THE INDUSTRIAL TRIBUNALS

CASE REF:	619/08 

CLAIMANT:			Charles Donnelly

RESPONDENT:		Tracey Brothers Limited

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and that he be awarded a total of £8,140.00, in respect of unfair dismissal and notice pay.

Constitution of Tribunal:
Chairman:		Mr Palmer
Members:		Mr Jones
			Mr Nicholl

Appearances:
The claimant was represented by Mr Gormley, Barrister-at-Law, instructed by John Fahy & Co Solicitors.
The respondent was represented by Mr O’Keeffe, Barrister-at-Law, instructed by Murnaghan & Fee, Solicitors.

The Claimant’s Claims
1.	The claimant claimed in respect of unfair dismissal, notice pay and unpaid wages.

Unpaid Wages Claim

2.	This part of the claimant’s claim was withdrawn at the commencement of the hearing.

The Oral Evidence

3.	Evidence was given on behalf of the respondent by Mr Michael McKeown and Mr John Tracey, one of the respondent’s directors.  Mr Donnelly gave evidence on his own behalf.

Documents

4.	We were provided with a bundle of agreed documents.  Further documentations were introduced during the course of the hearing, without objection.

Submissions

5.	We received written and oral submissions, which we considered.

Facts

6.	The claimant was employed by the respondent from 8 November until 22 February 2008.  Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 (the Order of 1996) provides that an employee has the right not to be unfairly dismissed by his/her employer.  Article 140 (1) of the 1996 Order provides that Article 126 does not apply unless the employee has been employed for a period of not less than one year, ending with the effective date of termination of the contract of employment.  The claimant qualifies for the statutory right not to be unfairly dismissed.

7.	The respondent is engaged in the construction industry.  During times relevant to these proceedings it was engaged on two construction sites on the Sligo Road, Enniskillen.  The sites were almost opposite each other and were approximately 200 metres apart.  One site was known as “Waterways” and the other as “Water’s Edge”.  There was a tower crane employed on each site.

8.	The claimant was the tower crane driver at Waterways.  While not engaged in operating the crane he carried out general site duties.

9.	Mr Tracey had put arrangements in place for site huts to be moved from the respondent’s yard to a location at the Skills Centre, Enniskillen, where construction works were to begin.  The operation was to take place on 21 February 2008.

10.	Mr Paul Gallagher was temporarily operating the tower crane at Water’s Edge.  He was relief driver there: the regular operator was on holiday.  Mr Gallagher is qualified to operate mobile cranes.  As such he was to undertake the mobile crane work involved in moving the site huts to the Skills Centre.  Lorries had been arranged to transport the huts.  Mr Tracey phoned Mr McKeown, who was Project Manager of Waterways, to check whether the claimant could be released from Waterways to take over the driving of Mr Gallagher’s tower crane at Water’s Edge.  Mr McKeown agreed to release the claimant for the half-day that the site hut removal operation would require to complete.

11.	On Mr Tracey’s instructions Mr McKeown approached the claimant.  Mr McKeown asked the claimant to transfer to Water’s Edge for half a day.  We are satisfied that Mr McKeown gave the claimant the gist of the reason for the request.  The claimant refused to go.  He told Mr McKeown that he did not go from site to site.  He said that he was employed to drive the crane on one job and he was not going to “the other side”, meaning the Water’s Edge.  Mr McKeown was shocked.  He thought that the claimant’s refusal was totally out of character.  He described the claimant as a very good employee and that he had a good working relationship with him.  Mr McKeown accepted that the claimant was not going to go to Water’s Edge.  He did not have time to discuss the matter further with the claimant as he had to attend a meeting.

12.	Mr McKeown phoned Mr Tracey and gave him the news.  Mr Tracey told Mr McKeown to leave the matter with him and that he would try to sort it out.

13.	Mr Tracey phoned the claimant at about noon on 21 February 2008 and asked him to go over to Water’s Edge.  The claimant refused.

14.	The claimant told us that he did not agree to move for the half day to Water’s Edge because of an oral agreement that he had with Mr Tracey.  The agreement was entered into, according to the claimant, when he was being recruited as a tower crane driver by Mr Tracey.  The agreement was that he would not be required to move from site to site: he would only be required to go where his crane went.  Mr Tracey denied that such an agreement was entered into.  We do not think it likely that a potential employer would enter into this kind of agreement.  We find that, on balance, the alleged oral agreement with Mr Tracey, referred to by the claimant, was not entered into.

15.	We are satisfied that the only reason that the claimant refused to move to Water’s Edge was that he considered that he should not be moved from his crane to another one.

16.	We were provided with a copy of the Statement of the Main Terms and Conditions of Employment for Operatives (the Terms and Conditions), which applied to employees like the claimant.  The claimant told us that he had not received a copy of these.  Mr Tracey said that the respondent had a system in place under which a new employee would be provided with the Terms and Conditions when he/she first arrived on site and that these were contained in what was referred to as the “Blue Book”.  There was a form contained in the Blue Book to be completed by new employees giving particulars of address, national insurance number, date of birth and bank details etc.  This form was completed by the claimant.  We are satisfied, on balance, that the claimant received the Blue Book and, therefore, the Terms and Conditions.

17.	There are two provisions, relating to the claimant’s conduct, in the Terms and Conditions to which we were referred and which we have considered.  These provisions are as follows:

ONE	“Transfer
You may be required to transfer from one work place to another on the instruction of the company in accordance with the provisions of Working Rules of the Working Rules Agreement referred to above (paragraph 5(b)).

18.	The Working Rules are the Working Rules Agreement for the Building and Civil Engineering Industry (Northern Ireland).  We were not referred to these and, therefore, we do not know whether they contain anything relevant to the claimant’s proposed short transfer to Water’s Edge.

19.	     TWO “Job Title
	You are employed by this company as an operative but may be required to undertake other duties from time to time as required by management”.

20.	     The claimant did carry out other duties, other than as an operative, when he carried out general duties.  He was employed as an operative, namely, as a tower crane driver.  The job he was asked to do, on 2 occasions, was to move to the tower crane at Water’s Edge some two hundred meters away to operate it during Mr Gallagher’s absence.  The requests were reasonable ones which, we consider, were within the terms of the claimant’s contract.

21.	     We also consider that the claimant’s refusal was out of character.  Mr Tracey agreed with Mr McKeown’s assessment of the claimant, namely, that he was a very good employee.  Also, Mr Tracey agreed that the claimant had previously obliged the respondent by postponing his holidays on one occasion and on another cutting short his holiday to operate the tower crane when a site started one week early.  We are in no doubt that the claimant was a very good, capable and normally obliging employee.

22.	     Mr Tracey attended the Waterways site at around 5.00pm on Friday 22 February 2008.  He called the claimant to one side and told him that they were parting company, that the respondent would not be paying notice pay and that the reason for dismissal was the refusal of Mr Tracey’s request, on the previous day, to operate the Water’s Edge crane.  The claimant was dismissed at that time.

23.	     The Disciplinary Procedure is contained in an appendix of the Terms and Conditions.  The object of this contractual procedure is stated to be as follows;

“If a cause for disaffection has been pointed out to an employee he will be expected to show an improvement.  The object of the disciplinary procedure is to identify the authority of management to institute disciplinary action in cases of industrial misconduct and to ensure that the employee is protected against arbitrary, unjustified or inconsistent disciplinary action.”

24.	     By way of general guide three categories of industrial misconduct are set out.  There is, in order of graveness, General Misconduct, Major Misconduct and Gross Misconduct.  There are examples of the type of conduct falling within each category.  Failure to comply with a lawful working instruction is given as an example under Major Misconduct.

25.	     However, it is also provided as follows;

“The company reserves the right to determine the circumstances affecting particular breach of contract which might alter the category into which the following or any other types of misconduct might fall.”

26.	     We consider that this clause (which we shall refer to as the reservation clause) does not give the respondent carte blanche: we consider that the power must be exercised reasonably and with reasonable restraint.  At the hearing Mr Tracey referred us to the reservation clause, but prior to dismissing the claimant he did not consult the Terms and Conditions.  He said that when he dismissed the claimant that he had gross misconduct in mind.  We think that if Mr Tracey thought that the claimant was guilty of gross misconduct he would not have allowed one and a half working days to elapse before taking some action.  We think that a reasonable employer would not have considered, in the circumstances, that the claimant’s behaviour, in this instance, could be converted to gross misconduct by means of the reservation clause.  The respondent’s witness, Mr McKeown, a person with many years experience in the industry, did not consider that the claimant’s conduct amounted to gross misconduct.

27.	     Mr Tracey told us that if a reasonable instruction is given and disobeyed it can have repercussions for the respondent and the industry.  He said that managers are there to instruct employees.  If it was otherwise managers are not really managing.  He thought that it could come to a situation where employees would be issuing instructions to managers.  He said that when a reasonable instruction was issued to the employee (and we are satisfied the instruction given to the claimant was a reasonable one) the employee is expected to carry it out.  He went on to tell us that if he had not taken action, which in this case was dismissal without procedure, against the claimant he “would have no control over the place”.

28.	     Whilst it was a reasonable instruction given to the claimant, we think that Mr Tracey overreacted to the situation in which he was placed and his action was not that of a reasonable employer.

29.	     The Disciplinary Procedure in the Terms and Conditions provides as follows;

	“PROCEDURE WITH REGARD TO MAJOR MISCONDUCT

If major misconduct is committed the employee will be interviewed by his/her supervisor.  At this stage the employee will be issued with a FINAL WRITTEN WARNING and a copy will be placed on the employee’s file.  The employee will be given clear notice that a repeat of the offence will result in DISMISSAL.  If the misconduct is repeated after the Final Warning the employee will be dismissed by his/her supervisor.”, and

“PROCEDURE WITH REGARD TO CROSS MISCONDUCT

After a thorough investigation an employee who has been found to have committed gross misconduct will be summarily dismissed by his supervisor ie without notice or without wage-in-lieu of notice”.

30.	     There are, therefore, contractual procedures that are to be employed where misconduct is committed.  Major misconduct does not lead to dismissal.  Where gross misconduct is alleged a “thorough investigation” is to be instituted.

31.	    The respondent, in the dismissal under consideration, did not follow either its own procedures or the Dismissal and Disciplinary Procedures contained in Schedule 1 to the Employment (Northern Ireland) Order 2003 (the Order of 2003).

32.	    Article 130A(1) of the Order of 1996 provides;

“130A-(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if –

(a)	one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applied in relation to the dismissal;

(b)	the procedure has not been completed, and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements”.

33.	We find, in accordance with Article 130A (1) of the Order of 1996, that this dismissal was unfair.

Consequences of this Finding

34.	The basic award in this case, in normal circumstances, would be two weeks’ pay.  However, under the provisions contained in Article 154(1A) of the Order of 1996 the basic award is increased to four weeks’ pay.

35.	In the circumstances of this case Article 17(3) of the Order of 2003 applies and, therefore, we must increase the compensatory award by at least 10% and we may, if we consider it just and equitable in all the circumstances, increase that award by a further amount but not so as to make a total increase of more than 50%.

36.	We do not consider that an increase in the basic award would result in injustice to the respondent: nor do we consider that exceptional circumstances exist which would make an increase of the 10% in the compensatory award unjust or inequitable.

Polkey

37.	We have considered the chances of the claimant being dismissed had proper procedures been followed.  We consider that, taking account of all matters, the percentage chance of the claimant being dismissed is zero.  Any awards made will  not be reduced under this head.

The Claimant’s Contribution to his Dismissal

38.	Article 157(7) of the Order of 1996 provides as follows;

“If the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the [claimant], it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

39.	Taking account of all the circumstances we consider that it would be just and equitable to reduce this award by 25%.

40.	Article 156(2), insofar as relevant, provides;

“Where the 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 that amount accordingly.”

41.	We consider that the basic award should also be reduced by 25%.

42.	The claimant applied in writing for four jobs, he attended building sites seeking work, and he attended the job centre on a weekly basis and checked the situations vacant columns of newspapers.  The position that he was seeking was that of tower crane driver.  He was willing to travel.  However, he told us that a condition he would insist upon in new employment was that he would not be required to move from crane to crane. This would, in our view, have limited his prospects.  We think that initially it was reasonable for him to seek a crane driving job; but he restricted himself in the market by the condition he intended to impose, namely, not being required to move from crane to crane.

43.	We consider that it would have taken four weeks for the disciplinary procedures to be completed.  The claimant would, therefore, have been employed for that period.  We are satisfied that the Standard Procedure was the appropriate one to apply in this case.  The modified procedure would not have been appropriate.  Regulation 3(2) of the Employment (Northern Ireland) Order (Dispute Resolution) Regulation (Northern Ireland) 2004, insofar as relevant for the purposes of these proceedings, provides as follows;

“…the modified dismissal procedure applies in relation to a dismissal where-

(a)	the employer dismissed the employee by reason of his conduct without notice;
(b)	the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter;
(c)	the employer was entitled, in the circumstances, to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice; and
(d)	It was reasonable for the employer, in the circumstances, to dismiss the employee before enquiring into the circumstances in which the conduct took place,….”

44.	The dismissal did not occur at the time Mr Tracey became aware of the conduct, nor immediately thereafter.  He waited more than a working day from the time the claimant refused his request before dismissing him.  We do not think that the circumstances entitled the respondent to dismiss without notice or payment in lieu of notice.  We do not think that it was reasonable for the dismissal to have occurred before enquiring into the circumstances.

Compensatory Award

45.	For the four weeks it would have taken to complete the disciplinary procedure we award the claimant a total of £1,500, being 4 weeks @ £375 per week.
46.	This takes us up to 21 March 2008.  There has been a downturn in the construction industry.  We consider that the claimant would have realised within a further 2 weeks that positions, for tower crane drivers, in the building industry were severely limited and, therefore, after that time he should have sought other employment (which he did not).  For the two weeks we award the claimant £750.

47.	The claimant carried out ground duties when not operating his crane.  We consider that he would have found a position, other than as a crane driver, after a further 4 weeks.  In respect of this period we award the claimant 4 weeks at £375, which is £1,500.

48.	We consider that the position the claimant was likely to obtain after the 4 weeks referred to would be in the low pay category.  We consider that the pay would be £6.00 per hour.  His gross wage would have been £234 per week for a 39 hour week and his net pay would have been approximately £200.00.  If he had remained in the respondent’s employment he would have netted £375 per week.  The loss per week would be £175.  We consider that, with the downturn in the industry, that it is more than likely that the claimant would have lost his job with the respondent in mid August, namely, 15 August 2008.

49.	We, therefore, award him £175 per week for the 15 week period from 2 May 2008 until mid August 2008, which is £2,625.

50.	We award the claimant £250 in respect of loss of statutory rights.

51.	The total amount awarded in respect of the compensatory award, before any deductions or enhancement, is £6625.

52.	The reduction for contributory fault is, as stated 25%.  This reduces the award by £1656.00 to £4,969.00.

53.	We consider that the failure to follow the statutory procedures was a serious and blatant breach.  We increase the award by 30%.  The final compensatory award is £6,460.

Basic Award

54.	The minimum basic award in this instance is 4 weeks pay.  This amounts to £1,240.  We reduce this by the same percentage as the compensatory award, namely, by 25%.  The basic award is reduced by £310.00 to £930.

Notice Pay

55.	    Under Article 118 of the Order of 1996 the claimant was entitled to 2 weeks notice,
          which he did not receive.  We award him 2 weeks net pay, which amounts
          to £750.00.

Total Award

The total award amounts to £8,140.

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

The claimant received Jobseeker’s Allowance, a benefit to which the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 (the Regulations) apply.

In accordance with our duty under the Regulations we set out the required particulars below.

(a)	Monetary Award					£8,140.00

(b)	Prescribed Element					£4,781.25

(c) 	Prescribed period			23 February 2008 to 15 August 2008.

Excess of (a) and (b)					£3358.75

The attached Recoupment Notice Forms part of this decision.

Chairman:

Date and place of hearing:	29 August 2008 and 3 October 2008 at Strabane and
                                                     10 October, Belfast.	

Date decision recorded in register and issued to parties: