THE INDUSTRIAL TRIBUNALS 

CASE REF:	1773/04

	

APPLICANT:	Colin Stobo			

RESPONDENT:	Stothers (M & E) Ltd	 

DECISION 

The unanimous decision of the tribunal is that the applicant was unfairly dismissed but that he contributed to his dismissal.  The tribunal finds the extent of his contribution to be twenty five per cent.  The tribunal also found that the applicant’s dismissal was procedurally unfair, but found that if a fair procedure had been adopted there was little to no likelihood that this would have changed the decision to dismiss the applicant.  The respondent is ordered to pay the applicant the sum of £11,993.04 in compensation.  

Appearances:
The applicant was represented by Mr M Potter, Barrister-at-Law, instructed by Basil Glass & Co., Solicitors.  
The respondent was represented by Peninsula Business Services Limited.

SUMMARY REASONS	

Issues before the Tribunal

The applicant contended that he was unfairly dismissed.  The respondent admitted that the applicant was dismissed but contended that he was fairly dismissed by reason of his conduct in operating a competing business.

Analysis of Evidence

In general the tribunal preferred the evidence of the applicant to the evidence given on behalf of the respondent, because the tribunal found that the contentions of the respondent were not supported by its evidence or the facts of the case.  The tribunal found the following facts:-

1.	While working for the respondent, the applicant set up a business called Boilertec which was operating in the domestic section of the plumbing market.  The respondent is a firm which has a large number of institutional clients and while it might have carried out the same type of work, the end user was different in that it was not a situation where the respondent was sending out people to fix leaking taps to individual domestic households.  Instead, the respondent’s plumbers were going to fix leaking taps in housing association properties.  A short period after the applicant set up his business, it came to the attention of the managing director and he suspended the applicant pending an investigation.  The applicant was subject to disciplinary action on the charge of operating a competing business.  He was dismissed and his subsequent appeal to the managing director, Mr Marley, (the person who had suspended him) was unsuccessful.  

2.	Even on the respondent’s own evidence, the applicant did not constitute any competition for the respondent at the time of dismissal.  

The tribunal did not find any evidence of the applicant competing with the respondent.

3.	There was no evidence of any restraint of trade clause in the applicant’s contract of employment.  

4.	The tribunal finds that the applicant did take telephone calls during the working day of his employer;  he did put an advertisement in Yellow Pages;  he did print business cards;  obtain CIS Certification and opened trade accounts with various suppliers.

5.	The tribunal is satisfied that the reason for the applicant’s dismissal was his conduct in setting up a competing business.  However, the tribunal does consider that the dismissal was not fair.  The reason for finding this is that there was no evidence that the applicant was in active competition with the respondent.  The tribunal also found no evidence of the respondent being in any way involved in the domestic market, save and except for when domestic repairs were required by an institutional client such as a housing association.  Overall the tribunal found that the respondent’s behaviour could not be said to be within the band of reasonable responses of a reasonable employer acting reasonably in the situation in which it found itself.   

6.	The tribunal also found that the dismissal was procedurally unfair.  The applicant was suspended by Mr Marley, the Managing Director.  His disciplinary hearing was conducted by Mr Preston, but his appeal hearing was once again conducted by Mr Marley.  The tribunal found that it was more likely than not on the balance of probabilities that Mr Marley would not be coming to the applicant’s appeal with a neutral mind.  However, the tribunal also found that even if a fair procedure had been adopted, there was little to no likelihood that it would have altered the eventual decision to dismiss the applicant.  As such, the tribunal does not consider it necessary to attach a percentage to this likelihood as at best it would be five per cent, and it is settled law that for a percentage of this nature, there is no need to actually deduct such a small percentage from the overall computation of compensation.  

7.	The tribunal found that the applicant contributed to his dismissal.  The tribunal found that in taking telephone calls on the respondent’s time, the applicant was behaving in a culpable and blameworthy fashion in that he was effectively stealing time from the respondent.  It was not reasonable to treat the “competition” posed by the applicant as a sufficient reason for his dismissal.  The tribunal also found that the alleged misconduct concerning “losing” the time spent by sub-contractors on Boilertec business in the overall work sheets of the respondent was at best only supported by hearsay evidence and as such the tribunal declines to attach any weight to this allegation.  The tribunal has accordingly attached a percentage contribution level of twenty five per cent to the applicant’s culpable and blameworthy conduct in stealing his employer’s time.

8.	The tribunal finds that the applicant is entitled to be compensated for being unfairly dismissed and that compensation is assessed as follows:-

(a)	Basic Award

The tribunal found that as the applicant’s weekly gross wage was £384.84 the statutory maximum applicable at the time of his dismissal (£250.00) was used in the calculation.  The tribunal found that the applicant had one completed year of service at the time of his dismissal and the appropriate multiplier was one.  Accordingly:-

£250.00 x 1x 1 =				£250.00

(b)	Compensatory Award

(i)	Immediate loss.

The tribunal finds that the immediate loss period in this case is from 5 March 2004 – 4 March 2005 being fifty two weeks.  The tribunal also found that as the applicant did not claim any benefits whatsoever, no question of recoupment arises.  The parties agreed that the applicant had suffered a loss of £190.24 per week in respect of his salary set out as follows:-

£377.16 – being net weekly wage including bonus in the respondent’s employment minus £186.92 – being net weekly post dismissal earnings.  Difference - £190.24.

(ii)	The tribunal also found that the applicant had suffered the loss of his employer’s contribution to his pension which was agreed to be £39.00 per month, accordingly:-

Loss of Wages			Loss of Pension

£190.24 x 52 	=	£9,892.48  	£39.00 x 12	=	£   468.00
				
Immediate loss period sub total is 				£  9,892.48 
											£10,360.48

(c)	Loss of Statutory Rights

	This figure was agreed by the parties as being £200.00.

(d)	Future Loss

The tribunal found that it would take the applicant approximately six months to generate sufficient income from his business to match the income lost from his employment.  Accordingly the future loss award is computed as follows:-

	Net Weekly Loss 			Monthly Pension Contribution
						from employer

	£190.24 x 26   =      £4,946.24 	£39.00 x 6 	=	£     234.00

	Sub total for future loss				=	£  5,180.24

(e)	Summary of Award

Basic Award		          		£     250.00

Compensatory Award (and
Immediate Loss figure)		£10,360.48

Loss of Statutory Rights		£     200.00

Future Loss				£  5,180.24 

Award		 =			£15,990.72

Less 25% contributory
  fault			=		£  3,997.68

 Total Award	=		£11,993.04
					========

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

Chairman:

				                                 
Date and place of hearing:	24 November 2004 and 22 February 2005, Belfast.	
				25 January 2005

Date decision recorded in register and issued to parties: