Industrial Tribunals Northern Ireland Decisions

Milliken v Stratton (Unfair Dismissal) [2003] NIIT 1702_01 (15 June 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1702/01

APPLICANT: Walter Milliken

RESPONDENT: William James Stratton

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed and that the respondent shall pay to the applicant the sum of £8,077.35 by way of compensation.

Appearances:

The applicant was represented by Mr G McLaughlin.

The respondent appeared in person.

Summary Reasons

1. There was no real dispute about the facts. The applicant was employed by Stratton Brothers from 30 August 1982 until July 2000 when the respondent commenced business on his own account and continued to employ the applicant. In or about September 2000 the applicant was off work due to sciatica. On 5 February 2001 he phoned the respondent to say that he was fit to return to work on 6 February. The respondent replied that he had no work for him. The applicant asked what he was to do and the respondent made no reply. The applicant said, "I suppose I may sign on for Jobseekers". The respondent replied, "You may" or "That's up to you". The following day the applicant wrote to the respondent stating, inter alia:-

"I understand there is no work for me and you suggested I should sign on for Jobseekers Allowance. I would appreciate you forwarding to me written reasons for dismissal as soon as possible".

The applicant wrote again on 23 February and on 7 March. The respondent made no response of any kind to any of these letters, though he did say in evidence that, at the conclusion of the telephone call of 5 February, he could, and perhaps should, have phoned the applicant back. He also indicated that, during the course of applicant's employment, there were periods of when there was no work of the kind for which the applicant was normally employed to do and that during these periods he found alternative work for the applicant to do.

2. In the tribunal's view the telephone conversation of 5 February, viewed in its surrounding circumstances could reasonably be and was, construed by the applicant as a dismissal. There was no question of any improper conduct or unsatisfactory workmanship on the applicant's part, there was no question of any disciplinary action, there was no other reason advanced by the respondent for the dismissal. Accordingly the tribunal found the dismissal was unfair.
3. The applicant had 18 years' employment successively with Stratton Brothers and with the respondent during 13 of which he was not below the age of 41 years and during 5 of which he was below the age of 41 but not below the age of 22. His gross wage as at the time of his dismissal, was agreed at £224.64 per week, £182.59 net. Accordingly, according to the formula set out in Article 1(3) of the Employment Rights (Northern Ireland) Order 1996 the applicant is entitled to a basic award calculated follows, namely:-

13 x 1¹/₂ x £224.64 plus 5 x 1 x £224.64

The relevant totals are:-

13 x 1¹/₂ x £224.64 is £4,380.48

5 x 1 x £224.64 is £1,123.20

Total £5,503.68

The applicant is also entitled to £200.00 by way of compensation for loss of statutory rights.

In the tribunal's view a proper period to be allowed to enable the applicant, with his skills and experience, to become re-employed was 13 weeks. Accordingly, the applicant is entitled to a compensatory award calculated as follows, namely:-

13 x £182.59 £2,373.67

The total award is therefore as follows:-

Basic award £5,503.68

Loss of statutory rights £ 200.00

Compensatory award £2,373.67

Total £8,077.35

4. Recoupment

The monetary award is £8,077.35 of which the prescribed element is £2,373.67. The period to which the prescribed element applies is 5 February 2001 to 23 July 2001.

5. Interest

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

Chairman:

Date and place of hearing:

Date decision recorded in register and issued to parties: