THE INDUSTRIAL TRIBUNALS 

CASE REF: 7398/09	

CLAIMANT:	Adrian Currie				

RESPONDENT:	R Barkley & Sons Limited			

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and is entitled to the compensation set out in the Schedule below, amounting to £5,051.94.

Constitution of Tribunal:	
	
Chairman:			Mr Cross	

Panel Members:		Mr Irwin
				Mr Patterson	

Appearances:

The claimant appeared in person and was not represented.

The respondent  was represented by Mr M Canavan of Messrs McGuinness and Canavan Solicitors.

Findings of Fact 

1.	The respondent who was born on 9 September 1964, was in employment with the respondent for three separate periods. The last period of employment was from a date that was not recorded, in September 2008 until his employment terminated on 23 October 2009. He was employed in the respondent’s haulage business as a HGV driver. Much of his work was in England and Scotland returning on the ferries. The claimant was in receipt of a variable gross wage, based on the hours that he worked in any week. The parties agreed that his average net weekly wage was £351.49. This included certain recurring allowances which were treated as liable for income tax by the Inland Revenue. It excludes certain other expenses for food and accommodation on journeys undertaken in the course of his employment.
2.	The claimant was working in Great Britain during the week ending on Saturday 24 October 2009 and was very anxious to return to Northern Ireland on the 13.30 hours ferry from Cairnryan on Friday 23 October. The claimant had commenced the trip, from which he was returning, on the previous Sunday 18 October. At the time that the claimant was planning to come home on the 13.30 ferry he was convinced in his own mind that if he did not get that ferry he would not arrive home within the time allowed under the Tachograph regulations and he could face a prosecution if stopped by the police or the Tachograph enforcement patrols. As will be explained later in this decision, the claimant was wrong in this calculation and he could have driven for a further period without breaking the law.

3.	The respondent’s transport manager, Mr Craig, back at the respondent’s depot in Ballymoney, was aware that the claimant had further hours of driving allowed on that day and upon receiving a request for a load to be moved from Dunfermline to Cairnryan, he telephoned to the claimant to ask him to drop his current load at the docks and then go to Dunfermline to pick up the new load to return to the docks for the later ferry that evening.

4.	When the claimant received that call from Mr Craig at about 11.10 hours on 23 October the claimant told him that he was about 10 minutes from Cairnryan docks. The tribunal have however seen the ticket that the claimant purchased at the docks and it was issued to him at 11.11hours. The tribunal are therefore satisfied that the claimant was at the docks and had purchased the ticket for the vehicle and himself as driver, before, or immediately after he received the call from Mr Craig.

5.	Mr Craig asked the claimant to go to Dunfermline to collect the load and told the claimant that this was within his allowed driving time. The claimant steadfastly refused to obey this direction, saying that it would be in breach of his allowed time under the Tachograph regulations. Mr Craig said that he would have to report the matter to the managing director of the respondent, Mr Barkley. At about 11.30 hours Mr Barkley, who had been on his way to the Ballymoney yard whilst Mr Craig was speaking to the claimant, telephoned to the claimant and asked him to do the run and get the later boat. Again the claimant refused quoting the regulations regarding driving time as his reason.
 
6.	There then occurred a conflict in the evidence between Mr Barkley and the claimant. Mr Barkley told the tribunal that he was satisfied that Mr Craig would have checked the driving time and that the claimant could do the trip proposed. He directed the claimant to do it. He explained to the claimant that the trip would be legal. The claimant refused and said he was coming back. Mr Barkley tried to persuade the claimant to make the trip to Dunfirmline. The claimant said that he was, “coming back on the 13.30 boat with or without the lorry, the choice is yours.” Mr Barkley told him “no, the choice is yours.”  Mr Barkley then suggested that if the claimant was intent on leaving his employment he should give a week’s notice. This was refused by the claimant who merely said that he would be on the 13.30 sailing. From this exchange Mr Barkley came to the conclusion that the claimant had resigned from his employment.

7.	The claimant’s evidence was, that when he told Mr Barkley that he would not do the requested extra journey, because, as he explained, it would be illegal, as he then mistakenly thought, Mr Barkley after much argument dismissed him from his employment and told him to leave the lorry at the docks and make his own way home. For the reasons that are recorded below, the tribunal prefer the claimant’s account of this discussion and hold that the claimant was summarily dismissed by the respondent, on the telephone during this discussion.

8.	The claimant then handed over the keys of his lorry to the port staff and at 11.50 	purchased a foot passenger ticket on the 13.30 sailing.

9.	The tribunal were provided with copies of the Tachograph regulations which governed the driving and rest times to be complied with by all HGV drivers in the EC. After the expert evidence of Mr Bennett, the claimant accepted that he had made a mistake in the calculation of the time remaining on that day, during which he could have made the journey to Dunfirmline.

The Law

10.	The claimant claims that he was unfairly dismissed. Under the provisions of Article 126 of The Employment Rights (Northern Ireland) Order 1996 (the 1996 Order), “an employee has a right not to be unfairly dismissed by his employer.” Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question.

11.	Certain dismissals are declared by Statute to be automatically unfair. One such is where the employer fails to comply with the terms of Article 130A of the 1996 Order. This states that a dismissal is to be regarded as unfair, if one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), has not been complied with and the non compliance is wholly or mainly attributable to the failure of the employer/respondent. The procedure referred to in Schedule 1 of the 2003 Order provides for the employer to give written information to the employee as to its reason for wishing to terminate the employment of the employee and to invite the employee to a meeting to discuss the matter. The meeting must take place before the action of dismissal is implemented and if the employee is still intent on dismissing the employee it must give the employee a right of appeal. If it fails to carry out this procedure then the subsequent dismissal is automatically unfair. This is known as a failure to follow the statutory dismissal procedure.

12.	If the tribunal is satisfied that the claimant has been unfairly dismissed, it can award the claimant compensation, payable by the respondent. The tribunal, if the statutory procedures are not complied with, must increase the award of compensation that it makes by 10 per cent, (Article 17 of the 2003 Order). The tribunal also has power, under the same Article, to increase the award by a further percentage, up to 50 per cent, if the tribunal considers it just and equitable so to do. Furthermore, the tribunal must make up the basic award to the claimant, to a sum equal to 4 weeks salary (if the basic award would otherwise be of a lesser sum), if the respondent has failed to implement the statutory dismissal procedure; unless the tribunal decides that it would be unjust and inequitable to so award. (Article 146 of the 1996 Order).

Tribunal Decision

13.	The tribunal is satisfied that the claimant was unfairly dismissed by the respondent. The way that the respondent dismissed the claimant, did not comply with the statutory requirements set out above. The claimant should have been asked to attend a disciplinary meeting and the employment charges against him should have been clearly set out in writing. He should have been given an opportunity to consider the allegations against him and to state his side of the case. Finally the 2003 Order provides that the ‘employee should have a right to appeal against the finding of dismissal’. None of these requirements were met and accordingly the dismissal is unfair under Article 130A of the 1996 Order. 

14.	The tribunal are of the view that the claimant wrongly believed that he was not legally in a position to drive the vehicle on the trip that had been directed by his manager. The Tachograph Regulations, about which the tribunal heard a great deal, had been changed and it would appear that the claimant was working under the misapprehension that the old regulations still applied. He admitted this to the tribunal, after he heard the expert evidence of Mr Bennett concerning these regulations. The claimant now admits that the interpretation of the Regulations by the respondent is the correct interpretation and the journey to Dunfermline would have been within his permitted hours. This being the case the claimant was in effect refusing to carry out a reasonable instruction from his employer. This would have been a situation where the respondent could have brought a disciplinary charge against the claimant which should have been dealt with in the way set out above. This is the type of case where the Statutory procedures would have been most helpful and could have resulted in the true situation concerning the Tachograph regulations being explained to the claimant and an appropriate punishment having been administered to him. The respondent’s Managing Director told the tribunal that the claimant was an excellent and reliable driver and that he had no wish to lose his services.

15.	The tribunal find that when the claimant refused to do the journey required by the respondent, Mr Barkley lost his temper and dismissed him there and then, telling him to leave his vehicle and to make his own way home. As the dismissal occurred in this manner the statutory procedures were not followed and the dismissal is automatically unfair. The tribunal therefore award to the claimant the basic award increased to four weeks salary, capped at the maximum amount. The tribunal awards a compensatory award, of the claimant’s loss of net salary together with the expenses on which he paid income tax, for the period up to when he obtained a new job and the difference in pay between the two jobs for a period of 26 weeks from the date on which that new employment began, ie until the first week of July 2010. The compensatory award is increased by 25% to reflect the respondent’s total failure to observe the statutory procedures.

16.	The tribunal do not make any reduction, on the basis of the argument that the dismissal would have occurred in any event, whether or not the statutory procedures had been followed. The tribunal hold, that had these procedures been adopted the claimant would have discovered that it was he who was in  the wrong and he might only have received a warning. The tribunal do however feel that the claimant’s conduct and failure to listen to his employer’s reasoned arguments did contribute to his own dismissal. It is difficult for the tribunal to understand how the claimant failed to find out about the changes in the Tachograph regulations, as it was mentioned in the driver’s magazines and discussed amongst drivers on the ferries and in the cafes on the roads. However, it is fair to say that the respondent did not formally notify the drivers of the changes. The tribunal hold that the compensation payable to the claimant should be reduced by 30% to reflect the claimant’s contributory fault.

17.	The calculation of the compensation is set out in the Schedule below. 

Schedule

Calculation of compensation

Basic Award 

Length of service at effective date of termination (EDT) 23 October 2009 was 1 year and 2 months

The claimant was 45 years of age at EDT

His gross weekly wage was in excess of the statutory maximum of £350.00

Relevant multiplier is increased to 4 weeks pay for the respondent’s failure to follow the Statutory Dismissal and Disciplinary Procedure

Basic Award        £350.00 x 4 = £1,400.00
Less 30% Contributory fault       £   420.00                                           	        £980.00

Compensatory award

These calculations are based on the claimants net pay from the respondent at EDT being £351.49 per week.
Loss of earnings from EDT to 4 January 2010 (date of new employment)           £3,514.90
Loss of difference between previous pay of £351.49 and new
Pay of £300.00 per week for a period of 26 weeks from 4 January 2010,            £1,338.74
Loss of Statutory Rights                                                                                        £   250.00
                                                                                                                               £5,103.64

Less money earned before the claimant took on the new job                               £   450.00
                                                                                                                               £4,653.64
Add 25% of the award for the respondent’s failure to observe the Statutory 
Procedures  £4653.64 x 25% =                                                                             £1,163.41
                                                                                                           Total            £5,817.05
Less 30% deduction for the claimants contributory fault
£5817.05 x 30%                                                                                                     £1,745.11

Total compensatory award                                                                                     £4,071.94
Add the Basic award                                                                                              £    980.00
                                                                                                              Total         £5,051.94
      
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:   23 March 2010, Londonderry and 22 April 2010, Belfast.

Date decision recorded in register and issued to parties: