Lenehan vs Franklins International Ltd
| Jurisdiction | Northern Ireland |
| Judgment Date | 16 November 2012 |
| Docket Number | 00730/12IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Franklins International Ltd |
THE INDUSTRIAL TRIBUNALS
CASE REF: 730/12
CLAIMANT: Michael Lenehan
RESPONDENT: Franklins International Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and, after a 60% reduction in both the basic and compensatory awards as set out in the conclusions, he is entitled to a total award of £29,003.92.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Professor D Boyd
Mr J Barbour
Appearances:
The claimant was represented by Mr N Richards, Barrister-at-Law, instructed by Worthingtons Solicitors.
The respondent was represented by Mr Carroll of EEF Northern Ireland.
The Claim
1. The claimant claimed that he had been unfairly dismissed by the respondent. The respondent denied his allegations in their entirety.
The Issue
2. The issue before the tribunal was whether the claimant was unfairly dismissed by the respondent.
Sources of Evidence
3. The tribunal heard evidence on behalf of the respondent from David Neilly, Managing Director, and Ralph Bauer, Chairman. The claimant also gave evidence. The tribunal was presented with a bundle of documentation and other documentation during the course of the hearing. It took into account only documentation referred to it in the course of evidence.
4. (1) During the hearing the tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) – judgement delivered on 13 October 2009. The tribunal reminded itself of paragraphs 15 and 26 of the judgement of Morgan LCJ as follows:-
(Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).
“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and … to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal …
The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”
The tribunal therefore sought to avoid straying into the “forbidden territory” of making its own determination of the evidence.
(2) The claimant’s claim form referred to the respondent’s decision to dismiss him as being entirely inconsistent with the respondent’s treatment of colleagues at senior level and specifically a disciplinary sanction of an apology and written warning previously imposed on a senior colleague who had been allegedly involved in a considerably more significant incident of swearing and shouting at Ian Stoneman. This aspect of the case was however, not pursued before the tribunal.
(3) In his letter of appeal against his summary dismissal, the claimant stated, inter alia, as follows:-
“I can only conclude that David Neilly has decided to use this “incident” as an excuse to get rid of me since he perceives that I don’t ever agree with his decisions, which culminated in the row between us in his office on 2 June on which I reported to you (Mr Bauer) on 6 June. Since then my new car was cancelled, a report was sanctioned into the Accounts Dept, no feedback was ever forthcoming, communication and involvement have been minimal, my holiday flexibility is zero (bar five days) and there is the ongoing issue of the company’s sick pay scheme”.
These matters were also raised by the claimant in the course of his Disciplinary Hearing on 30 January 2012.
Additionally, in his evidence before the tribunal, the claimant alleged a change of mind by Mr Neilly in relation to the provision of a new car during the first half of 2011.
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:-
(1) The claimant was employed by the respondent from October 1995 until the effective date of termination of his employment on 31 January 2012, when he held the position of Financial Controller/Company Secretary. He was effectively number two in the respondent’s structure, next to David Neilly, Managing Director. He had a 16 year unblemished disciplinary record prior to his dismissal. Ian Stoneman was the Production Manager and Personnel Manager. David Neilly’s wife was a Senior Team Leader and Sales Executive with the respondent and has recently been made Production Development Co-ordinator. The respondent has 29 full time members of staff.
(2) It is recorded in a note made by David Neilly dated 18 January 2012 as follows:-
“Following the verbal report by Ian Stoneman of an incident on 17 January 2012 where the Company Secretary/Financial Controller (Michael Lenehan) is alleged to have used aggressive, bullying behaviour, with foul language, towards the Production Manager (IS), in the open sales office in the close proximity of the company’s office staff.
This was verbally reported to me on the 17 January, 2012. IS looked pale, and a little stunned, and was quite annoyed. I listened to him and agreed it sounded a serious matter, and if he had a grievance he should put it in writing. This was handed to me at around 12 noon on the 18 January, 2012.
After lunch at about 13:20 I went to ML’s office. He was not there. I returned at 13:40 and informed ML that I had been handed a report of an incident that had occurred involving him the previous day. Without me saying he asked if IS had made a complaint. I said an incident has been reported to me and I must investigate it, and he should know the procedures I must follow. I asked him if he could let me have a written report of his version of events. ML was getting a little agitated and asked again if it was a complaint. I said you could construe that, but I was handed it as the report of an incident.
ML did not try to explain his involvement or anything about the incident.
I then left Michaels office.
D. Neilly
18 Jan., 2012”
(3) The alleged incident (aspects of which were disputed by the claimant), is described in a report from Ian Stoneman to David Neilly dated 18 January 2012 as follows:-
“Around 9 o’clock on Tuesday 17 January 2012 I needed to ask Siobhan Lennon a question of a confidential nature. I walked from production room into office area, checked Siobhan was at her desk then as Michael was in Tracey’s office preparing tea/coffee I decided to ask him if I could use his office to speak to Siobhan.
I knocked and opened Tracey’s door and asked Michael if it would be okay to use his office to speak to Siobhan for a minute at the most. Whenever Michael turned to me he appeared angry/upset so not wanting to create any unnecessary drama I said “look don’t worry it’s no problem, I’ll use the upstairs meeting room”. I then closed the door and walked round to Siobhan. I was asking her to give me a minute upstairs when Michael appeared in the sales office. He shouted What the F**k is your problem, slamming the door like that. These may not be the exact words but one at least one swear word was used in a very loud and aggressive manner. Before I had any opportunity to reply he turned and returned to his or Tracey’s office.
Siobhan and...
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