O'Melvena vs RGM Construction Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 24 May 2018 |
| Docket Number | 01561/16IT |
| Court | Industrial Tribunal (NI) |
| Respondent | RGM Construction Limited |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1561/16
CLAIMANT: Brian O’Melvena
RESPONDENT: RGM Construction Limited
DECISION
The unanimous decision of the tribunal is that:-
(1) the claimant was unfairly dismissed by the respondent, pursuant to Article 126 of the Employment Rights (Northern Ireland) Order 1996;
(2) the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £1607.00;
(3) the claimant was not unfairly dismissed, pursuant to Article 134A of the Employment Rights (Northern Ireland) Order 1996; and
(4) the claim of the claimant for unauthorised deduction of wages and/or breach of contract, in respect of holiday pay is well-founded; and the tribunal so declares, and orders the respondent to pay to the claimant the sum of £355.00.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr I O’Hea
Mr T Carlin
Appearances:
The claimant was represented by Mr R Cushley, Barrister-at-Law, instructed by CMS Solicitors.
The respondent was represented by Mr G Gollogly, Accountant, of Gollogly & Company, Accountants.
Reasons
1.1 The claimant, who was born on 31 October 1979 and was employed by the respondent from on or about 26 July 2013 until 26 May 2016, presented his claim to the tribunal for unfair dismissal, notice pay and holiday pay on 28 June 2016. The respondent presented its response to the claimant’s said claims on 1 August 2016, denying liability for the said claims including, in particular, that the respondent had not dismissed the claimant but that he had resigned from his employment by failing to return to work. At a Case Management Discussion, on 26 August 2016, following examination of the claimant’s claim form and the respondent’s response form, the tribunal, in accordance with its normal case-management procedures and practices, identified that the claimant was making, in relation to his claim of unfair dismissal, a claim of ‘ordinary unfair dismissal’, pursuant to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), but also a claim for automatic unfair dismissal, pursuant to Article 134A of the 1996 Order on the grounds that the reason for the said dismissal was because he had made a protected disclosure, in accordance with the relevant provisions of the 1996 Order. In addition, it was identified that the claimant, if he was found to have been unfairly dismissed, was also making a claim, pursuant to Article 27 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) arising out of an alleged failure by the respondent to provide him with a statement of employment particulars, pursuant to Article 33(1) and/or 36(1) of the 1996 Order. Such a claim is not a freestanding claim and cannot be made unless a claim under Schedule 4 has been upheld (see Scott Davies v Redgate Medical Services [2006] UKEAT/0273.) The duty on the tribunal to consider making such an award is mandatory in the prescribed circumstances, whether or not the claim has been pleaded by the claimant. It was further identified that the claimant was making a claim for holiday pay, on the grounds of unauthorised deductions of wages, pursuant to the 1996 Order and/or breach of contract, pursuant to the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.
1.2 At the commencement of the hearing, the claimant’s representative confirmed, following the obtaining of instructions from the claimant, if the tribunal found his dismissal was unfair, that he wished to obtain by way of remedy an award of compensation and, in particular, he did not seek an Order of Reinstatement and/or Re-engagement, pursuant to the provisions of Article 147 – 151 of the 1996 Order.
2.1 The tribunal obtained oral evidence from the claimant, and, on behalf of the claimant, from his wife Mrs Louise O’Melvena; and, on behalf of the respondent, from Mr Ivor McCullough, the managing director of the respondent and Mrs Georgina McCullough, the mother of Mr Ivor McCullough and who was responsible for personnel matters.
Having considered the evidence given to the tribunal by the parties, the documents contained in the trial bundle, as amended, to which the tribunal was referred during the course of the Hearing, together with the submissions, both oral and written of the representative’s, the tribunal made the following findings of fact, set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s said claims to the tribunal.
2.2 The claimant, having been employed by the respondent as a machine operator/ driver, from on or about the 26 July 2013, was an experienced HGV lorry driver. He had been previously employed by the respondent but there was a break in employment before he recommenced employment on the 26 July 2013. His usual duties included collecting stones from the respondent’s quarry and delivering them to customers, assisting in the removal of rubble from a demolition site; and on occasion, he was hired out to other companies to haul soil and to use his lorry in order to draw stones from the crusher, in the respondent’s quarry, to the stockpile.
2.3 On the morning of Thursday 26 May 2016, the claimant was delivering stones to customers. At or about 2.30 pm, the claimant came into the quarry from delivering stones to customers and waited at the weigh bridge, which is on the site of the quarry, until a customer rang in and wanted another load. At approximately 15.00 pm, as he was waiting at the weigh bridge, he was informed by Mr Angus Tennent, the weigh bridge operator, that Mr Tennent had received a telephone call from Mr Roy McCullough, the quarry supervisor and father of Ivor McCullough, the managing director of the respondent. He had asked Mr Tennent to send the claimant down with his lorry in order to draw stones from the crusher to the stock pile. The claimant said to Mr Tennent he would not go down, because that work damaged the tyres on the lorry and he would go home instead.
2.4 The claimant agreed, in evidence, that he had been asked to do this job on a number of occasions previously. However he suggested the job put significant pressure on the tyres of the lorry as the lorries were often overloaded and, when he had completed the work on previous occasions, the tyres had been damaged to varying degrees. He was concerned, if he did the task requested, the tyres would again be damaged to such an extent as to leave them unroadworthy and illegal if driven on a public road, when he returned his lorry, at the end of his shift, to the yard, which is situated along a public road. This would have consequences for his licence if he was found to be driving a vehicle with unworthy/illegal tyres. However, it is to be noted, when refusing to do the work, the claimant never mentioned any issue about weight or overloading when doing this work. The claimant further suggested, that, since this was work within the quarry, the weigh bridge did not require to be used, and to overload the lorry meant that less trips were required. However, there was no evidence whatsoever before the tribunal to support what was said by the claimant, as referred to above; and the claimant acknowledged that the person who drove the loader/shovel knew what he was doing when loading lorries for this task and that there was also a weighing device on the loader/shovel. The claimant also accepted that there was a mechanic in the yard, who replaced tyres on his lorry when they came to “the end of their life” and had always done so promptly when, required.
Further, there was no evidence before the tribunal the claimant had ever been required to drive a lorry with damaged tyres which made them unroadworthy/illegal or indeed, that doing this particular task, tyres had been so damaged that they required to be replaced. The claimant...
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