FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 11/16 FET
269/16

CLAIMANT:	Stephen Pulis	

RESPONDENT:	Schivo NI Ltd (In Liquidation)

DECISION (REMEDIES)

It is ordered that the respondent shall pay to the claimant the sum of £12,447 as compensation in respect of unfair dismissal.

Constitution of Tribunal:

Employment Judge:	Employment Judge Buggy		

Members:			Mr C McIlwaine
				Mrs F Cummins

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law.

The respondent was not represented.

REASONS

1.	The claimant was employed by the respondent for several years until 9 October 2015.  With effect from the latter date, he was dismissed.

2.	In a Decision which was issued on 25 October 2017, this Tribunal made the following decisions in relation to liability in this case:

		(1)	We decided that the claimant’s “ordinary” unfair dismissal claim, brought pursuant to Article 130 of the Employment Rights (Northern Ireland) 1996 (“ERO”), is well-founded.

		(2)	We decided that the claimant’s “automatic” unfair dismissal claim, brought pursuant to Article 136 of ERO, is well-founded.

		(3)	All the claimant’s other claims were dismissed.

3.	This is our Remedies Decision, which has been made pursuant to that liability Decision.

4.	In these proceedings, the claimant makes a claim only in respect of the compensatory award element of unfair dismissal compensation, and only in respect of the period from the date of dismissal until 31 March 2017.  In that context, we addressed the following issues:

		(1)	How should past loss be quantified?

		(2)	In assessing the extent of past loss, what are the practical implications, if any, of rules relating to mitigation and causation?

		(3)	Should the claimant’s compensation be reduced pursuant to the Polkey principle?

5.	In resolving those issues, we have applied the legal principles which were set out at paragraphs 29 - 56 of the Decision in Murdock  v  Nortel Networks UK Ltd (In Administration) (CRN 6614/09), decision issued on 23 October 2014.  

6.	The claimant has made a claim of £350 in respect of loss of statutory rights.  We consider it appropriate to award that amount in respect of that loss.

7.	While the claimant was employed by the respondent, he was receiving net weekly earnings of £450.05.  From 6 November 2015 until 23 January 2016, he was out of work.  In respect of that period, he received Jobseeker’s Allowance.  It is not appropriate to deduct the amount of the Jobseeker’s Allowance from an unfair dismissal compensatory award.  (However, the Recoupment Regulations apply in that context : see below.)

8.	In respect of the period from 6 November 2015 until 23 January 2016, we calculate the claimant’s loss as amounting to £5,014.

9.	Throughout the period from 24 January 2016 to 13 January 2017, the claimant was in “new” (post-dismissal) employment.  In respect of that period, he received net wages of £334 per week, which is £116.05 less than the net weekly amounts which he would have received, in respect of that period, if he had continued to be employed by the respondent throughout that period.  Accordingly, in respect of the period from 24 January 2016 until 13 January 2017, we assessed the claimant’s loss as amounting to £5,902.

10.	Unfortunately, from 13 January 2017 onwards, the claimant ceased to be employed in that “new” employment.  In his witness statement in these proceedings, the claimant had described his employment in that “new” job as permanent employment.  Furthermore, he was employed in that “new” employment for nearly a year.  In those circumstances, we are not satisfied that the financial loss resulting from the claimant’s 2017 unemployment (his unemployment during the period beginning on 14 January 2017) is  loss which was sustained in consequence of the dismissal by the respondent or that it was  loss “attributable” to the relevant action (dismissal) taken by the employer.

11.	Accordingly, in respect of the period from 14 January 2017 until 31 March 2017, we have assessed the claimant’s loss as amounting to £106.05 per week (the amount of loss which he would have sustained in respect of that period if the “new” job had not terminated on 13 January 2016).  Accordingly, in respect of the period from 14 January until 31 March 2017, we assess the claimant’s loss as amounting to £1,181.40.

12.	As was stated at paragraph 35 of Murdock, it is clear law that, in relation to any failure to mitigate, the onus of proof rests upon the respondent.  In the circumstances of this case, that onus has not been discharged.  If the law had required the claimant to prove mitigation, we would have decided (because of the history of his post-dismissal employment) that he had done so.

13.	In the context of the Polkey issue, we draw attention to the principles which were set out at paragraphs 49 - 56 of the Murdock Decision.  In this case, we have received no evidence which provides a proper foundation for any reduction of the amount of the compensatory award on account of any possibility that, even if the claimant had not been unfairly dismissed (at the time he was in fact unfairly dismissed) he would have been, or he might have been, fairly dismissed:

		(1)	at that time, or 

		(2)	at some date thereafter.

14.	The sum of the amounts specified at paragraphs 6, 8, 9, and 11 above is £12,447.

15.	Accordingly, the amount of the claimant’s compensatory award is £12,447

Recoupment of benefit from awards

16.	The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision.  The prescribed element is £12,097.  The prescribed period is the period from 6 November 2015 until 31 March 2017.  The amount by which the monetary award exceeds the prescribed element is £350.

Interest on Fair Employment Tribunal awards

17.	This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.

Employment Judge

Date and place of hearing: 	5 and 6 June 2017, Belfast

Date decision recorded in register and issued to parties: