Industrial Tribunals Northern Ireland Decisions

 


McBride v Horsepower Ireland Ltd (Unfair Dismissal) [2002] NIIT 03243_00 (10 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 03243/00

APPLICANT: Kieran McBride

RESPONDENT: Horsepower Ireland Ltd

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed and the respondent is ordered to pay the sum of £24,960.96 to the applicant in respect of compensation for unfair dismissal. It was also the unanimous decision of the tribunal that the applicant's claims under Article 45 of the Employment Rights (Northern Ireland) Order 1996 are well founded and the tribunal declares that the applicant is entitled to receive the sum of £3,977.84 from the respondent in respect of deductions from wages. The tribunal also considers that the applicant's claim of breach of contract is well founded and the tribunal orders the respondent to pay the sum £265.01 in respect of one week's pay in lieu of notice.

A total award of £29,203.81

Appearances:

The applicant appeared in person and represented himself.

The respondent did not appear, did not enter a notice of appearance and did not instruct any representative.

Summary Reasons

The tribunal found the following facts:-

1. The proper respondent to the applicant's claims was the first named respondent, Horsepower Ireland Ltd, as the applicant produced a contract of employment between himself and the first respondent. The second, third, fourth and fifth respondents are hereby dismissed from the proceedings.
2. The applicant was employed by the respondent as a designer for the respondent magazine and website.
3. At the date of dismissal, the applicant had nine completed months of service with the respondent.
4. There was a history throughout the employment of the applicant of failure to pay wages, failure to pay correct wages and failure to pay expenses. The applicant was supposed to receive the sum of £1,500 gross per month which is the equivalent net of £1,148.40. The pattern of payments was as follows:-

Month	Shortfall	Overpayment
March 2000	£ 148.40
April 2000		£ 1.60
May 2000	£ 148.40
June 2000	£ 248.48 £ 283.50 £ 56.94
July 2000		£351.60
August 2000	----	----
September 2000	£1,148.40
October 2000	£1,148.40
November 2000	£1,148.40

In total the applicant's unpaid wages amounted to the sum of £3,977.84. The tribunal declares that the applicant is entitled to receive this sum in respect of unpaid wages from the respondent.

5. At the start of December 2000 the applicant considered that he had to make a stand and assert his statutory right to receive properly paid wages. Throughout his nine months of employment with the respondent, he had only received two properly constituted payslips. The applicant contended that it was his demand to receive his statutory rights which resulted in his being dismissed by the respondent. The applicant produced a bundle of printed out e-mails, which showed that the respondent dismissed the applicant finally in or around 4^th day of December 2000. In a case of unfair dismissal, the respondent bears the responsibility of proving the reason for the dismissal of the applicant. Here, the tribunal has no other explanation for the dismissal other than the applicant's evidence which was to the effect that as soon as he started to push to receive his statutory rights under The Employment Rights (Northern Ireland) Order 1996, his employment relationship deteriorated to the point where he was finally dismissed on 4^th December 2000. The tribunal finds that his dismissal was automatically unfair in accordance with Article 135 of the Order and awards compensation as follows.

Computation of Compensation

Basic Award

The applicant did not have a completed year of service so the tribunal is unable to compute a basic award.

Immediate Loss

The applicant has made many applications for alternative employment and has actively tried to mitigate his loss. The tribunal finds that his net weekly wage is £265.01 and that his immediate loss from 4^th December 2000 to 10^th May 2002 (being date of promulgation of this decision) is a period of 75 weeks and his compensation is therefore

£265.01 x 75 = £19,875.75

Future Loss

The tribunal has noted the applicant's failure to obtain employment to date despite stringent efforts to do so and the tribunal is aware that the applicant's age is not helping him in this regard. The tribunal considers that it would be just and equitable to award a period of loss of 26 weeks in respect of this head of damage. Therefore compensation is computed as follows:-

£265.01 x 26 = £ 6,890.26

However, five weeks of this loss are subject to Recoupment regulations.

Loss of Statutory Industrial Rights

The tribunal awards £100.00.

6. The tribunal also considered that the applicant was entitled to receive the sum of £265.01 in respect of one week's pay in lieu of notice.
7. (a) Summary of Compensation for Unfair Dismissal

Basic Award Nil

Compensatory Award loss to 10 May 2002 £19,875.75

Future Loss of 21 weeks £ 5,565.21

Loss of Statutory Industrial Rights £ 100.00

TOTAL £25,540.96

Less post-dismissal receipts of - £580.00

(monies earned for 2 weeks work with

Smurfit)

TOTAL £24,960.96

(b) Summary of Compensation for Breach of

Contract and Deductions

Deductions £ 3,977.84

Breach of Contract £ 265.01

£ 4,242.85

8. The applicant confirmed that he had been in receipt of benefit throughout the period of his unemployment from 4^th December 2000 to date with the exception of the two weeks' employment he had with Smurfit. The recoupment period is a total of 68 weeks.
9. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

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Date and place of hearing: 6 March 2002, Belfast

Date decision recorded in register and issued to parties: 10 May 2002