Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1819/02

CLAIMANT: Darren McGavigan

RESPONDENT: Abbey Insulation Limited

DECISION

The unanimous decision of the tribunal is that the respondent do pay to the claimant the sum of £6,233.34.

Appearances:

The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

The respondent was represented by Mr M Canavan, Solicitor.

REASONS

1. The matter came before the tribunal by way of a remedy hearing, the tribunal having previously determined that the claimant's dismissal had been unfair but that any award should be reduced by one third.
2. Given the claimant's own conduct the tribunal did not consider that re-instatement or re-engagement were appropriate remedies. Nor were these remedies sought in argument. There was no dispute as to the duration of the claimant's employment, namely from October 2000 until 7 June 2002, giving a total of one completed years

service. The claimant's gross weekly wage was agreed as being greater than £250.00 and his net weekly wage was agreed at £220.00.
The issue for the tribunal was the level of compensation to be awarded for the loss

of statutory rights and the length of time in respect of which the compensatory award should be calculated. In that regard the tribunal had to consider, in particular, whether the claimant would have been dismissed in any event due to a falling off of work and whether the claimant had taken satisfactory steps to mitigate his loss in the way of seeking further employment.

3. The tribunal found that there had been a temporary diminution of work in the summer of 2002 and a further falling off of work commencing in November of 2002. The claimant, had he still been in the respondent's employment, would not have been dismissed if he had been prepared to travel. That was the respondent's evidence, given in examination in chief, and confirmed in response to the tribunal. It was suggested that, had any offer of work been made to the claimant which involved travelling he would have refused it. There was no corroboration of this evidence. Furthermore, the tribunal had heard much about the claimant's failings during the course of the previous hearing in the case and no serious issue was taken at that time as to the claimant's unwillingness to travel. The tribunal did not find the respondent's evidence in this regard particularly convincing. In any event, the tribunal regards the question of whether or not the claimant would have accepted work which involved a degree of travelling as being too speculative in the circumstances.
4. The tribunal found that, following the termination of his employment in June 2002, the claimant made forty five applications for employment through the Department for Employment & Learning between the dates of 26 June 2002 and 6 August 2004. He made some further applications between August 2004 and November 2004 but from December 2004 until the date of hearing in May 2005 he made no applications whatsoever. The claimant claimed to have made ten applications other than through the Department for Employment & Learning and also to have been seeking work through recruitment agencies. However, there was only one letter from a recruitment agency in support of this latter evidence referring to one application for work. The tribunal noted that eleven rejection letters and one appointment letter were submitted in support of the claimant's evidence. Of the eleven rejection letters two had been rejected for failure to apply within the time prescribed and one was rejected because the claimant did not meet the published criteria. The appointment letter related to temporary employment under the 'New Deal' scheme. The claimant had not sought employment outside the immediate vicinity of Derry due, he said, to his having no transport. In the light of these matters the tribunal was not satisfied that the claimant had made as much effort to mitigate his loss and obtain alternative employment as could reasonably have been expected. In the view of the tribunal the claimant should, if he had made appropriate efforts, have been able to find suitable employment within twelve months (fifty two weeks) of the termination of employment, allowing for the temporary employment which he did obtain between 14 October 2002 and 28 February 2003. The tribunal also took into account the level of employment and the trends in employment in the area at the relevant time.
5. In the light of these findings the tribunal calculates the sum payable to the claimant as follows:-

Basic Award

One year's completed service during which

the claimant was under the age of forty one

and over the age of twenty two equals one

week's pay at the statutory maximum

applicable as at 7 June 2002 - £ 250.00

Loss of statutory rights - £ 260.00

Compensatory Award

Fifty two weeks @ £220.00 per week - £11,440.00

TOTAL - £11,950.00

Less

Wages earned under New Deal scheme 14/10/02-

28/02/03 (twenty weeks @ £130.00) - £ 2,600.00

TOTAL - £ 9,350.00

Less

One third reduction as per tribunal's prior decision - £ 3,116.66

TOTAL - £ 6,233.34

6. Recoupment

The monetary award is £6,233.34. The prescribed element is £5,026.67. The periods attributable to the prescribed element are 8 June 2002 - 14 October 2002 and 1 March 2003 - 7 June 2003.

7. Interest

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

Chairman:

Date and place of hearing: 20 May 2005, Strabane.

Date decision recorded in register and issued to parties: