THE INDUSTRIAL TRIBUNALS

CASE REF:  01410/08

CLAIMANT:			Ian Danks

RESPONDENT:		Woodside Haulage Limited

DECISION
The unanimous decision of the tribunal is that the claimant’s claims of wrongful dismissal and breach of contract are dismissed.

Constitution of Tribunal:
Chairman:		Mr Wimpress
Members: 		Mr Irwin 
			Mr Lowden

Appearances:
The claimant was unrepresented and appeared on his own behalf.
The respondent was represented by Mr Potter, Barrister-at-Law, instructed by Carson McDowell, Solicitors.
The Claim and the Response

1.	The claimant brought claims of unfair dismissal, wrongful dismissal and breach of contract arising from his dismissal from his employment as a lorry driver with the respondent.  The unfair dismissal claim was rejected by the tribunal at the pre-acceptance stage on the basis that the claimant did not have twelve months continuous employment with the respondent being employed from 5 November 2007 to 24 September 2008.  The claims of wrongful dismissal and breach of contract were accepted.  The respondent in a detailed response denied that it had breached the claimant’s contract of employment or wrongfully dismissed him.

Sources of Evidence

2.	The tribunal received a bundle of documents prepared by the respondent together with extracts from the claimant’s unsigned contract of employment and heard oral evidence from the claimant and Mr Glen Alderdice.

The Facts

3.	The circumstances that gave rise to the proceedings were that on 15 August 2008 the claimant’s lorry was involved in a serious accident at a railway bridge at Northway in Portadown causing £22,000 damage to the bridge and £2,500 damage to the trailer load.  The accident also caused the closure of the railway line for some time.  On 19 August 2008 the respondent wrote to the claimant and advised him that it was alleged that he had failed to secure the load to the trailer which caused the vehicle to overturn and that if proven this would amount to gross misconduct.  This was not the first time that the claimant had been disciplined by the respondent.  In early 2008 the claimant received a written warning in respect of a previous accident which was still live.  

4.	A disciplinary hearing took place on 20 August 2008 and Mr Glen Alderdice found the claimant guilty of the offence and determined that the claimant should be summarily dismissed as it amounted to gross misconduct.  In his evidence to the tribunal Mr Alderdice maintained that the incident on 15 August was sufficient to warrant the claimant’s dismissal for gross misconduct on its own and that he was not influenced by the previous written warning. The claimant appealed on the basis that the police investigation had not been completed and that the load was in fact secured.  The claimant was suspended without pay pending the hearing of the appeal.  The appeal was heard by Mr Mark Woodside on 24 September 2008 who upheld the decision to summarily dismiss the claimant for gross misconduct. 

5.	Clause 20(a) of the unsigned contract of employment produced by the respondent states that employees with more than 6 months service would be entitled to 2 weeks notice.  Clause 20(d) reserved the respondent’s right to dismiss an employee summarily without notice or pay in lieu of notice in cases of gross misconduct. We were not however shown a list of offences that could lead to a finding of gross misconduct.

6.	The claimant candidly accepts that he does not have the requisite 12 months employment with the respondent to found a claim of unfair dismissal  and we are also satisfied that the tribunal does not have jurisdiction to entertain this aspect of the claimant’s claim.  The claims of wrongful dismissal and breach of contract remain.

The Law

  7.	Article 3 of the Industrial Tribunals (Extension of Jurisdiction) Northern Ireland 
Order 1994 provides that the tribunal has jurisdiction to hear a claim for   breach of contract for sums which arise or are outstanding on the termination of an employee’s employment.  

  8.	The scope of a claim for wrongful dismissal was considered by the House of  Lords in Johnson v Unisys Ltd [2001] ICR 480 where Lord Hoffman cited with approval  the observations  of McLachlin J of the Supreme Court of Canada in Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1, 39 as follows:

	"The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal.… A 'wrongful dismissal' action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given."

This topic was also considered by the Employment Appeal Tribunal in Wise Group v Mitchell [2001] ICR 480 which held that damages for wrongful dismissal were limited to sums that would have been payable to the employee had the employment been lawfully terminated under the contract of employment, since an employer was entitled to dismiss on contractual notice at common law for whatever reason.

9.	In addition to the contractual notice obligations, the claimant has a statutory right to notice.  Article 118 of the Employment Rights (NI) Order 1996 deals with notice and the relevant portions read as follows:

“The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more 

(a)  is not less than one week's notice if his period of continuous employment is less than two years,

(b)  is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and

(c)  is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.

