Please note that any pay due to you will be forwarded as soon as possible once our Accountants have notified us with the final figure.”

15.	The claimant is currently unemployed and is seeking work in a field other than catering.  The claimant told the tribunal that, had he wished to do so, he could have found employment locally in the catering trade immediately upon his dismissal.   

LAW

16.	Article 130A of the Employment Rights (Northern Ireland) Order 1996 as amended [“ERO”], provides that in respect of a dismissal contemplated after 05/04/05, a minimum statutory procedure must be followed otherwise any dismissal shall be regarded as unfair. 

17.	The statutory dismissal procedures are set out in Schedule 1 Part 1 of The Employment (Northern Ireland) Order 2003 [“TEO”].  Schedule 1 sets out a standard dismissal and disciplinary procedure and a modified procedure.

18.	Pursuant to Regulation 3 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

19.	The standard procedure provides as follows:

“1.  - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

2.  - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless - 
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

  3.  - (1) If the employee does wish to appeal, he must inform the employer.

    (2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

    (3) The employee must take all reasonable steps to attend the meeting.

    (4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

    (5) After the appeal meeting, the employer must inform the employee of his final decision.”

20.	Where an employee is regarded as unfairly dismissed pursuant to Article 130A of the ERO, a minimum basic award of four weeks pay shall be awarded if the compensatory element of the award for unfair dismissal is less than 4 weeks pay [see Article 154(1A) ERO]. Under Article 154(1B) ERO, a tribunal is not required to enhance the minimum basic award to four weeks pay, “if it considers that the increase would result in injustice to the employer”.

21.	Article 153 ERO provides that a basic award of one weeks pay shall be made for each year of employment in which the claimant was not below 22 years of age.  In August 2006, the amount of a weeks gross pay which counted towards a basic award was capped at £290.

22.	Article 156(2) ERO provides that where a tribunal considers that any conduct of the claimant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, the tribunal shall reduce the amount accordingly.

CONCLUSION

23.	The tribunal finds that the claimant was automatically unfairly dismissed pursuant to the ERO, Article 130A. 

24.	On the respondent’s own case as set out in Mr Hall’s statement, at the time that the meeting between the claimant and Mr Hall was arranged on the afternoon of 19/08/06, dismissal or disciplinary action against the claimant was contemplated.  In the circumstances, the standard procedure under Schedule 1 of TEO applied.

25.	The procedure followed by the respondent did not comply with Schedule 1 of TEO.  There were a number of failings.  The most basic of which was that the claimant was not informed in writing of the alleged conduct which led the respondent to contemplate dismissal prior to being invited to the disciplinary meeting.

Remedy

26.	The tribunal accepts the claimant’s evidence that he could have found work immediately upon dismissal had he chosen to do so.  In the circumstances, no compensatory award is made.

27.	In view of the fact that the claimant has chosen to remain out of work while he seeks employment in a field unrelated to his existing skills and experience in the catering industry, no award for loss of statutory rights is made.

28.	In considering the level of the basic award, the tribunal has taken into account the claimant’s conduct at work on 19/08/06.  His failure to control his temper caused alarm to both his colleagues and the diners in the restaurant.  There is little doubt that the claimant’s behaviour significantly undermined the prospects of continuing a satisfactory working relationship with his fellow employees.  If the claimant had drawn breath for a moment, it would have been clear to him that his very public and unpleasant expressions of anger ran the risk of distressing his colleagues and causing the respondent to lose customers.  In the circumstances, the tribunal finds that an enhancement of the basic award pursuant to Article 154(1A) ERO would cause injustice to the respondent.

29.	At the date of his dismissal, the claimant had completed one full year of service since his re-employment in October 2004.  Accordingly, he is entitled to a basic award of one week’s gross pay capped at £290. Pursuant to Article 156(2) ERO, the tribunal considers that his conduct prior to his dismissal was such that it would be just and equitable to reduce the award by 75%. 

30.	In all the circumstances of the case, the tribunal orders the respondent to pay to the claimant £72.50.

Chairman:

Date and place of hearing: 22nd March 2007 at Belfast

Date decision recorded in register and issued to parties: