RMT MEMBER ‘UNFAIRLY DISMISSED’

RMT helpline 0800 376 3706 :: sept 2014 :: RMTnews 12 The London Central Employment Tribunal has found that RMT activist and representative Petrit Mihaj, had been automatically unfairly dismissed in 2013 and 2014 by his employer, Sodexo Ltd, due to his trade union activities under s.152 of the Trade Union & Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). Section 152 renders a dismissal automatically unfair in a number of circumstances including if the principal reason was that the employee had taken part or proposed to take part in the activities of an independent trade union at an appropriate time. Mr Mihaj worked for Sodexo for over a decade, progressing from a Commis Chef to become General Manager. He became active within the union, successfully organising canteen workers, increasing membership and seeking recognition. At the time of his second dismissal in January 2014, he was the industrial relations and health and safety representative for members employed by Sodexo. Mr Mihaj was demoted in 2013 to the role of Chef Supervisor and issued with a final written warning following allegations of bullying and harassment. He was summarily dismissed in January 2014 on the stated substantive grounds that he sent an “inappropriate” WhatsApp message to approximately 20 colleagues and secondly that he behaved inappropriately towards a colleague he was representing. In relation to the former, there was in fact nothing abnormal or inappropriate about the message. It was sent for the sole purpose of garnering support for a colleague he was representing who was facing disciplinary action. Regarding the latter charge, at no stage did the colleague in question raise a grievance or make a formal complaint against Mr Mihaj. Both of the above matters arose in the course of representation by Mr Mihaj of RMT members. Nonetheless an investigation ensued culminating in the termination of Mr Mihaj’s contract of employment. Mr Mihaj’s legal representatives firstly had to establish that his demotion in 2013 was in fact a dismissal, and the tribunal agreed it was. Interim relief under s.161 of the 1992 Act was sought. In order for such an application to be successful, and thereby securing an order for the continuation of Mr Mihaj’s contract of employment until the final hearing, the Employment Tribunal must be convinced that success at the final hearing was probable i.e. more than a 51% chance of success. The case put forward by Mr Mihaj’s legal representative included the argument that the very acts on which Sodexo relied as the reason for dismissal were the activities of an independent trade union. Thus, on Sodexo’s own admission Mr Mihaj‘s dismissal was due to trade union activities. This application was refused. The Employment Judge held that it was not likely that the Tribunal would find that the true reason for dismissal was the trade union activity of Mr Mihaj, as opposed to the way in which it was carried out. The Union fully supported an appeal against this refusal and were successful in overturning it at the Employment Appeal Tribunal (“EAT”). The EAT held that the Employment Judge erred in his reasoning and that, subject to extremes of behaviour, the way in which an individual carried out a trade union activity is not relevant to the issue as to whether a dismissal was for carrying out trade union activities. The EAT reiterated the judgement in Bass Taverns v Burgess [1995] in that the way in which trade union activities are carried out is immaterial to the decision as to whether they are in fact trade union activities unless the way in which they are carried out is dishonest, in bad faith, or carried out for another cause so as to remove it from trade union activities. Thus the appeal succeeded and the interim relief application was remitted to a differently constituted employment tribunal. However, at the remitted hearing the judge did not agree that Mr Mihaj’s claim was likely to succeed and the application was unsuccessful. Following a ten-day final hearing Mr Mihaj’s claim was successful and he was awarded damages of £31,290.07. Unfortunately the Tribunal did not order Mr Mihaj’s reinstatement or reengagement. The Tribunal found that Sodexo did not assist with the issues he raised regarding difficulties with team members. It found that Sodexo’s investigations into the allegations made against Mr Mihaj were inadequate and the independence of one of the investigating officers was called into question. RMT MEMBER ‘UNFAIRLY DISMISSED’ Thompsons solicitors outlines a recent tribunal victory, winning a member over £30,000 for unfair dismissal