Sacking the transport manager
Page 65
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WHEN an employee is dismissed, as he thinks, unfairly, Industrial Tribunals provide an informal court hearing, with the possibility of financial redress if the dismissal has been "unfair."
A recent hearing, of particular interest to transport managers, who are just as vulnerable as the next man to losing their job in unfortunate circumstances, concerned the claim of Mr B. S. Whitear against his employers, haulage contractors, W. J. Lamey and Sons Ltd. The hearing was at Bideford, Devon, before Tribunal chairman Mr A. L. Gordon.
Like many transport managers, Mr Whitear was promoted to management from the driving force, and his background is important in the context of the claim for unfair dismissal.
Arthritic
After working as a driver from 1946 to around 1965 Mr Whitely, at his own request, transferred to a job in the stores. He did so because an arthritic condition was becoming progressively worse; and a lower rate of pay was involved.
Within a few months Mr Whitear was promoted to the position of stores foreman or, as the tribunal preferred to describe him, stores chargehand, for •he was in charge of two other men only.
In 1972 the then managing director of the company who had also acted as transport manager, died. The transport function was undertaken by various people for a time but Mr Whitear, whose experience of the practical side of transport had proved useful to at least one of the managers involved, was himself appointed transport manager with effect from April 1 1974 at the modest salary of £1,750 a year.
In terms of length of service, as a driver, though not of age, the senior driver at the company happened to be Mr J. F. Whitear, son of the applicant. He was a long-distance driver, with eight years' experience. There are plenty of precedents in road haulage of senior drivers helping, or being promoted to, management and the father/son relationship in this company was no bar to this, as will be seen.
On November 22 the applicant was due to go into hospital for a very serious prostate gland operation. Mr Whitear junior suggested to his father that he (the son) should take a week's holiday which was said to be due to him, so that he would be available to take his mother to and from the hospital in Barnstaple from the family home at Appledore. The applicant suggested, as an alternative, that he should ask Mr Lamey to agree to his son working in the office for that week so that instead of being away for long hours on long-distance work, he could take his mother to hospital in the evenings.
That suggestion, said the Tribunal chairman, was put to Mr Lamey, who would have none of it. Thereafter, Mr Whitear junior applied for a week's holiday to commence on November 25.
For a reason which the Tribunal could not comprehend, the senior driver's suggestion annoyed Mr Lamey who said words to the effect that he would decide when employees should take their holidays. Mr Whitear junior said in that case he would take his holiday anyway, and Mr Lamey said that if he did so he would be sacked.
Another job
Mr Whitear, soon after, fixed up a job for himself with another road transport firm at Tiverton, to commence work in a week's time. But on Monday, November 25, when he attended the Lamey firm's premises to collect union dues, Mr Lamey had apparently changed his mind and advised him that he could have the week's holiday he had asked for. Mr Whitear junior insisted on resigning and gave a week's notice.
In fact, Mr Lamey appointed another driver, a Mr Daniel, to act as transport manager while Mr Whitear senior was in hospital. While he was convalescent, the applicant visited the company premises weekly, and generally saw Mr Lamey, telling him the doctor would not sign him as fit for work. On February 8, 1975 the applicant was passed as fit and he immediately went to the company premises and told the drivers present that he was returning to work on the following Monday. Mr Lamey was also informed.
Mr Lamey then told the applicant that he did not propose to continue to employ him as transport manager and he offered him a job in the stores. 'That was a terrible shock to the applicant," said the Tribunal report, "and he did not accept the proposal. He was told by Mr Lamey that he would be dismissed, with four weeks' pay in lieu of notice. He was not required to work out the notice, Mr Daniel being in the saddle."
Chargehand
Unknown to Mr Lamey, while he was interviewing his foreman transport manager, a meeting of the great majority of drivers was in progress on the company premises. The drivers agreed among themselves that they preferred Mr Daniel as transport manager, and they decided to tell Mr Lamey of this. But the Tribunal felt confident that Mr Lamey, at the time he was sacking Mr Whitear senior, was not aware of the drivers' attitude. He was, however, very shortly afterwards told the position by the shop steward.
So much for the facts. The respondents held to their decision to appoint Mr Daniel to the transport manager's job, and Mr Whitear senior did not change his mind about accepting the stores job. The Tribunal were satisfied that if Mr Lamey had had it in mind to re-appoint Mr Whitear to the job of stores chargehand, this was not made clear to the applicant. In any case, the Tribunal, aware that Mr Whitear senior was unfit for heavy manual work, agreed that he had refused the "work in the stores" offer, quite reasonably.
The Tribunal decision goes into much detail as to the justification for the dismissal, noting that " capability " as defined in the Trade Union and Labour Relations Act 1974 is not easily defined. Conduct which is incompetent through carelessness, and conduct which really shows a incapacity to do the work ar two different things. Th Tribunal were quite satisfie that the true reason for diE missal did not relate either t the apprlicant's capabilities or t his conduct.
"We think that, being a charitable to Mr Lamey as wi can be, the true reason wa! that Mr Lamey had reached tin conclusion that Mr White.% junior was using informatior relating to the company's affair:. which he might have obtainec from his father, the applicant for the purposes of competing in a manner which Mr Lamey regarded as unfair, with the company."
This suggestion appeared to the Tribunal to be quite unfounded. "We are convinced that Mr Lamey did not give the matter proper thought at all. Had he done so he would have realised that the son had the relevant information anyway and that he (Mr Lamey) had no just reason for believing that the applicant, a faithful employee for nearly 30 years, would act in a manner damaging to the respondent's interests."
True reason
The true reason, it was hinted, could be annoyance at the activities of Mr Whitear junior, for which the applicant was quite unfairly blamed. On the most favourable view of the facts, the Tribunal felt that Mr Lamey "jumped to an erroneous conclusion on inadequate grounds without giving the applicant any chance to meet the case against him."
The rest of the Tribunal's decision is a fascinating examination of British justice applied to the everyday world of road transport and in a manner designed to assess compensation for unfair dismissal fairly. If anyone has any doubts about the capacity of an Industrial Tribunal to sift conflicting evidence and come to a fair settlement, this case should resolve them.
For the Tribunal, while holding that the employing firm acted unfairly, felt it right to