THE INDUSTRIAL TRIBUNALS

      CASE REF:	2261/15

CLAIMANT:		Paul Culbertson 

RESPONDENT:	Joe Weir Autoparts Ltd  

DECISION
The unanimous decision of the tribunal is that the respondent shall pay the claimant £208.55 in respect of holiday pay and £212.73 in respect of arrears of pay outstanding to the claimant being £421.28 in total.  The tribunal is not persuaded on balance that the claimant was dismissed and accordingly his claims in respect of unfair dismissal and notice pay fail and are dismissed.   

Constitution of Tribunal:

Employment Judge:	Employment Judge Bell

Members:			Mr I Atcheson 
				Mr H Stevenson  

Appearances:

The claimant was represented by Mr C Huddleston, Barrister at Law, instructed by O’Connor & Moriarty Solicitors. 

The respondent was represented by Mr M Hayward, Barrister at Law, instructed by Morris Kempton Solicitor. 

1.	The claimant complained in his claim that he was unfairly dismissed, had not received notice pay, holiday pay and arrears of pay due on termination of his employment by the respondent. 

2.	The respondent in its response disputed that the claimant had been dismissed and resisted the claimant’s claims. 

3.	At hearing both parties agreed that the claimant was entitled to payment from the respondent of £208.55 net in respect of 4.5 days holiday pay accrued due to the claimant and £212.73 net in respect of arrears of pay. 

ISSUES 

4.	The remaining issues before the tribunal were:

(i)	Was the claimant dismissed from his employment?

If so:
(ii)	Was he dismissed in accordance with the statutory dismissal procedure?  If he was not so dismissed, was he automatically or technically unfairly dismissed for breaches of that statutory procedure?

(iii)	Leaving aside the issue of compliance with statutory procedure, was the claimant, in any event, unfairly dismissed?

(iv)	If the claimant was automatically or technically unfairly dismissed for breaches of the statutory procedure would following that procedure have made any difference and, if so, what sort of difference?

(v)	If the claimant was automatically unfairly dismissed or ordinarily unfairly dismissed, did the claimant contribute to that dismissal?  If so what was his percentage contribution? 

(vi)	If the claimant was automatically unfairly dismissed or ordinarily unfairly dismissed, what is the appropriate remedy?

(vii)	Did the respondent give the claimant proper notice?

EVIDENCE

5.	The tribunal considered the claim, response, agreed bundle of documentation, witness statements and oral evidence from the claimant and Mrs Ruth Weir, Director of the respondent company.

FINDINGS OF FACT 

6.	The claimant was employed by the respondent as a shop assistant at its auto parts store from 27 May 2010 until 24 June 2015.  The claimant was paid £243.75 gross, being £212.73 per week.

7.	Mrs Weir in the course of the claimant’s employment, after being informed by him that he had received an offer of a better paid job, agreed to permit the claimant to display and sell some of his own electronic ‘e-cigarettes’ in the respondent’s shop.  Initially the claimant was given a small part of the respondent’s counter to use for display purposes and later Mrs Weir allowed him the use of a glass display cabinet. 

8.	At approximately 9.10 am on the morning of 24 June 2015, after the claimant entered his work premises by a side door because the front shutters were still closed, Mrs Weir expressed her annoyance to him that she could not open the front shutters to the shop by herself due to a bad knee and that she considered him to be late.  

9.	Later that morning Mrs Weir’s son Joseph who also worked in the business, but was off work that day, came in to provide cover in the shop for approximately 30 minutes while his mother went out to do a message in town. 

10.	Whilst the claimant disputed that he had displayed more than one e-cigarette sign and removed the respondent’s stock from shop shelves without permission in order to display his e-cigarettes, the tribunal are satisfied in any event on Mrs Weir’s own evidence that she had become annoyed about the number of signs displayed and amount of space being taken up in the shop by the claimant’s e-cigarettes and felt that the claimant was in her words ‘making a fool out of her’.

11.	On Mrs Weir’s return to the shop after doing her message on 24 June 2015 Mrs Weir remonstrated with the claimant that the shop looked more like an e-cigarette shop than an auto part store, she removed one of the claimant’s e-cigarette signs from the shop window and again scolded the claimant for having been late for work that morning with which he took issue. 

12.	On balance, supported by the text conversation that followed between Mrs Weir and the claimant, the tribunal find that in response to Mrs Weir’s scolding, the claimant in a temper responded ‘….I will have all my stuff out of here in 10 minutes’ and ‘I’m not going to listen to your rant.’  The claimant then left the shop, drove his car onto the footpath in front of the shop and proceeded to pack all of his stock into boxes which he put into the back of his car. 

13.	It was in dispute whether the claimant after returning from packing up his display was then informed by Mrs Weir that she was ‘getting his P45’, that he asked was he being sacked and that Mrs Weir confirmed to him that he was.  The respondent however contended that it was the claimant who when packing up his display shouted at Mrs Weir to ‘get my P45’, that Mrs Weir told him she would have to request it from their accountant and that the claimant became continually more aggressive towards her demanding his P45.  Mrs Weir put to the claimant that she did not believe he had been offered a higher paid job a few weeks before but had just been trying to get a pay increase from her to which he responded ‘Yes I have, and that’s where I’m going now.  I’m not staying in this s****hole[sic]’.  It was common case that Mrs Weir then went to the office, called the accountant and requested the claimant’s P45, came back out and informed the claimant that his P45 would be in the post, shortly after which the claimant left the premises and did not return.  On balance the tribunal considers the respondent’s evidence as more consistent and probable and that Mrs Weir phoned the accountant to request the claimant’s P45 in response to the claimant’s request for it.  

14.	In a text message sent by Mrs Weir to the claimant on 26 June 2015 seeking assistance as to the whereabouts of some money she had set down on 24 June 2015 she stated ‘…..When you were packing on wed, I had just took Tuesdays money out of the till and set it at the computer.  U shouted at me to get your p45.  I said ok and went to the office to phone the accountant…[sic]’ 

15.	In a text message on 29 June 2015 the claimant responded to Mrs Weir ‘…I said I would remove my e cigs from ur cabinet in 10 mins, because after u took my sign out of window and started ur rant that I was late, u said do I want my p45.  So I left because u said u would post it out are u dismissing me?  What grounds etc I would like any holiday pay salary I’m owed….. [sic]’ 

16.	Mrs Weir sent a text to the claimant on 30 June 2015 in which she stated ‘I had every right to scold you for being late.  I had every right to scold you for damaging my property by dumping it on the floor.  You left of your own accord…..’  

17.	The claimant commenced a new job with LMK Transport on 6 July 2015 as a driver at £340 net per week but was made redundant on 27 July 2015.

RELEVANT LAW 

18.	Circumstances in which an employee is dismissed are set out in Article 127 of the Employment Rights (Northern Ireland) Order 1996, these include where the contract under which he is employed is terminated by the employer.

19.	Under Article 126 of the 1996 Order an employee has the right not to be unfairly dismissed by his employer.

20.	Article 118 of the 1996 Order provides for the minimum notice to be given by an employer to an employee to terminate the contract of employment. 

21.	Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract of employment, or any other contract connected with his employment, before an industrial tribunal if the claim arises out of or is outstanding on termination of his employment.

22.	Article 45 of the 1996 Order provides for a worker’s right not to suffer unauthorised deductions from wages by his employer.  A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.

APPLICATION OF THE LAW TO THE FACTS FOUND RELEVANT TO LIABILITY

23.	The key issue before the tribunal was whether the claimant was dismissed.  Where a dismissal is in dispute the burden of proof to show that a dismissal occurred falls on the claimant.  Where the tribunal is unable to make a decision on the facts as to whether there was a dismissal in law, the case can be determined on the basis of the onus of proof. 

24.	It was submitted on behalf of the claimant that Mrs Weir used unambiguous language in informing the claimant that he ‘was getting his P45’ which would have been clear to a reasonable listener and taken at face value implied that the claimant had been dismissed.  On the evidence before it the tribunal is not persuaded on balance that Mrs Weir used the unambiguous words alleged that she was getting the claimant his P45 or that on being asked if this meant he was being sacked that she told the claimant that he was, this account being inconsistent with the claimant’s later text message to Mrs Weir in which he stated ‘.. u said do I want my p45.  So I left because u said u would post it out are u dismissing me?...’            

25.	The respondent contended that the subject language, that the claimant ‘was getting his P45’, was not said, but that as a result of the discussion that had occurred between Mrs Weir and the claimant about lateness and stock that the claimant had lost his temper, cleared his belongings out of the shop and left in circumstances which could be nothing other than a resignation and the claimant had failed to make out his case on the balance of probabilities that he was dismissed.

26.	On the evidence before it and facts found the tribunal is not persuaded on balance that the claimant’s contract of employment was terminated by the respondent in the unambiguous language alleged or that a dismissal in law occurred caused by the respondent.  The tribunal is not persuaded that it is more probable than not that the claimant was dismissed and finds that the claimant fails on the burden of proof.  In the absence of a finding of a dismissal in law the claimant’s unfair dismissal complaint and claim for notice pay fail and are dismissed.  The claimant accepted at hearing figures put by the respondent as being outstanding to him in relation to holiday pay and arrears of pay and no further issue remains to be determined by the tribunal. 

CONCLUSION

27.	The tribunal finds that the claimant is due payment from the respondent of £208.55 in respect of holiday pay and £212.73 in respect of arrears of pay agreed as outstanding.  The tribunal is not persuaded on balance that the claimant was dismissed by the respondent and accordingly his claims in respect of unfair dismissal and notice pay fail.

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

Employment Judge:

Date and place of hearing:  1 March 2016, Belfast.	

Date decision recorded in register and issued to parties: