THE INDUSTRIAL TRIBUNALS

CASE REF:  00395/08

CLAIMANT:			Tihomir Videv

RESPONDENT:		Stationery Trade Supplies Limited

Constitution of Tribunal:

Chairman:	Mr Davey

Members:	Mr Sidebottom
		Mr McKenna

The unanimous decision of the tribunal is:-
(a)	That the title of the proceedings be amended by deleting Dams (Northern Ireland) Limited and showing Stationery Trade Supplies Limited as the sole respondent.
(b)	That the claimant was unfairly dismissed.
(c)	That the respondent do pay the claimant the sum of £1,240 by way of compensation.
Appearances:
The claimant appeared in person.
The respondent was represented by Mr S Scott of Stephen Scott & Company Solicitors.

DECISION
REASONS
1.	There was no dispute between the parties that the claimant had at all relevant times been employed by the Stationery Trade Supplies Limited and had never been employed by Dams (Northern Ireland) Limited.  Accordingly the Tribunal directed that Dams (Northern Ireland) Limited be deleted from the title and that Stationery Trade Supplies Limited be confirmed as the sole respondent.
2.	The issues for the Tribunal were:-
(a)	Whether the claimant had been unfairly dismissed;
(b)	Whether, if the dismissal was unfair by reason of procedural defect, the dismissal would have occurred anyway even if the correct procedures had been followed.
(c)	Whether the claimant should be regarded as being unfairly dismissed due to a failure to observe the procedures set out in Part 1 of Schedule 1 to the Employment (NI) Order 2003.
(d)	If so, whether, and if applicable to what level, any award made by reason of (3) above should be increased.
3.	The claimant began employment with the respondent in August 2005.  The respondent employed a number of Bulgarians and the claimant, who was also Bulgarian, was known to one of the employees who was instrumental in getting the claimant a job with a freight company who assisted the respondent from time to time.  In August 2005 he came to work for the respondent in the Republic of Ireland.  Prior to May 2007 the claimant asked if he could move to Belfast for personal reasons.  The respondent had no immediate availability of employment in Belfast.  However a little later they were approached by colleagues with a request that, if possible, the claimant should be facilitated.  A position became available in Belfast and the claimant moved to Belfast in May 2007 to work as a driver/installer in relation to office furniture.  
In the summer of 2007 there were complaints from customers that jobs were not being done on the day that they were booked.  The claimant was interviewed about this but offered no explanation or excuse.  He was issued with a verbal warning on 5 July 2007.  On 11 September 2007 a verbal warning was issued to all drivers about the requirements to wear their health and safety boots and about their general attitude to work.  In the autumn of 2007, there were complaints from other drivers about the claimant not helping.  Manifests detailing work done, clock cards were not being completed properly and the other drivers were taking the attitude that if this was alright for the claimant it was alright for them.  A meeting was held on 1 November 2007 with everybody present at which the duties and requirements were reiterated.  In particular it was made clear that drivers would not be paid for lunches which were not taken, that if cards were not filled in that standard hours would be paid and that tampering with clock cards, whoever they might belong to, was a matter for immediate dismissal.  On 14 November 2007 the claimant’s manager interviewed him about a number of issues including completed clock cards showing that he had worked until 5.30 pm when he had left work before 4 pm, his attitude toward his fellow employees and his failure to complete manifests correctly.  In this regard investigations with customers in relation to one week’s manifests had shown that the times recorded by the claimant on the manifests did not match the evidence of the customers as to the times he had been with them.  These figures suggested that the claimant should have finished work earlier than he said he did.  As regards the clock cards indicating that the claimant had been working to 5.30 pm when he had left the depot at 4 pm the claimant’s manager was able to testify to this of her own knowledge as she had seen him leaving on the days in question.  The claimant did not address the serious issues relating to the clock cards and the manifests.
The claimant’s manager indicated to the claimant that she was arranging for him to see her superior on 19 November.  On that day the manager in overall charge interviewed the claimant.  Mr King made available to him the record of the claimant’s meeting with his own manager on 14 November.  The claimant was advised at the outset that it was a disciplinary meeting and that he could be accompanied if he so chose.  The claimant refused.  All the issues which had previously been discussed, including the matter of the manifests and clock cards were put to the claimant.  With regard to these allegations the claimant merely shrugged his shoulders and would not say if he had done what was alleged or not.  Eventually he was told that he was giving the respondent little option and at the conclusion of the meeting he was dismissed with two weeks notice.  This meeting lasted about 20 minutes. 
The facts as set out above are the facts as found by the Tribunal.  They are the facts as given in evidence by the respondent and various witnesses.  
4.	The tribunal did not find the claimant’s evidence convincing.  He claimed in evidence that it was the respondent who wanted him to work in Belfast rather than the other way round.  The preponderance of the evidence favoured the respondent’s view and even on the claimant’s own evidence he indicated that it was convenient for him for family reasons to be working in Belfast.  To the Tribunal the claimant said that he considered all the problems to be due to a personality clash between himself and his manager, all arising out of the first disciplinary meeting at which he received a verbal warning back in July 2007.  However no such indication was given in the letter sent to the respondent by the claimant’s solicitors prior to proceedings being issued, nor was any such indication given in the originating claim form itself.  The allegation made in those documents was that it was because he had been told he would no longer be paid overtime for travelling home from a job.  The claimant stated to the Tribunal that he had told his solicitor about the personality clash and his belief that the July incident was the cause of all the problems.  The Tribunal did not accept this and believing that if he had done so then if would have been mentioned.  The claimant sought to explain this by blaming his solicitor.  To a subsequent enquiry from the respondent’s solicitor as to his efforts to obtain employment after his dismissal the claimant indicated in a letter written by himself that he was unable to apply for a job in Ireland because at that time the labour market was suffering, the unemployment rate was getting higher and there was no job available.  To the tribunal, subsequent to evidence having been given that jobs were available in the Republic, at the time he stated that the reason he had been unable to take a job in the Republic was that he had a flat in Belfast which he had leased for a year.  
These inconsistencies suggested to the Tribunal that the claimant was inclined to adjust his evidence in order to deal with allegations which might be made.  The Tribunal is satisfied that the respondent had carried out a reasonable investigation and that at the conclusion of that investigation and disciplinary process the respondent reasonably believed that the claimant had been guilty of falsifying his manifests and clock card.  The Tribunal does not accept the claimant’s evidence that he believed that what he was doing was in accordance with the respondent’s Dublin practice and was acceptable.  The Tribunal further considers that in such circumstances dismissal was within the range of reasonable responses open to the respondent.
5.	The Tribunal finds, however, that the procedures used by the respondent in relation to the matter fell short of what is required and that, in particular, they did not meet the procedures laid down by the Employment (NI) Order 2003.  However, by virtue of Article 130(a) of the Employment Rights (NI) Order 1996 failure by an employer to follow a procedure in the dismissal of an employee is not to be regarded as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.  Furthermore, in considering the amount of any compensation which may be awarded under Article 157 of the Employment Rights (NI) Order full account has to be taken of the chance that the claimant might have been dismissed in any event even if there had been no procedural shortcomings [Polkey  v  A E Dayton Services Ltd 1987 IRLR 503].  The Tribunal is satisfied that in a case involving falsification of clock cards and manifests it is 100% likely that even if there had been no procedural defects, the claimant would have been dismissed.  Accordingly no compensatory award is payable.
6.	However the provision referred to in 130(a) referred to above is expressly provided to be subject to Article 130(a)(1).  That paragraph provides that an employee who is dismissed shall be regarded as unfairly dismissed if the statutory procedures set out in the Employment (NI) Order 2003 had not been complied with.  In this case it was conceded by the respondent that the statutory procedures were not complied with.  Accordingly an award is payable in relation to that.  Article 15(4) of the Employment Rights (NI) Order 1996 provides that where an employee is regarded as unfairly dismissed by virtue of Article 130(a) the amount of the basic award if it is less than 4 weeks pay shall be increased to the amount of 4 weeks pay.  In this case the claimant had two full years’ service and the award would be less than 4 weeks.  Accordingly by the operation of statutory provisions the basic award is increased to 4 weeks pay.  The claimant was being paid at rates of 375 euros per week.  This would, at the current rates of exchange, exceed the statutory maximum applicable in relation to a weeks pay as at November 2007 when the claimant was dismissed.  The statutory maximum then provided for was £310 accordingly the Tribunal makes an award of £1240 (4 x 310).
7.	There is provision in the Employment (NI) Order 2003 for uplift to be applied to awards made on the basis of failure to observe the statutory procedures.  However, this provision applies only to compensatory awards.  As set out above no compensatory award is payable and, consequently, no question of uplift arises.  There is no basis for any further payment to be made to the claimant.

Recoupment
8.	No question of recoupment arises.

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

Chairman:

Date and place of hearing:	27 February 2009 – 2 March 2009, Belfast.

Date decision recorded in register and issued to parties: