Industrial Tribunals Northern Ireland Decisions

 


Flynn v NII Racing Ltd & Anor (Unfair Dismissal/Breach of Contract/Unlawful Deduction from Wages) [2002] NIIT 1201_00 (2 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 01201/00

APPLICANT: Patrick Flynn

RESPONDENT: 1. N.I.U. Racing Limited

2. Patrick Owens

DECISION

The Tribunal finds that the applicant:-

(a) was unfairly constructively dismissed and awards him compensation of £7,705.62, and

(b) is owed contractual notice pay and it makes an award of £4,000,

(c) was not paid sick pay due to him and it makes an award of £900.

Appearances: Mr M Potter, of counsel, instructed by Jones & Cassidy, Solicitors for the applicant.

Mr R Lavery, of counsel, instructed by E McEvoy, Solicitors for the respondents.

1. These reasons are given in summary form.
2. The applicant claimed unfair selection for redundancy, constructive dismissal, breach of contract and unlawful deductions from wages. The respondents denied the applicant's claims in their entirety and stated that if there was a termination of his contract of employment it was by his own volition.
3. The Tribunal made the following findings:-

(a) The applicant began employment with the respondents on 19 August 1996 as the general and marketing manager and later took on the additional functions of one of the racing managers. His weekly salary was £400 net.

(b) The second respondent wrote to the applicant by letter of 29 March 2000 notifying him that he was to be redundant with his notice period beginning on 31 March 2000. The applicant was entitled to 12 weeks contractual notice.

(c) While the Tribunal recognises that there are questions about the genuineness of the redundancy situation the applicant's redundancy did not become operative because the applicant terminated his employment during the notice period on the 14 April 2000.

(d) The respondents breached the applicant's contract of employment by breaching the implied term of trust and confidence that must exist between employer and employee. This breach was the culmination of a course of conduct that occurred from 11 January 2000 to 8 April 2000. The matters giving rise to the breach were:-

(i) The second respondent embarrassed the applicant publicly on 11 January 2000 and 14 March 2000.

(ii) The second respondent failed to inform the applicant, his general manager, of his various changes of mind about the acceptance or non-acceptance of the gift of I£105,000.

(iii) The second respondent having authorised the applicant to deal with Mr Curley from Bord na gCon about the application of the I£105,000 to the 3 tracks in Northern Ireland, rescinded that authority without informing the applicant.

(iv) The second respondent failed to instruct the applicant as to the attitude of the respondents before the meeting on the 14 March 2000 or as to how the applicant, the general manager, should deal with matters arising therein or that the second respondent would personally deal with the issues at the said meeting.

(v) The second respondent's public comments at the meeting on the 14 March 2000 completely undermined the applicant's position as general manager.

(vi) The second respondent's treatment of the applicant from the 16 March 2000 to 8 April 2000, when the applicant was off work through stress, put more pressure on the applicant and further undermined the trust and confidence between the applicant and his employer.

(e) The respondents' breach of the implied term of trust and confidence went to the core of the applicant's contract of employment.

(f) The applicant left in response to the respondents' breach of contract.

(g) The applicant did not delay too long after the breach before leaving.

(h) In all the circumstances the respondents acted unreasonably.

(i) The applicant was constructively dismissed and that dismissal was unfair.

(j) The Tribunal is satisfied that the applicant mitigated his loss until 10 July 2000 by reason of his attempts to secure other employment. He failed, however to mitigate his loss when he refused a job in Thurles on 10 July.. No information about wages in connection with this post was given and the Tribunal is unable to say whether the applicant suffered a loss or not. The applicant became re-employed on 11 September 2000 at Mullingar earning £292 per week net.

From 11 September 2000 until 30 April 2001 the applicant suffered a loss of earnings of £108 per week and from 1 May 2001 to 31 December 2001 a loss of £67. In the applicant's schedule of losses no loss is claimed after 31 December 2001.

By reason of his contractual notice pay, referred to below, the applicant did not suffer any loss of earnings until 24 June 2000.

(k) Accordingly the Tribunal awards compensation as follows:-

Basic Award:

£230 X 3 = £ 690.00

Compensatory Award

From 24 June 2000 to 10 July 2000

£400 X 2.29 = £ 916.00

From 11 September 2000 to 30 April 2001

£108 X 33 £ 3564.00

From 1 May to 31 December 2001

£67 X 34.86 £ 2335.62

Total loss £ 6815.62

Loss of statutory rights = £ 200.00

Total = £7705.62

Prescribed period from 15 April 2000 to 11 September 2000

Prescribed element = £ 916.00

(l) The applicant was contractually entitled to 12 weeks notice from 31 March 2000 to 23 June 2000. He was off sick from 16 March 2000 to 14 April 2000 when he left by reason of the respondents' breach of the implied term of trust and confidence. As the applicant was off work through stress during 2 weeks of the contractual notice period and entitled to sick pay he cannot get double compensation for that 2 weeks and the amount of notice pay owing to him is £4000.00.

(m) The applicant was off work through stress from 16 March 2000 to 14 April 2000 and was so certified by his doctor. He was entitled to 4 weeks sick pay which was paid at £400 per week. He received £700 from the respondents and is therefore owed £900.

(n) The applicant was never provided with a company car, insurance and accident cover and reasonable costs of business as his contract required. The respondents gave the applicant £5000 and paid 11 instalments of the cost of purchasing a vehicle. The vehicle was in the applicant's name, as he purchased it on foot of a deal on offer to individual purchasers and not business purchasers. The applicant retained the car after he left the respondents' employment and paid the remaining instalments.

The Tribunal believes a broad brush approach should be taken in relation to the car and finds that monies paid by the respondents towards the purchase of a vehicle for the applicant were in lieu of implementing the provision in the applicant's contract of employment.

(o) The Tribunal does not make an award for injury to the applicant's feelings.

(p) The Tribunal does not make any award of costs.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

This is a relevant decision for the purposes of the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 28 June, 15, 16 and 17 October 2001, 11, 12, 13, 14 and 15 February, 21, 22 March and 2 May 2002, Belfast

Date decision recorded in register and issued to parties: