Stewart v Dunlop [2003] NIFET 446_99 (14 April 2003)


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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Stewart v Dunlop [2003] NIFET 446_99 (14 April 2003)
URL: http://www.bailii.org/nie/cases/NIFET/2003/446_99.html
Cite as: [2003] NIFET 446_99

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    FAIR EMPLOYMENT TRIBUNAL

    CASE REF NOS: 00446/99FET,

    04578/99UD,

    04579/99SD

    APPLICANT: Paul Stewart

    RESPONDENT: Peter Dunlop

    DECISION

    The unanimous decision of the Tribunal is that -

    (a) the complaints of unlawful discrimination on the grounds of religious belief and gender are dismissed, the applicant having decided not to proceed with them.

    (b) the applicant was unfairly dismissed but that he contributed to that dismissal by his actions.

    (c) the respondent shall pay to the applicant the compensation set out in paragraph 7 below which is reduced by 25% in respect of the applicant's contribution to his own dismissal.

    APPEARANCES:

    APPLICANT: Mr B McKee, Barrister-at-Law, appeared for the applicant instructed by Tony Bergin, Solicitor.

    RESPONDENT: The respondent appeared without representation.

  1. The reasons for these decisions of the Tribunal are given in summary form.

  2. There was no dispute that the applicant was dismissed for a reason relating to his conduct which is a fair reason for dismissal. The only question therefore was whether or not, in all the circumstances, the respondent acted reasonably in treating that reason as sufficient reason for dismissal. With considerable sympathy for the respondent, we have to say that he did not.

  3. The applicant worked some four years with the respondent including one as an apprentice. In 1998 he received a formal written warning for throwing a firework into a room where another employee was working thereby causing him considerable distress. We have no reason to disagree with the respondent when he says that he could have summarily dismissed the applicant for such gross misconduct but instead he decided to retain him and issue a formal written warning to stay on his file for 12 months. Within that 12 month period the respondent found three faults with the applicant, namely

    4. (1) disobedience to an order which was then reluctantly obeyed.

    (2) refusal to go to the location where he was required, and

    (3) finally, just before his dismissal, showing excessive time on his time sheet - some 15 minutes per day.

  4. We found the respondent to be a reliable witness who sought to live with the applicant's, at times difficult, attitude to his work. On the applicant's own reaction to the respondent's evidence, we have little doubt that there was substance to the respondent's allegations set out above at (1) and (2). The investigation of these matters was adequate in the circumstances but we do not think that even when added to the warning for the firework incident that they would have justified dismissal. Be that as it may, there was serious neglect of the respondent's own disciplinary procedures.

  5. The 'straw that broke the camel's back' was the time sheet entries. We really cannot accept that the respondent's investigation of this matter and the procedure he employed thereafter were reasonable. Indeed the investigation was woefully inadequate given that an accusation of dishonesty was involved and the disciplinary procedure was, in substance, ignored. Even allowing for the nature of the industry and resources of the organisation, we have to say that the respondent's treatment of the applicant at this stage was intolerable under employment rights legislation. Consequently we find that the applicant was unfairly dismissed. Given the history we have recited we have no doubt that the applicant contributed to his own dismissal and we measure that contribution at 25%.

  6. The applicant was dismissed on 1 October 1999 with one week's notice. He commenced as an apprentice painter with the respondent on 30 September 1995 and became a fully-fledged painter in April 1998. At the time of his dismissal he was earning £230 pw gross and £180 pw net. From October 1999 until February 2000 he was unemployed and receiving job seekers allowance and similarly from August 2000 to December 2000. No other loss was claimed. Without precise dates we calculate the loss periods from 29 October 1999 to mid February 2000 and from mid August to mid December 2000.

  7. Compensation is as follows -

    8. (a) Minimum notice 4 weeks @ £180 pw £720

    (b) Basic Award Compensation

    2 weeks' pay @ £220 maximum pw =

    £440 less 25% £330

    (c) Compensatory Award

    31 weeks @ £180 pw =

    £5,580 less 25% £4185

    Total £5235

  8. The monetary award is £5235

    9. Prescribed element £4185

    Balance £1050

    Prescribed Element

    Periods 29 October 1999-11 February 2000

    15 August 2000-15 December 2000

    This is a relevant decision within the meaning of the Industrial Tribunals (Interest) Order (NI) 1990.

    ____________________________________

    J E MAGUIRE

    President

    Date and place of hearing: 14 April 2003, Belfast

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIFET/2003/446_99.html