Industrial Tribunals Northern Ireland Decisions

Liken v Howard (t/a Mr Chips) (Constructive Dismissal) [2003] NIIT 672_02 (15 January 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF NO: 00672/02

APPLICANT: Patrick Liken

RESPONDENT: Clement Howard t/a Mr Chips

DECISION

The unanimous decision of the tribunal is that the applicant was constructively dismissed by the respondent and the dismissal was unfair. The applicant is awarded the sum of £3,453.50 by way of compensation.

APPEARANCES:

APPLICANT: Mr B Keegan, Barrister-at-Law, instructed by McClenahan Crossey, Solicitors.

RESPONDENT: No appearance by the respondent.

1. The respondent did not appear at the Tribunal and had not entered a Notice of Appearance to defend the claim. The Tribunal considered the papers that had been served and the respondent had been sent a Notice of Hearing on 28 November 2002. He was aware of the date of hearing. The respondent had contacted the Office of Tribunals and was informed that all post had been sent to him at his address. He asked on 10 January for the case to be postponed and was told that he would have to provide a reason in writing. Nothing was forthcoming until a fax was received asking for a postponement on the grounds that he had no knowledge of the hearing and he mentioned a solicitor. At no time has there been any letter indicating that a solicitor was on record for the respondent. As a result of this fax communication the applicant's solicitors sent a letter to the Tribunal on 13 January 2003 stating that they had written to the respondent on 10 June 2002 and 5 December 2002. They had received a telephone call from Mr Howard on 13 June saying that he was to be represented by Peninsula and that they would be in touch with the applicant. They copied this correspondence to object to any application to adjourn the proceedings. The Tribunal considered the relevant correspondence and decided that the case should continue.
2. The applicant gave evidence to the Tribunal and the Tribunal accepted that he was telling the truth. He had been employed from June 2000 to 27 January 2002 as a chip-fryer and assistant in the respondent's shop in Portrush. The applicant was aged 15 when he started and he stated that Mr Howard was pleasant to him at the start but after a month he became aggressive. The applicant gave evidence about how Mr Howard would punch him or kick him or hit him with a bunch of keys at times throughout his employment. Matters came to a head on 27 January when the respondent's fiancée called the respondent 'tiger' and this nickname was then used by the staff as a 'bit of fun'. The respondent punched the applicant because he was in a huff, he told him to go out the back of the chip shop and when the applicant got out there the respondent had a horse whip which he then proceeded to whip the applicant with on the arms and legs. The applicant stated he could not continue working any more and told the respondent. The respondent then took him into the office and asked him to continue to work and there threatened him if he did not continue to work. The applicant went to the police and complained about the assault and made a statement. The police have not prosecuted at this time. The applicant stated that the respondent had a nasty temper and had used a horse whip before with another member of staff.
3. The applicant started to look for work and was not successful. He then decided that he would apply for a course in the catering college and he will do so later this year.
4. The Tribunal considers that for the respondent to treat a young employee just out of school in this fashion is disgraceful and we accept that this is a case of assault. We are satisfied that any person in employment has an expectation that the employer will behave in a mature and fitting fashion and to physically abuse an employee goes to the root of any contract of employment and entitles the employee to leave if he is treated in such an unpleasant and unwarranted fashion. The Tribunal is satisfied that the applicant was constructively dismissed because of the actions of the respondent and he left because of this particularly unpleasant attack on 27 January 2002. The Tribunal is satisfied that the applicant did look for work for a period of time and now has decided to change his life and go to college if he is successful in gaining a place. We do not think it is just and equitable to grant a period of future loss for more than 6 months from the date of dismissal. The Tribunal is aware that the applicant was being paid under the National Minimum Wage and unfortunately the Tribunal cannot enforce the national minimum wage in this case for compensation because the applicant was under 18 at the time. The applicant gave evidence that he was paid £140 net per week which equates to the sum of £187 gross per week.

Basic Award

Half a week's pay = £93.50

Compensatory Award

24 weeks @ £140.00 per week = £3,360.00

Total = £3,453.50

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

____________________________________

M P PRICE

Vice President

Date and place of hearing: 15 January 2003, Londonderry

Date decision recorded in register and issued to parties: