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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gormley v Leonard McGrath, Building Cont... [2008] NIIT 457_08IT (23 September 2008) URL: https://www.bailii.org/nie/cases/NIIT/2008/457_08IT.html Cite as: [2008] NIIT 457_8IT, [2008] NIIT 457_08IT |
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CASE REF: 00457/08
CLAIMANT: Alan Gormley
RESPONDENT: Leonard McGrath, Building Contractor
The unanimous decision of the tribunal is that the claimant was dismissed and that the dismissal was automatically unfair because the respondent failed to comply with the requirements of the statutory dismissal procedure. However, the Tribunal has reduced any compensation payable by 100% on the basis of the claimant's contributory fault and no compensation is therefore payable.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Mr J Nicholl
Mr J McDonnell
Appearances:
The claimant was represented by Mr Peter McCorkell, Barrister at Law instructed by Fahey Corrigan Solicitors.
The respondent was represented by Mr C Flanaghan, Barrister at Law instructed by McHugh Lynam Solicitors.
Relevant Issues
(i) Did the claimant resign or was he dismissed?
(ii) If the claimant was dismissed;
(a) When was he dismissed?
(b) Was the appropriate statutory dismissal procedure completed? If not was the non-completion of that procedure mainly attributable to the respondent?
(c) Did the claimant's conduct contribute to his dismissal, and if so, to what extent?
Relevant Law
"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if
(a) One of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to this dismissal;
(b) The procedure has not been completed, and
(c) The non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1) failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4) (a) as by itself making the employer's actions unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure;
(3) For the purpose of this Article, any question as to the application of a procedure as set out at Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to Regulations under Article 17 of that Order".
"(1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.
(2) If, in the case of proceedings to which this Article applies it appears to the Industrial tribunal that;
(a) The claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) The statutory procedure was not completed before the proceedings were begun, and
(c) The non-completion of the statutory procedures was wholly and mainly attributable to failure by the employee –
(i) To comply with the requirement of the procedure or
(ii) To exercise a right of appeal under it,
It shall, subject to paragraph (4) reduce any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so reduce it by a further amount, but so as to make a total reduction of more than 50%.
(3) If in the case of proceedings to which this Article applies, it appears to the Industrial Tribunal that;
(a) The claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) The statutory procedure was not completed before the proceedings were begun, and
(c) The completion of the statutory procedures was wholly and mainly attributable to failure by the employer to comply with the requirement of that procedure,
It shall subject to paragraph (4), increase any awards which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.
(4) The duty under paragraph (3) to make a reduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase by that percentage unjust or inequitable, in which case the Tribunal may make no reduction or increase or a reduction or increase at a lesser percentage as it considers just and equitable in all the circumstances.
(5) Where an award falls to be adjusted under this Article and under Article 27, the adjustment under this Article shall be made before the adjustment under that Article.
"Where and award of compensation for unfair dismissal falls to be
(a) reduced or increased under Article 17 of the Employment (Northern Ireland) Order 2003 (non-completion of statutory procedures); or
(b) Increased under Article 27 of that Order (failure to give statement of employment particulars),
The adjustment shall be in the amount awarded under Article 152(1)(b) and shall be applied immediately before any reduction under Article 157(6) or (7)."
Article 156(2) of the 1996 Order provides as follows;
"Where the tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."
Article 157(6) of the 1996 Order provides as follows;
"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
Regulation 3 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulation (Northern Ireland) 2004 provides as follows:
"3(1) Subject to paragraph (2) and Regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.
(2) Subject to Regulation 4, the modified dismissal procedures applies in relation to a dismissal where;
(a) The employer dismissed by employee by reason of his conduct without notice,
(b) The dismissal occurred at the time the employer became aware of the conduct or immediately thereafter,
(c) The employer was entitled, in the circumstances to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice and,
(d) It was reasonable for the employer, in the circumstances to dismiss the employee before enquiring into the circumstances in which the conduct took place.
But neither of the dismissal and disciplinary proceedings applies in relation to such a dismissal where the employee presents a complaint relating to the dismissal to a Tribunal at a time when the employer has not complied with paragraph 4 of the Schedule 1."
Relevant Facts
Decision
(1) The intention of the speaker of the relevant words is not the relevant test.
(2) If the words are unambiguous they must be given effect by the Tribunal (subject to any subsequent withdrawal);
(3) If the words are ambiguous then the Tribunal must consider all the surrounding circumstances and decide, on the basis of an objective test, what the words would have meant to a reasonable listener."
"(i) The Tribunal must take a broad commonsense view of the situation;
(ii) That broad approach should not necessarily be confined to a particular moment not even the moment when employment is terminated;
(iii) What has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and
(iv) The employee culpability or unreasonable conduct must have contributed to or played a part in the dismissal."
Chairman:
Date and place of hearing: 28 August 2008, Enniskillen.
Date decision recorded in register and issued to parties: