THE INDUSTRIAL TRIBUNALS

CASE REF:	223/09

CLAIMANT:		Michael Walsh	

RESPONDENT:	McAloon Construction Ltd	

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The reasons for that decision are detailed below. The compensation payable by the respondent to the claimant is £37,671.74

Constitution of Tribunal:
Chairman:	Mrs M. Watson	
Members:	Mr P. Killen	
                      Mr R. Gunn

Appearances:
The claimant represented himself
The respondent was represented by Mr Stephen Mc Aloon, Managing Director

Contentions of the Parties
1.	The claimant in this case claimed that he had been unfairly dismissed by Mr McAloon, Managing Director of the respondent company.  The respondent contended that the dismissal was a summary dismissal for a fair reason, gross misconduct. 	

Sources of evidence

2.	The tribunal was provided with a bundle of documents prepared by the respondent’s former legal representative. In addition, the claimant provided copies of letters that he had written and others which had been sent on his behalf to the respondent’s solicitor and copies of some payslips.

3.	The claimant and Mr McAloon both gave oral evidence.  Mrs Nuala White who is a Director of the respondent company and who was in charge of the company office also gave oral evidence. She provided the tribunal with a written account of the meeting she had with the claimant following his dismissal.  

4.	The tribunal did not find the oral evidence to be of great assistance. The tribunal were aware that Mr McAloon had suffered a stroke 12 days after the claimant’s dismissal. Both Mr McAloon and Mrs White appeared to the tribunal to be very angry with the claimant. The claimant insisted that he had not been provided with any information in relation to the serious matters alleged by Mr McAloon to have been the reason for his dismissal. The tribunal had to intervene on occasions because there were verbal exchanges between Mr McAloon and Mr Walsh. Each of the witnesses had to be drawn to give their evidence. Mrs White’s evidence differed to that of Mr McAloon with regard to whose information had led to the phone call to the claimant. 

5.	Generally, the tribunal preferred the evidence of the claimant whose version of events never really changed from his initial letter to the respondent while that of the respondent had grown from an allegation that the claimant was telling lies about the company to accusations of dishonesty and assault. 

6.	Throughout the hearing, the atmosphere was extremely strained and tense. As a result, the tribunal had to rely to a large extent on the material in the bundles of documents, as well as the replies given to questions from the tribunal of the witnesses, in order to reach its determination on the issue in dispute. 

7.	At the conclusion of the oral evidence, the tribunal retired and considered all the evidence before it and came to a decision. The decision was that the claimant had been unfairly dismissed due to the failure of the respondent to follow the statutory dismissal and disciplinary procedures. This failure was wholly attributable to the respondent and the tribunal considered that in all the circumstances of this case, an uplift of 25% should be applied. 

Findings of fact

8.	The claimant was employed by the respondent company on its construction sites as a foreman from March 2004 until his dismissal by a telephone call on Thursday 
           6 November 2008. The dismissal was confirmed the next day when the respondent ordered the claimant to leave the site and ordered him to return the works van to the yard. 

9.	The claimant sought advice from the CAB and wrote to the respondent on 
           19 November 2008. This letter is headed ‘Grievance and appeal against dismissal’ and then refers to the ‘Dispute Resolution Procedures 2004.’
10.	The letter states that the claimant wished to appeal against his dismissal which he believed was unfair. It states that the respondent “alleged that I was spreading rumors (sic) that you were going bankrupt. this is whole unfounded.” (sic)

11.	 The grievance raised related to the respondent’s alleged failure to pay notice or redundancy pay. According to the claimant, the reason that he had been dismissed was to avoid paying redundancy. The claimant requested an appeal meeting. 

12.	Mr McAloon suffered a stroke on that same date, 19 November 2008 and was admitted to hospital. 

13.	The respondent replied by letter dated 20 November 2008 to give formal notice of dismissal and gave the following reasons;

“(a) It has been reported that you approached a sub-contractor seeking remuneration for your own benefit by guaranteeing that the said sub-contractor would be awarded the tender for the site.

   (b)  It is reported that you have made defamatory remarks about the Company to     a number of sub-contractors indicating that if they continued working they would not get paid.

(c)	On several occasions you have been warned about abusive behaviour towards
      other employees and to sub-contractors and despite said warnings this       behaviour continued to persist.

Based on the evidence presented, the Company considers all allegations to be substantiated. In view of the dishonest nature of your behaviour the Company would consider same to amount to gross misconduct thereby resulting in the decision being made to summarily dismiss you. I therefore write to confirm your dismissal from the Company with effect from 6 November 2008. “

14.	The letter contained the claimant’s P.45 and confirmed the issue to him of holiday pay. His grievance letter with notification of appeal was acknowledged and he was invited to attend a meeting on 2 December 2008. 

15.	As stated above, Mrs White had provided the tribunal with a written account of that meeting. This account begins by stating that Mrs White had asked another member of staff to take minutes because the claimant had arrived at the meeting with a Dictaphone. The tribunal noted that at Paragraph 5.2 of the Response Form, the respondent’s solicitor had stated that the claimant had attended the meeting ‘with recording equipment and the Claimant became uncooperative when the respondent requested that the Claimant did not use said equipment.’  The written note does not reflect this statement.  Most of the first page is taken up with Mrs White enquiring about the tax disc from  the van, a fuel card and  a diary. The last paragraph begins, ‘Mick went on to mention a phonecall he received from Stephen on Thursday 6 November...’  This was the call during which the claimant was dismissed yet it was not the first item discussed as would be expected at an appeal hearing.

16.	 The claimant gave his version of the content of the telephone call and told Mrs White that he took the allegations very seriously. He said that the following day when he arrived at the site, Mr McAloon told him he was sacked but when he asked who had accused him of spreading rumours, he was told by Mr McAloon that he could not tell him.  Mrs White’s reply was, “Stephen is not here to defend himself, but he is a very straight man.”

17.	The claimant went on to explain that subcontractors had phoned him at home and said that even though he had signed off their work they had not been paid. Mrs White asked for names and was told Tom Clarke. Mrs White said that the reason Mr Clarke had not been paid was due to the claimant telling her that money was to be held back because of unfinished work and missing items. Mrs White then told the claimant “You can turn off that Dictaphone and I will see you in court.” The meeting ended acrimoniously shortly afterwards. 

18.	 The tribunal noted that this meeting had not referred to the reasons for dismissal set out in the earlier letter and did not give any details of the allegations made or the names of those making them. There was no reference to ‘the evidence presented’ or the several occasions of abusive behaviour towards others or the warnings that had been given. For these reasons, the tribunal find that this meeting was not in the nature of an appeal meeting. It did not conform in any respect with the format or content for such meetings, even the Modified Procedure, contained in Schedule 1 of the Employment (Northern Ireland) Order 2003.

19.	The response to the originating application was lodged in early March 2009 and this was followed by a Request for Additional Information and a Notice for Discovery sent to the claimant in early April. The claimant’s reply denied that he had spread any rumours, denied that he had taken any money from subcontractors and stated that it was not his responsibility to deal with them. He had been asked by Stephen McAloon to find tradesmen to work on the site and the subcontractors  gave him, the claimant, information regarding payments.  The claimant said he had  not given false information as alleged by the respondent. He also provided extracts from his personal diary relating to the events of 6 and 7 November 2008 and provided copies of wages slips he had received from a short term of employment and gave details of the Job Seekers Allowance he was receiving. 

20.	The claimant had also given the tribunal a copy of a letter he had written to the respondent’s solicitor on 8 June 2009. This refers to their letter of 27 May 2009 which was not in either bundle given to the tribunal. The claimant’s letter states ‘There were never any verbal or written warnings ever at any time through my employment in McAloon Construction. This was and never had been an issue.’

21.	The claimant subsequently went to see a solicitor who sent notices for particulars and discovery dated 9 July 2009. These asked the respondent to provide specific and detailed information about the allegations that had reportedly been made to the respondent that had led to the claimant’s dismissal and discovery of relevant documentation, including the claimant’s personnel file. In response, some names were given but several replies stated ‘This is a matter of evidence’. 

22.	 With regard to the abusive behaviour, the replies provided were:-

(a)	  At various times on a continuous basis during the course of the        Claimant’s employment with the Respondent.
(b)	 This is a matter of evidence. Without prejudice to the foregoing the relevant parties include Eugene Beggan, Gareth McKeever, Aiden Walsh and Ryan Walsh

(c)	  Both verbal and physical abuse

(d)	  This is a matter of evidence

(e)	  Precise dates unknown

(f)	  Oral

(g)	  No written evidence recorded.

23.     These answers were provided in response to the usual request to specify when the   alleged incidents took place, details of the alleged behaviour and details of the alleged warnings etc. 

24.  The respondent’s bundle contained these replies but the only documentation   discovered was apparently the claimant’s application form and his employee’s handbook. There was no personnel file and no disciplinary records included. The claimant told the tribunal that he had never seen these replies. He had not returned to see his solicitor as he could not afford to do so.     

25.   The tribunal found the replies to the notice for particulars and documentation    discovered was totally inadequate. 

26.    Mr McAloon told the tribunal that the claimant had been verbally and physically    abusive to employees and had left an employee, Eugene Beggan requiring hospital treatment. He said that Mr Beggan had an eye injury which required several stitches. This was said to have taken place shortly after the claimant started working for him. When asked what he had done as a result of this, Mr McAloon said he ‘had words’ with the claimant. This incident was also referred to by Mrs White in her evidence when she told the tribunal that she had records relating to Mr Beggan’s alleged injury in the claimant’s personnel file which she had not brought with her because she had been advised that it was not relevant. 

27.    The claimant denied that any such incident had taken place. He knew Mr Beggan and had seen him on site but had never quarrelled with him. He denied he had ever been given any warnings of any description during his employment by the respondent. Two of the names provided by the respondent were his sons. The claimant denied they had walked off site because of his abusive behaviour as alleged by Mrs White.

28.     The only agreement between the parties related to the incidents of 6 and  
  7 November 2008. For whatever reason, the respondent telephoned the claimant and told him to collect his belongings. In other words, he was sacked. This was confirmed by the letter to the claimant dated 20 November 2008. The claimant was also told he was sacked on Friday 7 November 2008 and told to return the works van. Thereafter, the nearest attempt to comply with statutory requirements relating to dismissal was the letter dated 20 November when written reasons were given and he was invited to a meeting. As stated at paragraph 18 above, the tribunal found that this meeting did not constitute an appeal or a hearing of the claimant’s grievance.  In such circumstances, the tribunal determined that the only decision that should be made was one of automatic unfair dismissal under Article 130A of the Employment Rights (Northern Ireland) Order 1996 (as amended). The parties were so informed  and  told that the reasons for that decision and the calculation of the compensation  payable would be forwarded as soon as possible.

Compensation.

29.	The claimant was over 41 years of age throughout his 4 years of employment by the respondent. His gross pay was £ 658.00 per week, £486.67 net. His date of dismissal was 6 November 2008 and the hearing took place on 11 March 2010, a period of 70 weeks.  (An earlier hearing date was postponed on the application of the respondent due to Mr McAloon’s health.) Apart from a short period in March/April 2009 when his total earnings were £824.50, the claimant had been in receipt of £60.50 per week Job Seekers Allowance. The cap on the weekly pay at the date of dismissal was £330. Using this information, the compensation was calculated as follows;-

(i)     Basic Award
        Entitlement is    6 x £330 =                                                   £1980.00

(ii)    Compensatory Award

        Weekly net pay before dismissal   =                                      £ 486.67 
        Weekly Benefit =                                                                    £   60.50
        Weekly loss   =                                                                       £ 426.17
        Period of loss  
        70 weeks less 3 weeks worked     = 67 weeks
      
        Total loss for period = £426.17 x 67 =			   £28,553.39   

        Uplift under Article 17 of the Employment (Northern Ireland) Order 2003 = 25%
 
  (iii) Amount of uplift   =  						   £  7,138.35                       

Total compensatory award   (i) + (ii) + (iii) =                               £37,671.74

The tribunal did not include any award for loss of statutory rights or future loss. 

30.     This is a relevant decision for the purposes of the Industrial tribunal (Interest) Order 1990.

31.     The award is subject to the recoupment provisions. 

32.    The dates of the prescribed element are 17 April 2009 until 11 March 2010 [except for the 3 week period w/e 27 March 2009 to 10 April 2009] 

The prescribed element of the award is £3,025.00.

Chairman:

Date and place of hearing: 11 March 2010, Enniskillen.		

Date decision recorded in register and issued to parties: