THE INDUSTRIAL TRIBUNALS

CASE REF:   1349/08

CLAIMANT:	John Goodfellow                     		

RESPONDENT:	Fresh Fields at Warrenpoint

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The respondent is to pay to the claimant compensation of £11,575.00. 

Constitution of Tribunal:

Chairman: 		Mrs Watson

Members:		Mrs Doran
			Mr Hughes

Appearances:

The claimant was represented by Mr Michael Landers of the Irish Municipal Public and Civil Trade Union.

The respondent company was represented by Mrs Lisa Hall, Director

Issue for determination

1.	For the claimant, Mr Landers informed the tribunal that the claimant alleged that he had been unfairly dismissed from his employment by the respondent company as a Master Butcher.  The dismissal was alleged to have been in breach of the statutory dispute resolution procedures set out in the Employment (Northern Ireland) Order 2003.

2.	For the respondent, Mrs Hall admitted that the claimant had been dismissed but stated that the reason for the dismissal was gross misconduct.

3.	The issue for the determination by the tribunal was whether the dismissal was automatically unfair for being carried out in breach of the relevant procedures and if so, the appropriate remedy. 

Findings of relevant facts

4.	The respondent company, Fresh Fields, was established in late 2006 by Marcus Hall the Director.  Mr Hall appointed a General Manager, Neil Davey, who was responsible for the day-to-day operation of the business which consisted of a butchery, bakery/kitchen and delicatessen.  The claimant took up employment with the respondent on 25 September 2006 as a Master Butcher to set up and run the butchery section which was to be the largest part of the shop.  His salary was £509 per week, or almost £26,500 plus annual bonus. 

5.	The claimant had been a Master Butcher and had won accolades for his skills including Northern Ireland Master Butcher of the Year in 1993, 1994 and 1995.  The latter year he also won the All Ireland Award.  At that time he was the manager of the Good Food Shop in Newry.  After that, he ran his own butcher shop for some time in Rostrevor and later his own sandwich shop in Newry. 

6.	At his interview, the claimant was asked to account for gaps in his employment history when he had been ill.  While the claimant informed the tribunal that he had given a full account of his illness, the tribunal preferred the evidence of Mr Hall that the claimant had told them that he had suffered a serious family trauma and had been advised to take time off from work but that he was then fully recovered with little likelihood of recurrence.  In fact, the claimant had sought medical assistance on 17 May 2004 when he was referred to Daisy Hill Psychiatric Clinic.  On medical advice, he sold his butcher’s shop to a family member and attended a 13 week therapy of Grief Counselling.  He also attended the Psychiatric Clinic and was taking anti-depressant medication for at least two years.  The claimant had suffered a recurrence of his illness after his dismissal but had not told his representative, Mr Landers about this until shortly before the hearing of this case.  The tribunal were of the view that it was unlikely therefore that the claimant would have given these details to a prospective employer and so preferred the respondent’s account.  

7.	Mr Hall also gave evidence that the claimant had worked very hard and had successfully recruited his own staff and established the butchery department.  He said that the claimant was very good at his job and always had a very good display and established good customer relations. 

8.	In about November 2007, Neil Davey was dismissed for dishonest misuse of the company credit card.  The business was re-organised and the claimant at that time took on additional managerial duties in the delicatessen.  Mrs Lisa Hall took over the day-to-day running of the business even though she had no previous business management knowledge or experience.  Mr Hall was there from time to time but his main role was with the livestock with which he supplied the shop.  Mrs Hall soon discovered that little or no proper record keeping or administration work had been done by Mr Davey and that the business was not as well managed or successful as they had been led to believe.   

9.	None of the employees had a written contract of employment or terms and conditions or job description.  Mrs Hall engaged a business services company who provided her with a handbook for employees containing all the relevant policies and procedures.  Theresa Magorrian was taken on as Office Manager and her contract was used as a template for drafts which were given to the other employees.  Mrs Hall also drafted job descriptions from information on the internet.  The managers were asked at the regular management meetings to work with Mrs Hall to finalise and agree the documentation for themselves and their staff.  Despite several requests and deadlines, the management meeting minutes indicate that the claimant did not co-operate fully and failed to finalise his job description or contract of employment. 

10.	At the same time, David Brighton, a consultant was engaged to examine how the business was operating and give advice and guidance for improvement.  He identified a major problem related to costs and price control.  It appeared that Mr Davey had used a local branch of a national supermarket as a benchmark and fixed the prices in Fresh Fields to match, regardless of the original cost price.  There also did not appear to be any evidence of negotiating costs with suppliers.  The tribunal heard evidence from Mr Damien Trodden, a retired Merchant Navy cook who was employed by the respondent as a buyer.  He went to markets and bought high quality and expensive fruits and vegetables which were often wasted because of poor storage and/or marketing.  

11.	In the butchery department, Mr Brighton questioned whether there was a need for the four butchers employed there and noted that the claimant was not aware of weekly sales, gross profit and costs.  He also expressed concerns about failure to properly record wastage, internal transfers and reductions, principally in the butchery department but in other sections as well. 

12.	Mrs Hall met with the managers and discussed the recommendations that Mr Brighton had made.  The tribunal was provided with documentation from regular management meetings which indicated that much time and effort was spent addressing the deficiencies of the previous General Manager.  Mrs Magorrian was appointed on 3 December 2007 and within a relatively short time she was given responsibility for ordering stock for all departments.  A new system was introduced which allowed better control over pricing and stock control through the scales and the tills.  Mrs Magorrian required information from each department to programme the scales and update prices.  The tribunal was told that the claimant did not provide Mrs Magorrian with all the information she required and she sometimes had to ask another one of the butchers or make informed guesses of prices which would have affected the accuracy of turnover and sales figures.  There were also many references to waste reports either being incomplete or not provided.  The tribunal was satisfied that the claimant, the most senior employee of the business, was not being as helpful as his employers needed at such a difficult time to overcome the problems left by Mr Davey.  When put to him in cross-examination, the claimant did not accept that the minutes recorded or illustrated any deficiencies in his performance of his management duties.  The tribunal found this view was not reasonable in the circumstances. 

13.	In early April 2008, the claimant approached Mrs Magorrian and asked her about his annual bonus.  She advised him to ask Mrs Hall which he did.  The claimant identified this incident as being the beginning of his problems with his employers.  It was his belief that the respondent was annoyed at him for asking for the bonus and said that Mrs Hall did not speak to him for some time after this and that the atmosphere changed and his working life became more difficult.  The tribunal accepted that Mr Hall especially was not happy with the request but found, on the balance of probabilities, that the request for a bonus was simply another difficulty for the respondent in relation to the claimant.  In addition, Mrs Magorrian had been told by other employees that Mr Davey had made promises of time off or extra money and took the decision to issue a Memo to staff on 17 April to say that promises made to staff by Mr Davey would only be honoured if there was written confirmation. 

14.	The claimant denied that he had told Mrs Hall that he had documentation at home to confirm the basis on which his bonus of £1,050 had been paid in 2007 but there is a reference to this in one of the minutes.  The tribunal found that Mr Hall wanted to link the calculation of the bonus to profit but was becoming increasingly frustrated by the claimant’s failure, as he saw it, to co-operate with efforts to obtain an accurate profit figure.

15.	On 28 April 2008, Mr and Mrs Hall met with the claimant.  Mr Hall noted that they discussed the following:-

Waste reports that had first been requested in January were to be completed and that the cost price/ value of the waste was needed;

Mrs Magorrian was responsible for all butchery ordering since January;

‘blocking’ information for pigs that was requested to be given to Mrs Magorrian in January had still not been completed;

the claimant was to enrol in a Food Hygiene Certificate course as soon as possible;

all meat was to be labelled to indicate source as requested.

The claimant was to supply documentation concerning his bonus agreement (see above)

16.	These items were reviewed with the claimant by Mr and Mrs Hall at a further meeting on 15 May.  Most had still to be dealt with fully.  A full stocktaking of the department was ordered to be carried out before 6 June so that effective tracking could be managed.  A formula for calculating future bonus payment was detailed and the bonus for 2008 was being paid as a ‘show of goodwill’.  This does not accord with the version of the matter given by the claimant who said the envelope containing the bonus cheque was thrown on the desk and he was told he was lucky that they were being decent with him.

17.	The Halls met with the claimant again on 3 June.  In the note of this meeting, the claimant’s lack of communication was said to be ‘not acceptable’ and examples where this had impacted poorly on other areas was noted.  Waste report requirements were still not being met and this was described as ‘unacceptable’.  New product lines to boost sales were suggested.  

18.	The report of the next meeting on 13 June shows a further decline in the working relationship.  It was noted that prices charged to at least one restaurant had not changed in six months; departmental waste had not been recorded since 28 April; staff time schedules had not been provided to the office; not enough progress had been made on the stock take ordered earlier and no weekly tastings taking place as had been ordered.  While it is not stated in the notes, the claimant accepted that he was told at this meeting that he had two weeks to deal with all issues required or he would be dismissed.  The claimant was understandably upset when he left the meeting.

19.	The claimant returned to the butchery department after the meeting on the afternoon of Friday 13 June 2008.  He said he showed the list of things to be done to his deputy, Martin, and told him that they would have to work to get the things done as the Halls were ‘on his case’.  He denied that he had spoken to anyone else about the outcome of the meeting. 

20.	Mrs Magorrian however gave evidence that she was programming the scales in butchery on his return and was standing beside the claimant when he became agitated and in a loud voice said:-

	“Who does Marcus Hall think he is to tell me how to run a butcher’s?  What does he know about butchery or running a business?”  

Mrs Magorrian said she was upset and shocked and advised him that he should not say anything more.  She was not facing the shop floor but was aware that there were staff and customers still there.  She left shortly afterwards but told the tribunal she thought about what the claimant had said over the weekend and was very upset.  The tribunal noted that Mrs Magorrian was crying and upset when giving her evidence.  When she returned to work on Monday morning 16 June, she told Mrs Hall what had happened.  Mrs Magorrian expected that the claimant would be disciplined and was surprised that he was later dismissed but she still believed that she had done the right thing.

21.	Damien Trodden also gave evidence to the tribunal that he had made a similar derogatory remark about Mr Hall’s business acumen early on the morning of 13 June (which was actually the day he left his employment) and Mrs Magorrian had heard this.  She told the tribunal that Mr Trodden was prone to similar outbursts that she ignored as he often had a ‘rant and rave’ but he was not a senior manager while the claimant was and Mr Trodden had made his comment ‘without malice’. 

22.	Mr Hall gave evidence that he had been told by his wife of the claimant’s remarks on Monday evening.  They discussed the situation and what should happen.  The following afternoon, on Tuesday 17 June 2008, Mr Hall told the claimant he wanted to speak to him.  They went to a store room where Mr Hall sacked the claimant.  When asked why, Mr Hall told the claimant it was because of the remark he had made on the Friday afternoon which had been heard by two witnesses whom he refused to identify.  The claimant left his keys in the office and went home.

23.	On Wednesday the claimant took advice and was told he should contact Mr Hall and clarify his position.  They spoke on the phone in late afternoon and the claimant asked for his job back.  Mr Hall explained to the claimant that he had thought long and hard before he made the decision to dismiss the claimant and he was not going to change his mind.  Mr Hall in his evidence to the tribunal then went on to say that he had spoken to his solicitor that morning and told her what had happened.  He said the solicitor had advised him that he had not done things properly and that he had to put the reason for the dismissal in writing and inform the claimant that he had a right of appeal.  When asked by the claimant if there was any point in appealing, Mr Hall said he told the claimant that he had given it a lot of thought before he fired him and he was not likely to ‘unfire’ him, but said he had a right of appeal.

24.	The claimant arranged to call on the following Friday to collect his wages.  He met Mrs Hall who asked him if he wanted to talk to her.  Her evidence was that she had expected him to request an appeal to her but the claimant told her that there did not seem to be any point.  The claimant collected his things and left.

25.	On behalf of the claimant, Mr Landers wrote to the respondent on 9 July 2008 and informed them that he regarded the dismissal as unfair and asked for the reason for the dismissal.  He also asked if there was any appeal against the decision and stated his intention to seek redress at an Industrial Tribunal.  Mrs Hall had taken their children to her home in the United States for the summer so the letter was not answered until 2 September 2008 when their solicitor wrote and said that the claimant had been dismissed for gross misconduct.  The decision to dismiss was claimed to be fair and proportionate.  The solicitor provided the detail of the remark which was stated to have been ‘an unacceptable outburst in front of staff and customers’.  In addition, the letter referred to the respondent’s concerns in relation to the claimant’s conduct over a period of time, the meetings that had taken place and the ‘formal warning’ that had been given to him on 13 June 2008.  His conduct and lack of consistent work and attitude was said to have been having a detrimental impact on other staff. 

26.	The Staff Handbook was included with the letter and Mr Landers was referred to the Disciplinary Procedures where examples of gross misconduct were given.  Paragraphs E (i), [taking part in activities which could result in adverse publicity or which cause us to loose faith in your integrity], and E (n), [gross insubordination and/or continuing refusal to carry out legitimate instructions],were referred to in particular. 

27.	The letter also said that the claimant had been aware at all times of the reason for his dismissal and said he had been offered an appeal which he had declined.  An offer of a further appeal was made. 

28.	The claimant’s originating claim was received by the Tribunal Office on 15 September 2008. 

Other relevant matters

29.	At this stage of the decision, the tribunal wish to record other matters relevant to this case.  Towards the end of the first day of hearing, the claimant was giving evidence about the aftermath of his dismissal.  He gave evidence of a return of his depressive illness.  He was referred to the Home Treatment Response Unit from Daisy Hill Mental Health Department.  He was visited daily at home for three weeks and prescribed antidepressant medication.  He was discharged from Home Treatment on 6 August 2008 but is still attending the Psychiatric Unit and taking medication. 

30.	Mr Landers informed the tribunal that he had been unaware of the severity of the claimant’s condition until shortly before the hearing.  The tribunal adjourned for a day to allow time for Mr Landers to try and obtain a Psychiatric Report but he was only able to obtain a report from the claimant’s General Practitioner who enclosed copies of reports she had received from Daisy Hill Mental Health Department.  The tribunal was also taking into consideration that the respondents, who were not legally represented at the hearing, should be given an opportunity to consult their solicitor after receipt of the report.   

31.	The claimant had given evidence that the respondent had been aware of his medical history when he took up his appointment and this could have been relevant to the tribunal’s consideration of the reasonableness of the respondent’s actions and/or whether the claimant’s mental health had been a factor in his conduct or his ability to perform his duties, and whether it was likely to impact on his ability to secure future employment. 

32.	The medical documentation provided was very unsatisfactory not least because every report in the documentation contained material inaccuracies and the tribunal was not really assisted in its task by the content.  An exception was that the claimant’s GP had stated that due to his illness, the claimant had been unable to recognise the importance of disclosing his medical condition earlier.  It was also apparent that Psychiatric staff were of the view that returning to work could be beneficial to the claimant’s condition.  

33.	The tribunal was also aware of the fact that the versions of events leading to the dismissal given, in evidence by both sides were quite different.  Bearing in mind that the respondent’s version was corroborated to an extent by documentation and the witness evidence of Mrs Magorrian who was no longer in their employ, the tribunal found that the respondent’s version was more likely to be correct.  This is not a reflection on the claimant’s veracity but merely taking into account the potential effect of his illness on his recollection and perception of the events.

34.	The tribunal also took into account that in giving his evidence, Mr Hall made admissions which were unfavourable to the respondent’s defence and was of the view that he was being truthful in his evidence. 

Relevant law and Tribunal’s determination

35.	The Employment Rights (Northern Ireland) Order 1996 provides at Article 130A as follows:-

	“(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 proceedings procedures) applies in relation to this 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.

(2)	Subject to paragraph (1) failure by an employee to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making an employer’s actions unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3)	For the purpose of this Article, any question as to the application of a procedure as set out at Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to Regulations under Article 17 of that Order. 

36.	The Employment (Northern Ireland) Order 2003 introduced the Statutory Dispute Resolution (SDR) procedures.  Before disciplining or dismissing an employee, an employer is required to follow these procedures which essentially require that an employee must be notified in writing of the grounds on which the employer is contemplating the disciplinary action or dismissed.  The employee is to be invited to a meeting with the employer at which the employee, who has a right to be accompanied to the meeting, is given an opportunity to discuss the matter.  After the meeting, the employer must inform the employee of his decision and inform him of his right to appeal the decision if he is not satisfied with it.   

37.	The tribunal find that the requirements of the Statutory Dispute Resolution procedures set out in Schedule 1 of the Employment (Northern Ireland) Order 2003 were not met in this case.  The claimant was not told in writing by the respondent that disciplinary action was being contemplated or taken or the grounds for doing so.  Nor was he informed that he could be accompanied at the meetings.  The tribunal also find that the meetings that were held did not comply with the requirements of the SDR procedures as the claimant was not in any position to respond to the allegations.  While Mr Hall informed the claimant of his right to an appeal, the manner in which he did so was unreasonable and not likely to result in a different outcome. 

38.	The respondent claimed that the dismissal was a summary dismissal for gross misconduct as provided for in the Disciplinary Procedures contained in the handbook.  Before the introduction of the SDR procedures, this could have been a potential defence to an unfair dismissal claim but the 2003 Order also amended the Employment Rights (Northern Ireland) Order 1996 by inserting the new Article 130A which is set out above.

39.	As the tribunal have found that the respondent employer did not comply with the statutory procedures, it finds that the claimant was unfairly dismissed.  Any question as to the failure to comply with the requirements of such a procedure, is required under Article 130A (3) to be determined by reference to Article 17 of the 2003 Order which allows for adjustments of awards.  Article 17(3)(c) states that where the     non-completion was attributable to the failure by the employer to comply, the tribunal shall, subject to paragraph (4), increase the award to the employee by 10% and may, if it is just and equitable in all the circumstances, increase the award by up to 50%.

40.	Paragraph (4) provides that:-

“The duty under paragraph (2) or (3) to make a reduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”

41.	The respondent company showed total disregard for the SDR procedures.  There was no evidence that it considered its obligations imposed by the statute even though the solicitor advised Mr Hall to do so.  Indeed, the respondent did not even comply with its own disciplinary procedures.  Paragraph 2 of the introduction to its own procedures, sets out that the aim is to ‘emphasise and encourage improvement in the conduct of individuals, where they are failing to meet the required standards, and not be seen as a means of punishment.’  The tribunal is aware that Mrs Hall in particular made great efforts to assist the claimant to meet the required standards, but to no avail.  The claimant failed to appreciate the depth of the respondent’s dissatisfaction with his lack of performance of his managerial duties.  This may have arisen from his previous and subsequent depressive disorder.  The tribunal was unable to make any finding on this point as the medical evidence provided was not helpful in that regard.  After careful consideration of the findings of fact set out above, the tribunal considers it just and equitable in all the circumstances of this case, to increase the claimant’s award by 25%.

42.	However, the respondent claimed that the dismissal was fair and proportionate in that the gross misconduct was not only related to the outburst on 13 June 2008, but also related to the claimant’s poor work performance during the previous six months for which he had been warned, and which was said to have been having a detrimental effect on other members of their workforce.  In the response to the originating claim form, the respondent claimed that the claimant had contributed to his dismissal to the extent of 100%. 

43.	Article 157(6) (2) of the 1996 Order states as follows:-

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

44.	In his evidence, Mr Hall described the 13 June outburst as being ‘the straw that broke the camel’s back’.  If this had been the only incident on which the decision to dismiss had been grounded, the tribunal would have been of the view that it was unreasonable.  The tribunal took into account that Mrs and Mr Hall, in very difficult circumstances after their problems left by Mr Davey, did their best to put things right in their business as advised by David Brighton, particularly with regard to costs and pricing.  These efforts were not made easier by the claimant and the tribunal have concluded that it is just and equitable in all the circumstances of this case to reduce the compensatory award by 25%. 

45.	The claimant also sought compensation for the respondent’s failure to supply a statement of terms and conditions of employment.  The tribunal finds that as soon as the respondent found that staff had not been provided with their terms and conditions they engaged the services of a business services provider and provided each employee with Employee handbooks and draft contracts which contained the main terms and conditions.  The claimant denied that he had received this but the tribunal is satisfied by the evidence of Mrs Magorrian that she provided these to all employees and Mrs Hall who found the claimant’s copy among items he left after his dismissal. 

46. Compensation

	Basic award

4 weeks pay @ £330 per week						£1,320.00

Compensatory award

Weekly pay before dismissal (Including bonus)		£412.00

Weekly Invalidity Benefit					£102.00

Weekly loss							£310.00  

From 17 June 2008 until 31 January 2009 
when business closed is 32 weeks - £310.00 x 32			£9,920.00

Reduction for contributory fault @ 25%					£2,480.00

£7,740.00
Plus										£1,320.00

£9,060.00

Increase for failure to follow SDR @ 25 %				£  2,265.00

										£11,325.00

Loss of Statutory Rights							£     250.00

Total award									£11,575.00

47.	On behalf of the claimant, Mr Landers applied for costs against the respondent.  The claimant was not legally represented, and in any event, the tribunal do not consider that the respondent, who believed it had a defence to the claim, acted unreasonably as they believed, albeit wrongly, that they had a defence to the claim.  The application for costs is refused.

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

Chairman:

Date and place of hearing:	9 and 11 February 2009;
23-24 March 2009
Belfast

Date decision recorded in register and issued to parties: