Porter vs Offsite Archive Storage
| Jurisdiction | Northern Ireland |
| Judgment Date | 03 October 2012 |
| Respondent | Offsite Archive Storage |
| Docket Number | 01422/11IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1422/11
CLAIMANT: Stewart Porter
RESPONDENT: Offsite Archive Storage & Integrated Services Limited
DECISION
The decision of the tribunal is that the claimant is entitled to an award of £77,900.00 in respect of unfair dismissal and loss of statutory rights. The claimant’s claim for unlawful deduction of wages is dismissed.
Constitution of Tribunal:
Chairman: Mr I Wimpress
Members: Mrs C Lewis
Mr H Stevenson
Appearances:
The claimant was represented by Mr Peter Coll, Barrister-at-Law, instructed by Shean Dickson Merrick Solicitors.
The respondent was represented by Thomas Sheridan and Lynn Sheridan of Peninsula Business Services Limited.
THE CLAIM AND THE RESPONSE
1. In a claim form dated 20 June 2011 the claimant brought claims in respect of breach of contract, unfair dismissal and unauthorised deduction of wages. The breach of contract claim was not pursued at the hearing as the sums involved in relation to the remuneration claimed were substantially in excess of the tribunal’s monetary jurisdiction for breach of contract. A detailed response was filed in which the respondent denied that the claimant was unfairly dismissed and asserted that the claimant was fairly dismissed for misconduct. The respondent further denied that it was in breach of contract in any way at all and in particular in relation to payment of money in lieu of notice. No mention was made in the response of the alleged unlawful deduction of wages. There was however a denial that the respondent had failed to pay the claimant accrued holiday pay notwithstanding that no claim of this nature was made by the claimant. It is clear that the failure to refer to the alleged unlawful deduction of wages and the reference to holiday pay was due to an error and the hearing proceeded on the basis that the tribunal was required to address the issues of unfair dismissal and unlawful deduction of wages.
SOURCES OF EVIDENCE
2. The tribunal received two bundles of documents at the outset of the hearing which were supplemented during the course of the hearing together with a further bundle of documents which we will refer to as the Clearpath material. In addition to the witnesses who gave oral evidence there were a number of others who were not called by either party but who contributed to a greater or lesser extent to the history of this matter and we consider it helpful to identify everyone now as far as possible. In so doing we are not criticising either party for not calling any of those whom we identify.
Witnesses who gave evidence to the tribunal
Mr Stewart Porter - the claimant and co-founder of OASIS.
Mr Dennis Barnedt III - the Chief Executive Officer of OASIS.
Mr John Dickey - the external consultant appointed to conduct the disciplinary hearing.
Mrs Lynn Sheridan - the Peninsula consultant responsible for negotiations with the claimant’s solicitor.
Mr Des Rogers - a co-founder of OASIS.
Mr Gary McElroy - a co-founder of OASIS.
Mr Glen Reid - former Chief Financial Officer of OASIS.
Mr Peter McCormick - a co-founder of OASIS and a participant in a chain of emails which led to disciplinary action against the claimant.
Mrs Maura McKay - the claimant’s solicitor.
Individuals referred to in the documents and/or in oral evidence who were not called to give evidence.
Ms Claire Gallagher - the head of Human Resources in OASIS.
Mrs A Munn - note-taker at disciplinary hearing.
Mr Alan Pevy - employee of Reisswolf and a participant in a chain of emails which led to disciplinary action against the claimant.
Mr Christoph Smaczny - employee of Reisswolf and a participant in a chain of emails which led to disciplinary action against the claimant.
Mr Gary Connolly - a participant in a chain of emails which led to disciplinary action against the claimant.
Mr Richard Kane - a business associate and longstanding friend of the claimant.
Mr Paul Nelis - the claimant’s successor as the respondent’s General Manager in Belfast.
Mr Ronnie Carroll - Current Chief Finance Officer.
Mr Brian Connolly - Financial Controller in respondent business and a participant in a chain of emails which led to disciplinary action against the claimant.
Mr O’Toole - Deloitte Touche financial consultant.
Mr Philip McConnell - Legacy Wealth financial adviser.
THE FACTS
3. The surviving claims of unfair dismissal and unlawful deduction of wages are to a large extent distinct in terms of the factual background to these proceedings and could be addressed separately. However, we consider it more convenient to deal with them together as part of the same timeline.
4. The claimant was one of the founders of McConnells, a well known document storage business. The respondent carries out business which involves the secure storage of documents and is part of a larger worldwide group known as OASIS Ltd. At the time of his dismissal the claimant was the respondent’s Managing Director.
5. In 2007 a Management Buy Out took place which involved the claimant, the other main owners of OASIS and a small number of private investors.
6. The claimant and his co-directors, Mr McCormick and Mr McElroy, all signed Service Agreements with OASIS at this time which made provision for their terms and conditions of service including salary.
7. The claimant’s Service Agreement was dated 21 December 2007 and described the claimant’s role as the Managing Director for the storage division of OASIS in Northern Ireland. The claimant’s remuneration was set at £85,000 per annum including an annual Director’s fee of £16,320. The Service Agreement also included private health insurance, 5% pension contribution by the respondent, club subscriptions of £1,020 per annum and an annual car allowance of £15,000.
8. Mr McCormick’s Service Agreement was also dated 21 December 2007 and his role was given as the Sales and Marketing Director. Mr McCormick’s remuneration was set at £121,000 per annum including an annual Director’s fee of £16,320. The Service Agreement also included private health insurance, entitlement to participation in such pension arrangements as were put in place by the Board, club subscriptions of £1020 per annum together with mileage and travel expenses as vouched.
9. Mr McElroy’s Service Agreement, again dated 21 December 2007, gave his role as Technical Director. Mr McElroy’s remuneration was set at 180,000 euros per annum including an annual Director’s fee of 24,000 euros. The Service Agreement also included private health insurance, participation in such pension arrangements as were put in place by the Board, club subscriptions of 1,500 euros per annum together with mileage and travel expenses as vouched.
10. Common to all three Service Agreements were clauses dealing with the directors’ duties and so forth. Clause 2.2 (b) required the director to act faithfully and diligently and devote the principal amount of his time to the business of the Company. Clause 2.2 (c) required the director to carry out his duties in a proper and efficient manner with a view to maintaining, protecting and extending the business interests, reputation and welfare of the Company and of Associated Companies. Clause 2.2 (d) required directors to keep the Board properly and fully informed of the conduct of the business. Clause 2.4 (a) dealt with Other Interests and forbade directors from becoming engaged, concerned or interested in any trade, business or occupation other than that of the Group. Clause 6 concerned Protective Covenants and at 6.1.1 prohibited directors from revealing trade secrets, secret or confidential operations, processes or dealings or any information concerning the organisation, business, finances, transactions or affairs of the Company and to keep with complete secrecy all Confidential...
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