Baxter vs Cavehill Funeral Services
| Jurisdiction | Northern Ireland |
| Judgment Date | 17 January 2012 |
| Respondent | Cavehill Funeral Services |
| Docket Number | 00113/09IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 113/09
CLAIMANT: Glen Baxter
RESPONDENT: Cavehill Funeral Services Limited
DECISION
The majority decision of the tribunal is that the claimant was not constructively dismissed by the respondent, and his claim is therefore dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Ms M Mulligan
Mr E Miller
Appearances:
The claimant appeared and represented himself.
The respondent’s response had been struck-out.
Background
1. In its decision dated 26 October 2011 a tribunal decided that the response of the respondent, presented to the tribunal on 19 February 2009, should be struck-out and the respondent debarred from responding to the claimant’s claim altogether.
The Claim
2. The claimant claimed that he had been constructively dismissed by the respondent.
The Issue
- The issue before the tribunal was whether the claimant had been constructively dismissed by the respondent
Sources of Evidence
4. The tribunal heard evidence from the claimant and from his General Assistant, Paul Mulligan. The claimant presented no documentation to the tribunal except for a schedule of alleged loss.
Findings of Fact
5. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i) The claimant was a co-founder of the respondent company (“the Company”). His fellow director at all times material to the tribunal hearing was Stephen Love. A solicitor, Sarah Burrows, and her husband Jonathan Smyth, were two shareholders in the company. The claimant held 7,500 £1 shares and had provided loans to the company amounting to £15,000.
(ii) The claimant had negotiated contracts with various Health Trusts on a tendering basis. The company had offices on the Cavehill Road, Belfast. The claimant, however, also had an office at home in which he stored sensitive information pertaining to the tenders with the Health Trusts, including computerised information.
(iii) On or about 3 or 4 January 2008, part of the claimant’s home collapsed under the weight of a snow fall. The documentation in his office was destroyed together with the information stored on the computer. The computer was subsequently recovered but he was unable to retrieve the stored information. He subsequently made an insurance claim regarding the matter.
(iv) Of major importance was the fact that accounts information had to be filed in February/March 2008 with the Company Registry for the year 2007. Failure to do so means that progressive fines are levied ranging from £100, to £200 and, ultimately to £500. The tribunal accepts the claimant’s evidence that he informed his fellow director and shareholders concerning the loss of this vital information. The claimant met with various shareholders and his fellow director at various times to discuss progress in the matter. The accounts system operated by the claimant involved a template being kept on a computer which he updated on a monthly basis and at the end of the relevant year he forwarded the necessary information to the company’s accountant who filed the accounts with the Company Registry. When the claimant resigned on 29 July 2008, the accounts for the year 2007 had still not been filed with the Company Registry. He claimed before the tribunal that this had still not been done as at the date of hearing.
(v) The claimant, who was responsible for the day to day running of the company, acknowledged that he alone was responsible for the preparation of the information required by the accountant, John Marshall, for the Company Registry. He claimed that he was so busy in the months after the roof collapsed in his house, that the reconstruction of the information for the accounts took second place. At the time of his resignation, the claimant claimed that he had obtained information from all necessary sources in order for the accountant to forward the necessary accounts to the Company Registry. However, there is no evidence before the tribunal that the claimant himself sought to send this information to the accountant before his resignation became effective on 29 July 2008. Furthermore, the Police Service of Northern Ireland became involved in an investigation within the company and a file of papers which the claimant had prepared for the tribunal was taken by the police and has not been returned to him.
(vi) The claimant did not have a written director’s contract with the company and was unable to articulate before the tribunal any terms agreed orally with the company. It was therefore impossible for the tribunal to ascertain express contractual terms with the necessary precision.
(vii) The tribunal is satisfied that the claimant, on his own evidence, did little to progress the accounts information before July 2008. At the end of June/beginning of July 2008 he became aware that Sarah Burrows proposed to transfer some of her shares to her nephew, Stephen Peeples. The claimant objected to this on the basis that he did not feel that Mr Peeples was of good character and claimed that the subsequent events leading to his resignation stemmed from his objection to Mr Peeples becoming a shareholder. He also claimed that his fellow director, Stephen Love, was a friend of Mr Peeples and that he (Stephen Love) did not want Stephen Peeples to become part of the business.
(viii) In or about the beginning of July 2008, and following correspondence from Cleaver Fulton and Rankin solicitors signed by Sarah Burrows, the claimant’s access to the company’s current account was stopped together with his use of the company credit card facility. The claimant sought access to the correspondence from Sarah Burrows which had led to both facilities being stopped, but was unable to do so.
(ix) The claimant attended a wedding on 4 July 2008 and, in his absence, Sarah Burrows, accompanied by Stephen Love’s brother, Barry Love, (who was not a shareholder), carried out a full search of the claimant’s office at Cavehill Road and attempted to access his computer. However, it was password protected and therefore not accessible. They also checked the safe in the claimant’s office which was empty. The claimant explained that his office was an open office accessible to other members of staff and this is why he kept important and sensitive information in his office at home.
(x) Upon returning to work on Monday 7 July 2008, the claimant was approached by Emma Scott, General Administrator, who appeared somewhat nervous. She told the claimant that she had received a telephone call from Sarah Burrows and had been requested to keep an eye on money going in and out of the company and observe what the claimant was doing on a daily basis.
(xi) The claimant subsequently went on holiday to the Irish Republic during the 12 July week and was scheduled to return to work on 21 July. However he returned on 19 July owing to the fact that he had to organise a funeral which was to take place in Dublin. The claimant was unsure as to whether the funeral took place on Wednesday 23 or Thursday 24 July 2008. However, having left Belfast in a hearse to go to Dublin, he received a text message from Jonathan Smyth, Sarah Burrows’ husband, informing him that a meeting would take place at his house that night. Jonathan Smyth informed the claimant that he must attend. The claimant explained by text message that he was going to Dublin and would be away for most of the day. The meeting was to take place at approximately 6.30 pm – 7.00 pm. After a further exchange of texts, the meeting was moved to 9.00 pm and the claimant duly attended. Present at the meeting were Sarah Burrows, Jonathan Smyth, Stephen Love, and the claimant. The claimant described the meeting as a “very fierce meeting”. It is evident to the tribunal that the claimant faced a number of allegations relating to the accounts and as to what he had done or not done. It is also clear to the tribunal that Sarah Burrows, Jonathan Smyth, and Stephen Love were very anxious regarding the accounts to the extent that they requested the claimant to present the necessary accounts information by lunchtime on the following day.
(xii) The claimant felt that this request was unreasonable and a further meeting was called at the accountant’s office for...
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