1412_08
McLaughlin v Touchwood Manufacturing Compan... [2009] NIIT 1412_08IT (28 May 2009)
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THE
INDUSTRIAL TRIBUNALS
CASE REF: 1412/08
CLAIMANT: Gerard McLaughlin
RESPONDENT: Touchwood Manufacturing
Company Limited
DECISION
The
unanimous decision of the tribunal is that the claimant was not
dismissed by the respondent and consequently was not unfairly
dismissed.
Constitution
of Tribunal:
Chairman: Mr
Cross
Members: Mr
MacLaughlin
Mr
Heaney
Appearances:
The
claimant was represented by Ms Fee, Barrister-at-Law, instructed by
Brolly Jameson, Solicitors.
The respondent was represented by Ms
Best, Barrister-at-Law, instructed by Copeland McCaffrey, Solicitors.
Evidence
1. The tribunal heard evidence from
the claimant and Mr McIlhatton for the claimant and from Mr Porter,
Mr Fikner, Mr McBride and Mr Convery on behalf of the respondent.
Findings of fact
2. The claimant who was born on 28
December 1962, commenced employment with the respondent on 9 December
2001.
3. On
5 March 2008 the claimant was injured in a road traffic accident on
his way to work. On his return to work on 1 July 2008, a discussion
occurred between the claimant and Mr McBride, one of the directors of
the respondent company, which resulted in the claimant leaving the
respondent’s factory.
4. There
were two accounts of what happened on that morning and these
conflicting accounts are the basis of the dispute between the
parties. There were also disputes as to many of the events leading
up to the events on 1 July 2008, these are set out below; with the
tribunal’s findings of fact in so far as such findings were
made.
5. Some
time after the claimant’s accident, whilst he was still
registered by his doctor as unfit to work, the claimant was visited
by an old friend and previous employer, Mr McIlhatton, who was
the owner of a business called Mountfield Kitchens. This company
made bespoke kitchens, whilst the respondent was a producer of mass
produced kitchens which were of a cheaper type. Mr McIlhatton had
called to see his friend who was injured and during the discussion he
suggested that if the claimant had any need to do any work on his
house, whilst still unable to recommence work, he could make use of
the facilities at Mountfield. The claimant, who had various jobs in
hand in his house took up this offer and visited Mountfield many
times before he went back to work at the respondent.
6. The
respondent had, in an effort to help the claimant to get back to work
and because the respondent had a particular need for his skills in a
particular area, asked the claimant to come back to work for three
days at the end of April 2008. This the claimant did and at the end
of the three days he had asked to be paid in cash so that he could
continue on benefit. Mr Mc Bride had refused this request. This
annoyed the claimant, even though the other director of the
respondent company, Mr Convery, tried to explain the reason to him.
Other than that few days in April, the claimant did not return to
work for the respondent until his return in July.
7. This
refusal to pay cash to the claimant is surprising, as the claimant
told the tribunal that he was paid by the respondent, partly by
cheque and partly in cash, when he was working prior to the accident.
This was denied by the respondent. This was another of the disputed
facts that had to be considered by the tribunal. In this instance
the tribunal found as a fact that the claimant’s account of the
way his wages were paid was the correct account; as his initial wages
in 2001 comprised a cheque for £200 and £50 cash, which
cash sum rose to £60 three years later. The evidence of the
respondent was that the claimant was paid a cheque for £200
from his starting date in 2001 until his accident and that he was
never given a rise in wages, which the tribunal found hard to accept.
8. The
respondent, through its director, Mr McBride, became aware of the
fact that the claimant was visiting Mountfield. Mountfield had
employed the claimant before he went to work with the respondent.
The respondent knew that the claimant had a personal injury claim in
respect of the accident and also an Accident Hospital Benefit Policy,
which paid the claimant £600 per month whilst he was off work
as a result of an accident. The respondent became suspicious that
the claimant was working for Mountfield, whilst pretending that he
was still unfit for work, thus exaggerating his insurance claim for
loss of wages. The respondent established contact with the insurance
investigator who was involved in the claimant’s claim for
injuries and loss of wages and between them they took various actions
to check upon the claimant’s visits to Mountfield.
9. After
one sighting of the claimant at Mountfield at 11.30 am on 19 June, Mr
McBride telephoned to the claimant at 2.30 pm on the same day to see
when he was likely to return to work. The claimant immediately told
Mr McBride that he had been down to Mountfield to get some material
for the house. This interested Mr McBride as he had not mentioned
Mountfield to the claimant. In the afternoon at 3.00 pm the
claimant’s car was still at Mountfield and he was seen leaving
with a lunch box at 6.00 pm.
10. Evidence
was given by Mr Porter, who was an employee of Mr McBride, but not of
the respondent company. Mr Porter was asked by Mr McBride to watch
the home of the claimant and follow him when he left. Mr Porter did
this on Friday 20 June 2008. He saw the claimant leave his house at
8.10 am in the morning and followed him to Mountfield. Although Mr
Porter did not stay at Mountfield all day he did return in the
evening in time to see the claimant leave Moutfield, with a lunch box
under his arm, at 6.00 pm.
11. After
the accident the claimant received Statutory Sick Pay from the
respondent and this was paid to him by a cheque for £72.50 each
week for which the claimant had a medical certificate. Sometimes the
certificates were delivered late to the respondent but the claimant
did produce certificates for all his time on sick leave.
12. Mr
McBride had recorded in his diary, seven occasions, on which the
claimant himself, or his car in the car park, were seen at
Mountfield, between 15 May and the end of June. Mr McBride came to
the conclusion that the claimant was working for Mountfield. The
claimant did not deny that he was at Mountfield, but that he was
doing work for his own house and was not employed by Mountfield. The
claimant’s explanation was supported by the evidence of Mr
McIlhatton.
13. Mr
McBride gave evidence, backed up by a number of diary entries, which
showed that he had made many trips to the Mountfield factory and had
spotted the claimant’s car in the car park. This indicated to
him that the claimant was in the factory. However the tribunal was
informed and accept that other members of the claimant’s family
did occasionally use the claimant’s car.
14. On
1 July the claimant came back to work at the respondent’s
factory. He went into the office and had a conversation with Mr
McBride at which the parties agreed that a discussion took place
regarding the dates that the claimant was seen at Mountfield. The
discussion appears to have got heated as the claimant, according to
Mr McBride, said that that was none of McBride’s business.
Furthermore, Mr McBride informed the claimant that the insurers,
Quinn Direct, had been informed of the activities of the claimant, as
observed by the respondent’s director and others. At one stage
of the discussion, Mr McBride said to the claimant that he could go
out of the door and turn either left or right, left out of the
factory and out of his job, or right into the yard and get on with
his work. The conversation came to an end and the claimant left the
office and started work. He spent the first part of the morning
assisting in the loading of a lorry.
15. The
evidence then differs between the parties. The claimant states that
at 10.15 am he went upstairs in the building for his tea break. The
claimant was alone in the canteen. Mr McBride came in and according
to the claimant, asked him for his key to the factory and then said,
“lift your lunch box and go, I can’t work with liars.”
The claimant then told the tribunal that he went out of the building
and drove his car out of the yard. He considered that he had been
dismissed. He immediately went to his solicitor and instructed her
to start the process of grievance complaint relating to the
claimant’s unfair dismissal. The claimant’s solicitor
wrote to the respondent on 1 July claiming that the claimant had been
unfairly dismissed.
16. Mr
McBride’s evidence to the tribunal was that he did not go up to
the canteen and that his only conversation with the claimant was in
the office. He did not dismiss the claimant, but after asking him
about his involvement with Mountfield, he told the claimant that he
just wanted the truth. It was up to the claimant whether he stayed
or not. He stated that the claimant could go out of the office and
turn right down to the shop floor or turn left and leave the
building.
17. In
fact the respondent went right and helped load the lorry. This part
of the narrative is consistent from both parties. The tribunal had
great difficulty in deciding where the truth lay in these two
conflicting stories. Clearly if the claimant was dismissed, it was
not at the interview in the office, as the claimant went to help load
the lorry and then went to the canteen. Mr McBride states that he
did not have another discussion with the claimant before he drove
out. Thus the respondent’s case is that the claimant left of
his own decision. The respondent has always denied that the claimant
was dismissed. The onus of proof, on the balance of probabilities
standard of proof, is on the claimant to convince this tribunal that
the claimant was dismissed.
18. In
order to see if the claimant has discharged this onus the tribunal
have considered other evidence, to try and find support or
corroboration for the claimant’s verbal testimony. The
claimant was adamant that the words, “lift your lunchbox and
go, I can’t work with liars”, were said by Mr McBride in
the canteen at the second interview. The surrounding evidence was
that of Mr Fikner, another employee of the respondent. He was having
a smoke in the yard of the respondent’s plant, just outside the
office door. Mr Fikner had been upstairs for his tea in the canteen
and had come down for his smoke at about 10.30 am on the day in
question. He noticed Mr McBride in the office and testified that to
the best of his knowledge Mr McBride did not leave the office.
If he had gone up to the canteen he would have been heard by Mr
Fikner, as the door through which Mr Mc Bride would have gone was
held open with a piece of wood. Mr Fikner was on his own having a
cigarette and awaiting the arrival of his colleagues who usually had
a smoke with him. He would have heard Mr McBride passing on his way
to the canteen. However Mr Fikner told the tribunal that the next
thing that happened was that the claimant came past him at about
10.35 am with his lunch box. Mr Fikner then saw the claimant drive
away in his car. On the next day, Mr Fikner found a key to the plant
on a radiator, in the lobby outside the office. This turned out to
be the claimant’s key.
19. This
evidence tends to support the respondent’s story and confirm
that Mr McBride is telling the truth and that he did not go up to the
canteen, but gave a truthful account of the meeting in the office
before the claimant went out to help with the lorry.
The
law
20. In order to be entitled to claim
compensation for unfair dismissal, under the provisions of the
Employment Rights (Northern Ireland) Order 1996, it is necessary for
a claimant to satisfy a tribunal that he was dismissed by his
employer.
21. As stated, the onus of proving
that a dismissal occurred is on the claimant. He must show, that on
the balance of probabilities, his employer dismissed him from his
employment and that he did not leave of his own volition.
Decision
22. The tribunal in this case have
heard much conflicting evidence of events from the claimant and from
witnesses for the respondent. In some instances the tribunal has
preferred the evidence of one side over that of the other, as in the
instance of the way that the claimant was paid in cash and cheque.
There was much conflicting evidence as to whether or not the claimant
was working for Mountfield, or, as the claimant insisted, was only
making fittings for his own home. The respondent’s director,
Mr McBride, was convinced that the claimant was indeed working for
Mountfield. The tribunal make no finding as to whether or not the
claimant was so working, as the tribunal hold that such a finding is
not required, the case being decided on the events that occurred on 1
July, the day on which the claimant returned to work at the
respondent’s factory. On the question of the events of the
claimant’s first day back at work, after his accident recovery
period, the tribunal accept the respondent’s version of events.
23. It seems to the tribunal, most
unlikely that Mr McBride would have gone up to the canteen, to have a
conversation with the claimant about matters of this nature.
Mr McBride would not have known who was in the canteen at that
time. Mr Fikner was smoking on his own, as he had come down from the
canteen early. The tribunal asked itself, why would Mr McBride go up
to the canteen, when he did not know who was there and who might come
in at any moment? Mr McBride would, in the opinion of the tribunal,
be far more likely to have called the claimant to attend upon him in
his office, as he had at the first interview earlier in the day.
24. The other point that occurred to
the tribunal was that the evidence showed that although day-to-day
management of the business was the responsibility of Mr McBride,
it was Mr Convery who made most of the employment and recruitment
decisions. He would have conducted any staff interviews on his day
in the office. The tribunal hold, that on the balance of
probabilities, after weighing all the conflicting evidence on the
point, that it would be most unlikely that Mr McBride, having got
through the earlier interview with the claimant, on his own in the
absence of Mr Convery, would have gone storming up to the canteen to
re-open the discussion with the claimant, not knowing who might be
there.
25. The tribunal therefore holds that
the second meeting upstairs did not take place and that the claimant,
having come to the realisation that Mr McBride had had him followed
to Mountfield and had taken pictures of his car there, decided to
leave the respondent’s employment. The claimant, after seeing
this evidence at the earlier meeting and having had time to think
about his situation whilst loading the lorry, felt that he should
leave his employment. He then went straight to his solicitor to
claim that he had been unfairly dismissed. On the adage that ‘attack
is the best form of defence’. He would have had time to
consider the matter whilst he was loading the lorry and having his
break, when no doubt he considered the statement of Mr McBride
that he was in touch with the claimant’s insurance company.
26. Mr McBride had not handled the so
called ‘back to work interview’ very well. It was more
akin to a disciplinary interview with the production of the
photographs of the Mountfield plant and the allegations of the
claimant working there. There was no proper procedure adopted for a
disciplinary meeting and it did not result in any sanction being
imposed on the claimant. It was agreed by both parties to that
interview, that it ended with Mr McBride’s remark about the
claimant either turning one way to leave, or the other way to
continue with his work. The claimant left the interview and resumed
his work. Consequently he was not dismissed but later that morning
decided himself to leave the respondent’s employment. This in
the view of the tribunal was the claimant’s own decision and
the tribunal therefore holds that the claimant has not discharged the
burden of proof laid upon him and consequently he was not dismissed
by the respondent. The further evidence that the claimant would
appear to have left his key in the lobby and not given it to
Mr McBride, would, in the eyes of the tribunal, reinforce its
opinion, that the claimant decided to leave his employment.
27. The tribunal therefore holds that
the claimant was not unfairly dismissed from the respondent’s
employment.
Chairman:
Date
and place of hearing: 20 February 2009; 25-26 March 2009, Omagh
Date
decision recorded in register and issued to parties:
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