10.      Accordingly, the claimant, having been employed for more than one month, 
but less than two years would ordinarily be entitled to a minimum of one week’s notice subject to the respondent’s right to dismiss without notice under Article 118(6) on the basis of conduct. It is clear from the contract of employment produced by the respondent and it was accepted by the respondent that the claimant would have received two weeks notice had he not been dismissed for gross misconduct.  Therefore if the claimant persuades us that the dismissal without notice was wrongful and constituted a breach of his contract he would be entitled to two weeks pay and gains nothing in addition by relying on his statutory rights which are likewise limited in gross misconduct situations.

Submissions

 11.	Mr Potter, on behalf of the respondent, submitted that the respondent was entitled to dismiss the claimant summarily and sought to rely on the contract with the claimant which made provision at paragraph 20 (d) for summary dismissal without notice pay in cases of gross misconduct.  Mr Potter further submitted that the claimant was not entitled to make an unfair dismissal case under the guise of a wrongful dismissal claim.  The claimant sought to dispute that the respondent was entitled to dismiss him summarily on this basis because he had not signed and returned a fresh contract recently supplied to him.  

	Conclusions

12.	The short answer to the claimant’s contention that he was not bound by the unsigned or returned contract is that in the absence of a valid contract his breach of contract claim would not get off the ground. Furthermore, the claimant did not seek to argue that his previous contract did not make provision for summary dismissal in similar circumstances.  In addition, the claimant was warned in correspondence of the danger of a finding of gross misconduct leading to summary dismissal. The claimant retains his right to statutory notice under Article 118(1) but as with contractual notice it is not unqualified and can be dispensed with in cases of misconduct.  

 13.	It is clear that the claimant would like us to look behind the finding of gross misconduct and examine whether his conduct warranted summary dismissal.   It is not open to us to do so as this would be the exercise that the tribunal would have to perform in the unfair dismissal claim which the claimant is unable to pursue due to his lack of service.  In this regard we are mindful of the observations of Lord Hoffman in Johnson v Unisys Ltd and the Employment Appeal Tribunal in Wise Group v Mitchell.  This does not mean however that the tribunal is bound to accept that the claimant was lawfully dismissed and therefore it is necessary to examine carefully the correspondence and evidence proffered on behalf of the respondent in order to determine whether the respondent was entitled to summarily dismiss the claimant for gross misconduct.

14.	Having carefully considered the written evidence including the claimant’s unsigned contract of employment and the oral evidence of Mr Alderdice we have come to the conclusion that the respondent was entitled to summarily dismiss the claimant without notice or pay in lieu of notice.  We are satisfied that the claimant’s contract of employment made proper provision for summary dismissal for gross misconduct. As is evidenced by the correspondence the respondent clearly believed that the claimant was guilty of gross misconduct and on the basis of Mr Alderdice’s evidence we are satisfied that this belief was honest and genuine.  Although we were not shown any list of offences that could lead to a finding of gross misconduct such lists merely provide examples of such behaviour and can never be regarded as exhaustive.  Mr Alderdice’s evidence on this point was clear and we are satisfied that the finding that the claimant was seriously culpable in causing the accident at the railway bridge is capable of amounting to gross misconduct.  As this is not an unfair dismissal case we are not called upon to decide whether the decision to summarily dismiss the claimant was within the range of reasonable responses.  We note in passing however that while the punishment might be considered harsh it would be difficult for any tribunal to decide that it was unreasonable having regard to all the circumstances.  The same considerations come into play in relation to statutory notice and for the same reasons our decision is that the claimant cannot succeed on this basis either. 

	Costs

15.     In late October 2008 the claimant wrote to the tribunal office and advised of a change of address.  He did not inform the respondent of his change of address.  On 19 February 2009, the respondent’s solicitor sent two letters to the claimant at his previous address.  In the first letter the solicitor sought discovery and served a Notice for Additional Information.  In the second letter the solicitor warned that the respondent considered that the claimant’s claim was vexatious and that his ongoing conduct of it was misconceived and that if the claim failed the respondent would seek costs.

16.    The respondent followed through at hearing with an application for costs on the 
          basis set out in the correspondence.  Rule 40 of the Industrial Tribunals 
         (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 
          governs awards of costs in these circumstances and provides as follows:

“40.(1) A tribunal or chairman may make a costs order when on the application of a party it or he has postponed the day or time fixed for or adjourned a hearing under rule 26 or pre-hearing review. The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.

(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.

(4) A tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction. 

17.	We are mindful that costs should not be awarded as a matter of course in industrial tribunal proceedings and are payable in exceptional circumstances as provided for in Regulation 40(3).  We do not regard this as an appropriate case in which to award costs.  For reasons which cannot be laid at the claimant’s door he did not receive the costs warning letter and although his case was of limited value it was not necessarily hopeless and in fact raised interesting legal issues as to the scope for bringing wrongful dismissal proceedings before an industrial tribunal.  The application for costs is therefore refused.

Chairman:

Date and place of hearing:	10 March 2009, Belfast.

Date decision recorded in register and issued to parties: