THE INDUSTRIAL TRIBUNALS  

CASE REF:    2783/11 

CLAIMANT:	James Thomas John Clarke

RESPONDENT:	Peter Murphy 

DECISION

The unanimous decision of the tribunal, as announced to the parties at the hearing, is that the claimant was unfairly dismissed and is entitled to compensation and unpaid wages and notice pay, as set out below in the Schedule hereto, amounting to £6,011.20

Constitution of Tribunal:

Chairman:	Mr S M P Cross

Panel Members:	Mr J Law
	Ms M Mulligan

Appearances:

The claimant appeared in person and was not represented.

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

1.	The claimant, who was born on 1 October 1977, was employed by the respondent as a store man from October 2006.  His gross weekly wage was £360.00, giving him a net take-home pay of £300.00 per week.

2.	The claimant had arranged with the respondent’s wife Mrs Murphy, that he would take a week’s holiday from Friday, 5 August 2011.  On the night of 8 August at 10.15 pm the claimant answered a knock at the door of his house and was met by two masked men who demanded the keys of the respondent’s van, which the claimant had bought home from work on the previous Friday night.  The van was sitting in the road outside the claimant's house.  When the claimant refused to hand over the keys, one of the masked men produced a pistol and said, that if the keys were not handed over, then the claimant would be shot in the knee.  On this threat being made, the claimant immediately handed over the keys and the van was taken by the masked men and was later found burnt out in an adjoining street.  A few minutes after this incident occurred, the claimant received a call from a relation stating that one of Murphy's vans was burnt out near his house.  The claimant said that he expected that this would be his van.  He immediately telephoned to Mrs Murphy and explained what had happened.  Her response was, “was there anything in the van?”  This shocked the claimant, who expected, at least some sympathy, about what he had gone through.  However, he explained the situation to Mrs Murphy, who subsequently telephoned back to the claimant to ask if he and his family were all right.

3.	Mrs Murphy telephoned to the police and an investigation started the next morning, when the claimant was interviewed by the police officer responsible for the case.  The claimant heard nothing further from Mr or Mrs Murphy.  Mr Murphy had been in Dublin on the night of the incident and had, on his return on the 9 August, been informed of the situation by his wife.  However, Mr Murphy did not approach the claimant until some days later, when, on the Monday, 15 August, the claimant returned to work.  He was not immediately asked to speak to Mr Murphy but at about 10.00 o'clock was called into the office.  Mr Murphy said that he was going to suspend the claimant.  When asked by the claimant as to whether he would be paid, Mr Murphy, after some hesitation, stated that the suspension would be on full pay.  At the end of that week, on Friday, 19 August, the claimant called to the office and was given his pay cheque.

4.	At the end of the following week, on Friday, 26 August, when the claimant again called into the office, he was not given his pay cheque, but was told it was not available at that time as it had to be issued by the pay clerk.  The claimant was then spoken to by Mr Murphy, who asked him for his keys for the premises.  There was some dispute as to what happened next, Mr Murphy stated that the claimant threw the keys across the room at him and his son-in-law.  The claimant however denies that he threw the keys at Mr Murphy.  The claimant states that he handed over the keys to Mr Murphy's son-in-law on an occasion, a day or so later, when Mr Murphy's son-in-law came to his house to get the keys.  This was one of the few differences in the evidence of the parties and the tribunal makes no decision as to which version was correct as nothing turns on the point.

5.	On Wednesday, 31 August the respondent’s accountant came to the claimant’s home and gave the claimant a letter of dismissal.  The claimant wrote a letter of grievance to the respondent on 8 September 2011, but received no reply.

6.	There was disagreement concerning whether or not the claimant was acting within the terms of his employment in taking the van home after work.  The claimant explained that very often he would have to take the van to Dublin for deliveries and he also required it for other aspects of his work.  He had got into the habit of taking the van home and parking it outside his house.  The respondent stated that although he was allowed to take the van home, the claimant was not allowed to take it home when he was on holiday, as that prevented another employee from making use of the van, whilst the claimant was on holiday.  The respondent gave evidence of an incident some years previously, where the van had been kept at home by the claimant, the claimant was acting within his contract of employment in taking a vehicle home, although possibly it was not very sensible to do so when he was going to be on holiday from a week and a van might be needed.  The respondent had spoken to the claimant, about this matter, at the time of the earlier incident.  The tribunal however find as a fact that it was common practice for the claimant to keep his van at home even when on leave.

7.	The claimant was not paid for his second week of suspension and furthermore, did not receive four week’s pay in lieu of notice in respect of his dismissal.  The claimant was fortunate in obtaining a new post almost immediately, on 9 September 2011, at a net wage of £254.00 per week.  As will be seen in the calculations below the difference in net pay between the two posts amounted to £46.00 per week.

THE LAW

8.	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. In this case the reason for the dismissal would appear to be the conduct of the claimant who did not take sufficient care of the van in his custody, and indeed took the van home against the respondent’s rule, that an employee should not take a van home if going on holiday.

9.	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 his 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 employer is still intent on dismissing the employee he must give the employee a right of appeal.  If the employer 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. 

10.	Article 130A(2) of the 1996 Order states, that if the employer, who fails to follow its own contractual dismissal procedure, (leaving aside for the moment the statutory dismissal procedure), can show that he would have dismissed the employee in any event then the dismissal shall not be considered unfair.  However there is no such statutory relief under Article 130A(2), for an employer who fails to even meet the basic requirements of the statutory dismissal procedure.  In such a case the dismissal is automatically unfair.

11.	There is however one other matter that the tribunal must consider before awarding compensation to a claimant who has been automatically unfairly dismissed under Article 130A.  If the tribunal comes to the conclusion, that despite the unfair treatment on the part of the employer, the claimant would have been dismissed, even if a fair process had been adopted, then under the guidance set down in the case of Polkey  v  AE Dayton Services Limited 1987 [IRLR] 503, (hereinafter referred to as “the Polkey case”), the tribunal must refuse to award any compensation, if the tribunal is satisfied that there was a certainty of such dismissal taking place; or reduce the compensation awarded, to reflect the tribunal’s view of the percentage chance of such dismissal occurring.

12.	If the tribunal is satisfied that the claimant has been unfairly dismissed, then subject to the Polkey case, 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.  If the basic award does not amount to 4 weeks pay then the tribunal has power to increase the amount to equal 4 weeks pay.  In this case the basic award is 4 weeks pay so no increase will apply, (Article 130A(5) of the 1996 Order).

13.	In most cases where an employee brings tribunal proceedings against his employer he must first comply with the grievance procedures set out in Schedule 1 Part 2 of the 2003 Order.  This provides that the employee must notify the employer in writing of his grievance.  However under the provisions of Regulation 6(4) of The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, (“the 2004 Regulations”), these requirements do not have to be complied with in a situation such as the one in this case.  Regulation 6(4) provides that where the employee has ceased to be employed by the respondent and neither of the statutory procedures has been commenced and since the claimant ceased to be employed by the respondent it is no longer reasonably practicable for him to comply with the procedures, then the procedures do not apply.  However in this case the client did write a letter of grievance, but received no reply.

DECISION OF THE TRIBUNAL

14.	The tribunal holds that the claimant, despite having complied with the procedure, is not required to comply with the grievance procedure referred to in paragraph 13 above for the reasons set out in that paragraph.

15.	The tribunal holds that the claimant was dismissed, without the respondent complying with any of the statutory procedures.  He was merely given a letter stating that he was dismissed.  He was given no opportunity to explain his side of the event that lead to the destruction of the van.  He was not afforded a disciplinary meeting let alone any appeal.  This was a dismissal that falls into the category of automatically unfair.  The tribunal does not find that the case warrants any reduction of compensation under the rule in the Polkey case, as there is no evidence before the tribunal that the claimant would have been dismissed, if the respondent had carried out some investigation and followed a proper procedure.  In these circumstances the tribunal awards to the claimant compensation for unfair dismissal as set out in the Schedule below and increases the compensatory award sum by 10% as required by statute.  The tribunal does not increase the award by a greater sum, due to the size of the respondent business and the overall expense to the respondent of this incident.

SCHEDULE

	Compensation for Unfair Dismissal

	Basic award 

	4 weeks pay of £360.00 per week  x  4:                        	£1,440.00

	Compensatory Award

	Loss of difference in pay for 52 weeks at £46 per week:  	£2,392.00

	Loss of Statutory Rights:                                             	   £400.00

	Uplift of the compensatory award of £2792.00 by 10%:	   £279.20

	One week unpaid wages:                                             	   £300.00

	4 week notice pay:                                                       	£1,200.00

	                                                                                         	£6,011.20

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

Chairman

Date and place of hearing:       21 March 2012, Belfast.

Date decision recorded in register and issued to parties: