THE INDUSTRIAL TRIBUNALS

CASE REF:	567/08

CLAIMANT:			James Colgan

RESPONDENT:		Pro-Vac Environmental Services Co Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  The tribunal also unanimously concludes that there was a transfer of undertakings which gave the claimant two years’ continuous employment thereby entitling him to two weeks’ notice pay upon termination instead of the one week’s notice pay he received.  The respondent is ordered to pay to the claimant the sum of £16,767.98 as per the attached schedule, which becomes part of the decision.

Constitution of Tribunal:
Chairman:		Mr Browne
Members:		Mrs Doran
			Mr Dodds

Appearances:
The claimant was represented by Miss R Ellis, Barrister-at-Law, instructed by Thomas Taggart & Sons, Solicitors.
The respondent was represented by Ms A McCord and Mrs S Robinson.

The issue

1.	The tribunal had to determine if the claimant had been unfairly dismissed by the respondent; the tribunal also had to determine the claimant’s period of continuous employment for the purpose of determining the amount of notice to which he was entitled.

Findings of fact 

2.	The claimant had started employment as an industrial cleaner with Pro-Vac in January 2006, which at that time was owned and operated by Mr Bertie Wilson. That business was re-launched as a limited company from February 2007, with Ms Angela McCord, who had become Mr Wilson’s partner, in business and in life, acquiring some 95% of ownership.  Mr Wilson however clearly remained involved in much of the day-to-day running of the respondent business.  Whilst this seems to have decreased due to serious illness at the end of 2007, he nevertheless signed the claimant’s dismissal letter and was involved in correspondence arising from the claimant’s dismissal.  He also remained as a director of the respondent company.

3.	The name of the respondent business was not changed; Ms McCord told the tribunal that this was because they could not think of another name.  Whilst new equipment was purchased by Ms McCord, much of the previous Pro-Vac equipment was utilised.  A major Department of the Environment cleaning contract continued without interruption or need for further tender.  The claimant continued to work, at the same rate of pay and conditions without apparent interruption.  A new format contract of employment dated 23 May 2007 was the only apparent difference.  That document contains a paragraph headed ‘Continuity of employment for TUPE staff...’  The tribunal is satisfied that there was a seamless transfer of undertakings and that the claimant had been continuously employed since January 2006 until his dismissal in February 2008.

4.	The claimant was dismissed by the respondent on 8 February 2008.  The manner in which he was notified of his dismissal was to put a fax sheet into his weekly       pay-packet, which was then put through his letter-box at home.  The reasons advanced in the fax sheet letter were:-

bullying in the workplace;

bad timekeeping;

leaving his place of work early requiring men to have to return to finish it resulting in ‘call-backs’; and

not pulling together as a team member.

The undated letter was signed by Ms McCord and Mr Wilson as directors of the respondent company.

5.	The tribunal found no evidence that the claimant had ever been taken to task about any of these complaints.  Ms McCord gave evidence to the tribunal that the claimant had received verbal warnings from Mr Barry Lynn about bullying in August and September 2007, and that he received a copy of a company bullying advice notice in his pay-packet in late 2007.  The claimant emphatically denied receiving any such warning, and Barry Lynn, supervisor, giving evidence for the claimant, also denied giving him any verbal warnings.  He stated that he had only had to say to the workforce in general to pull together because of poor team spirit.

6.	The evidence upon which the respondent relied in support of bullying came from Christopher Surgenor, aged 16, son of Ms McCord, and from Stephen Lynn, younger brother of Barry Lynn.  The tribunal found that at its height, their evidence was that the claimant had instructed Christopher Surgenor brusquely what to do on one occasion and that he had squared up to Stephen Lynn when the latter had been cheeky to him.  The claimant denied both sets of circumstances had occurred as described.  The weight of these witnesses’ evidence was in the view of the tribunal gravely undermined by the fact that they had made purported statements of complaint, written for them by Ms McCord, when the claimant had already been dismissed.  Christopher Surgenor told the tribunal that she had typed out his statement, which he was unable to read, and that he ‘had to sign it’.

7.	There was no credible evidence upon which the tribunal could find that there was any complaint which could have amounted to an allegation of bullying.

8.	Ms McCord sought to rely on diary entries and minutes of management meetings where this issue was allegedly discussed.  The claimant was never present at these meetings.  The tribunal however finds itself unable to rely upon any such alleged record.  Ms McCord told the tribunal that the three purported minutes were written by her on sheets of paper and then transcribed by her into the minute book, in two instances several months later and all three after the claimant had been dismissed. 

9.	She recorded in the minute book the presence of a Cathy McWhirter at each meeting.  She claimed that she only realised her error when asked for Mrs McWhirter’s address by the claimant’s solicitors for the purposes of a witness summons in these proceedings.  Not only was Cathy McWhirter not present at these meetings, but she has absolutely no connection with the respondent business. 

10.	The tribunal received no satisfactory explanation from Ms McCord as to how this fundamental error which was made and repeated by her came about, and consequently concludes that no reliance can be placed upon the minute book entries.

11.	As regards the various reasons proffered by Ms McCord as to the claimant’s dismissal, the tribunal similarly concludes that it is unable to place any reliance upon them.  When asked by the claimant on 22 February in a letter drafted by his solicitor to explain the reasons for his dismissal, she responded on 11 March 2008.  In her letter, in addition to the reasons in the letter of termination of 8 February 2008, she additionally cited breach of confidentiality, also stating that it alone would warrant summary dismissal.

12.	This was the first time that any mention had been made of such conduct by the respondent to the claimant.  At the tribunal hearing, Ms McCord sought to justify such omission by claiming that this was because her partner, Mr Bertie Wilson, was a friend of the claimant and did not want such a serious allegation to be made.  The tribunal found this to be inherently contradictory.  If true, Mr Wilson was content to sign a letter summarily dismissing his friend and to have it put through his letterbox in his pay envelope, but otherwise was too sensitive to his feelings to tell him the real reason for his dismissal.

13.	In addition to this contradiction, the respondent’s evidence relating to the alleged breach of confidentiality came from her son, Christopher Surgenor.  His evidence to the tribunal was clear that the alleged incident actually occurred after the claimant had already been dismissed.  It therefore could have had no bearing upon the decision to dismiss the claimant. 

14.	One other ground advanced by the respondent for dismissing the claimant was that he left cleaning jobs early.  One of these alleged incidents occurred at Maghaberry Prison, thereby breaching security.  The evidence however was clear that all of the men had left early, and that they had actually been let out by the appropriate prison escort.  Any breach of the rules compromising security was therefore the responsibility of the prison escort and had nothing to do with any conduct of the claimant.

15.	Similarly, regarding his alleged early departures from other jobs, there was no evidence that he did so; in any event, he could not leave until the others did too because they all travelled in the same vehicle.

Law and conclusions

16.	It was common case that the claimant had never been formally disciplined for any of his alleged misconduct.  The respondent initially asserted that the claimant had been summarily dismissed without any disciplinary procedure because he had not been employed for the requisite period of 12 months.  By the time of hearing however, this stance had been amended and the respondent now accepts that the claimant had sufficient length of employment to be afforded protection by Article 140 (1) of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).

17.	Article 130(1) of the 1996 Order states:-

“In determining … whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	the reason (or, if more than one, the principal reason) for the dismissal, and

(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

18.	The tribunal considers that the respondent has failed to surmount even the modest hurdle of showing the reason or principal reason for dismissing the claimant.  The dismissal is therefore unfair.

The award

BASIC AWARD

19.	This is calculated by the tribunal at £1,320.00, in agreement with the attached schedule of loss, which should be treated as the decision of the tribunal, and which was not challenged by the respondent.

COMPENSATORY AWARD

20.	In accordance with the provisions of Article 157 of the 1996 Order, this award is such as the tribunal considers to be just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal insofar as that loss is attributable to the action taken by the respondent.

21.	The amount in this case is assessed by the tribunal as £10,298.95, in agreement with the attached schedule of loss, which again was not challenged by the respondent. 

22.	In assessing the compensatory award, the tribunal also has had regard to Article 17(3) of the Employment Rights (Northern Ireland) Order 2003, which makes provision for a statutory uplift of between 10% - 50% in any compensatory award where non-completion of the statutory disciplinary and dismissal procedure is wholly or mainly attributable to the failure of the employer to comply with the requirements of the procedure.

23.	It is the view of the tribunal that the failure of the respondent to comply with this procedure was total.  This might partly be explained by the fact that the respondent originally viewed the claimant as not having sufficient length of service to come within any statutory protection.  In the view of the tribunal, such ignorance was due to the failure of the respondent to trouble itself to seek even the most rudimentary information as to its legal responsibilities. 

24.	The tribunal can find no redeeming features in the conduct of the respondent in failing to comply with the clear procedures required of it, and therefore considers it appropriate to order that the compensatory award be uplifted by 50%, making the total amount which the tribunal orders the respondent to pay to the claimant  £16,767.98.

25.	The picture which emerged during the tribunal hearing was that the conduct of the respondent throughout this process was one of alarming disregard for any attempt at compliance with any of its legal responsibilities.  

Schedule of Loss

Basic Award

Gross pay £337.50
(£7.50 per hour x 45 hours per week - £337.50)

Statutory maximum weeks pay £330

Gross pay x multiplier (number of complete years worked when not below 41 years of age) x number of years service

£330 x 1.5 x 2 = £990

Unlawful Deduction of Wages in respect of notice pay
1 weeks notice pay given instead of statutory minimum notice of 2 weeks
1 week pay = £330

Total Award = £1,320

Compensatory Award

Gross Pay (6/4/07-15/2/08) = £16,676.25
Tax Paid (6/4/07-15/2/08) = £2441.25
NIC (6/4/07-15/2/08) = £1334.25

Net pay = £12,900.58

Net pay per week = £12,900.58/45 weeks (6 April 07-15 Feb 08) = £286.68

Immediate loss = 45 weeks
22 February 2008 to 5 January 2009

45 weeks x net pay
45 x £286.68 = £12,900.06

Future loss – no claim being made in respect of future loss as claimant now in gainful employment

Pension loss = nil

Loss of statutory rights = £250

Compensatory Award = £13,150.60

Amount of benefit paid to Claimant by DSS

21/2/2008-10/04/2008 = 7 weeks x £61.35 = £429.45

10/04/2008-5/01/09
= 38 weeks x £63.75 = £2,422.50

Total = £2,851.95

Balance of Compensatory Award (£13,150.60) – benefit (£2,851.95)
= £10,298.65

Statutory Uplift of between 10%-50% under Article 17(3) of Employment Rights (NI) Order 2003
Non completion of SDDP wholly or mainly attributable to the failure of the employer to comply with the requirements of the procedure.

50% on £10,298.65		  = £5,149.33
				= £15,447.98

Monetary Award = Basic Award + Compensatory Award
			£1,320 + £15,447.98

		      = £16,767.98

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

Chairman:

Date and place of hearing:	26 – 27 January 2009, Belfast

Date decision recorded in register and issued to parties: