THE INDUSTRIAL TRIBUNALS

CASE REF:  05804/09

CLAIMANT:		Mark Reilly

RESPONDENT:	Mercury Security Management

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed from his employment and nor has he suffered any health and safety detriment.  He is not entitled to Notice Pay.

Constitution of the Tribunal:

Chairman: 		Ms F Oliver

Panel Members: 	Ms Gregg
Mr Sidebottom

Appearances

The claimant appeared and was represented by his mother, Mrs Wendy Reilly.

The respondent was represented by Mr T Sheridan of Peninsula Business Services Limited.

Sources of Evidence

1.	The tribunal heard evidence from the claimant and from four witnesses on behalf of the respondent, Mr Stephen Ginn, Mr David Patterson and Mr Ronnie Heaney employees of the respondent and Mr Frank Cullen.  The tribunal also considered the bundle of documents provided by the respondent and a letter provided by the claimant.

The Claim and the Defence

 2.	The claimant claimed unfair dismissal, breach of contract, health and safety detriment and right to receive particulars of contract.  The respondent denied all of these claims.
Issues

 3.	As the claimant had been employed by the respondent for less than a year, the first issue in relation to Unfair Dismissal is whether the tribunal has jurisdiction to hear the claim.  The tribunal asked the parties to look at the relevant legislation and in particular Article 132 of the Employment Rights (Northern Ireland) Order 1996 (ERO).  This was not referred to specifically by the claimant in his claim form.  At the time of submitting his claim form, the claimant had left the date for commencement of his employment blank as he thought he might have benefitted from a Transfer of Undertakings but he accepted at hearing that he had been employed for less than one year.  Both parties were referred by the tribunal to the appropriate Article which appeared to touch on what was being alleged by the claimant.  The claimant confirmed that he wished to rely on Article 132 of the ERO.

Findings of Fact

4.	The claimant commenced employment as an employee of the respondent on 27 July 2008 and he was dismissed on 18 February 2009.  

5.	The claimant was employed as a security officer in the respondent company (the company).  The claimant worked at the Connswater Shopping Centre.  He had been a security guard for 18 months.

6.	The company is involved in the security industry.  It employs 140 people.

7.	On 14 February 2009 the claimant was involved in an altercation with a member of the public.  The claimant asked a female shopper not to take photographs in line with the Shopping Centre policy.  The woman apparently became upset and angry and after further words were exchanged the woman asked to speak to the Centre Manager. 

8.	The claimant escorted the woman up the stairs to the control room and at this stage the argument between the two was still quite heated.  

9.	The Controllers in the Control Room managed to calm the situation down and the woman left a contact number for someone to contact her once her complaint had been investigated.  She then left the Centre.

10.	The claimant left the Centre some time afterwards without informing Management of his decision to leave although he did inform the other members of staff who were in the control room.

11.	The members of staff tried to persuade the claimant to stay but he refused to do so.

12.	The claimant left the Centre.  He returned alone to his own home and remained there alone until the following day, a Sunday.  On Sunday 15 February the claimant made a complaint to the police regarding the incident.  He did not contact the police until after he had spoken to his parents. 

13.	The police attempted to investigate the incident but were unable to contact the woman as they were unable to make contact on the phone number provided.

14.	The claimant has not contacted the police to find out whether any further investigations will be carried out.

Analysis of the evidence

15.	We did not find the claimant’s evidence entirely convincing.  We note that in his direct evidence he stated that he went to the Control Room and that the woman followed him, giving a clear impression that she was following in a threatening manner.  It later turned out that in fact the claimant was taking the woman to see the Manager at her request as she wished to make a complaint.

16.	The claimant initially said that he left the Centre immediately after the woman left but when questioned further he stated that as far as he could remember, he left immediately after the woman left.

17.	There were inconsistencies in the claimant’s evidence regarding his experience in the security industry.  He first said that he did not ever work in the Control Room but on further questioning, he admitted that he had worked there on occasions.  He implied that he had not worked in the Connswater Centre before.  His evidence regarding previous experience was evasive.

18.	The evidence of Mr Stephen Ginn was more convincing regarding the manner in which the woman left the Centre.  Nobody escorted the woman off the premises which the tribunal believes was an indication that the controllers did not consider that the woman posed a risk to anyone in the Centre.

The claimant’s submissions

19.	The claimant submits that the woman threatened him and said she was going to come back to the Centre with her husband and her four sons.  She told the claimant that she was local and that she knew people around there.  On further prompting from his representative, the claimant indicated that he felt scared, petrified and that there was a threat to himself and colleagues.

The respondent’s submission

20.	The respondent asserts that the disciplinary process that it carried out was fair and appropriate.  The respondent asserts that this was not a situation of danger.  The respondent contends that there was no great threat to the claimant and that the claimant’s actions subsequent to the incident do not indicate that he felt seriously threatened.

The Law

21.	Article 126 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to be unfairly dismissed.

Article 140 states that Article 126 does not apply unless the claimant has been employed for not less than one year.

Article 132 states: 

“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (0r, if more than one, the principal reason for the dismissal is that–

(d)	in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.”

Article 68 states:

“(1) An employee has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer done on the ground that- 

(d)	in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work”.

Article 45 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to suffer unauthorised deductions from wages.

The tribunal also considered the case of Harvest Press Ltd v McCaffrey [1999] IRLR 778, EAT.

Application of the Law and Findings of fact to the Issues

22.	The claimant can only succeed in this claim if the tribunal finds that the claimant left Connswater Shopping Centre on 14 February 2009 because he reasonably believed that he was in serious and imminent danger.  We do not find that this was the case.  The evidence does not point to a reasonable belief of serious and imminent danger.  We note that the claimant left the Centre alone.  He did not contact the Police until the following day when he was prompted by his parents to do so.  The woman who supposedly posed the threat to the claimant was allowed by other staff to leave the Centre unaccompanied.  There was no attempt made by other staff to escort her off the premises.  

23.	The claimant’s version of events was not credible or consistent and nor did it accord with the evidence of Mr Stephen Ginn. 

24.	We accept that the claimant may have felt annoyed and upset by the whole unpleasant incident and that this is why he left the Centre.  We do not consider that this is sufficient to bring him within the remit of Article 132. 

Conclusions

Unfair dismissal

25.	The tribunal concludes that the claimant was not unfairly dismissed from his employment.  

Health and safety detriment

26.	The tribunal concludes that the claimant has not been subjected to any detriment in accordance with Article 68 of the Employment Rights (Northern Ireland) Order 1996.

Breach of contract-notice pay

27.	We do not accept that the claimant was entitled to notice pay.  The claimant was dismissed for gross misconduct and is therefore not entitled to Notice Pay.  

Statement of terms and conditions

28.	The claimant did not receive a contract until one month after he was dismissed but he had received his contract by the time proceedings were issued and so there is no monetary compensation due.

Chairman:

Date and place of hearing:	19 October 2009, Belfast.

Date decision recorded in register and issued to parties: