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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Temple v Kestrel 3D Ltd [2005] NIIT 2589_04 (3 November 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2005/2589_04.html
Cite as: [2005] NIIT 2589_4, [2005] NIIT 2589_04
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CASE REF: 2589/04
CLAIMANT: Andrew Temple
RESPONDENT: Kestrel 3D Limited
The unanimous decision of the tribunal is that correct respondent is Kestrel 3D Limited and that the claimant was unfairly dismissed by the respondent. The tribunal orders the respondent to pay £15,339.20 compensation to the claimant.
Constitution of Tribunal:
Chairman: Ms J Knight
Panel Members: Ms M Mulligan
Mr D Edmont
Appearances:
The claimant was represented by Mr R Shiels BL instructed by Donard King & Co.
The respondent was unrepresented and did not appear.
Issues to be determined by the tribunal.
Who was the correct respondent and was the claimant unfairly dismissed? An application to amend the proceedings to include a claim for breach of contract was withdrawn on behalf of the claimant at the outset of the hearing.
The tribunal considered the originating claim, the respondent's notice of appearance, the oral evidence of the claimant and documentation furnished on behalf of the claimant and correspondence with enclosures from the respondent.
At the hearing the claimant contended that he had been employed by Kestrel 3D Limited. The tribunal ordered the respondent to provide answers to written questions and disclosure of documentation and adjourned the hearing to facilitate a response. At the reconvened hearing the tribunal considered the representations made on behalf of the claimant that the correct respondent was in fact Kestrel 3D Limited in the light of the response provided by Mr O'Mahoney Finance Director and the oral evidence of the claimant.
FINDINGS OF FACT
Kestrel 3D is a company registered in the Republic of Ireland, with four wholly owned subsidiary companies namely, Kestrel 3D Aerospace Ltd, Belfast, Kestrel 3D Forthvalley Ltd, Kestrel 3D Dundee Limited and Multimedia Team Limited.
Mr Ken O'Mahoney is a director in all of these companies with wide ranging responsibilities including finance, personnel and human resources. He was the claimant's line manager.
The claimant commenced employment as a senior sales manager in October 2002 and was initially based in Alva, Scotland in the Kestrel 3D Forthvalley Limited. The tribunal is satisfied that he was not provided with written terms of his employment and that he had not received a document furnished by the respondent and described as a "draft copy of the Employment agreement" between the claimant and Arius 3D Limited Forthvalley Limited, which company subsequently changed its name to Kestrel 3D Limited.
The claimant was promoted to the position of General Manager and was transferred on 1st June 2003 to Belfast where he was based at the offices of Kestrel 3D Aerospace Ltd at Queen's University. From that date the tribunal was satisfied that the claimant ordinarily worked in Northern Ireland.
On 21st July 2003 the claimant signed a stock option agreement. This agreement was between the claimant and Kestrel 3D Limited. In this agreement the claimant is described as being engaged to provide services to the company as General Manager Ireland and the purpose of the agreement is to grant options to purchase common shares of Kestrel 3D Limited to amongst others, employees and directors of the company.
The claimant was issued with payslips by Kestrel 3D Forthvalley Ltd when he was employed in Scotland and payslips by Kestrel 3D Aerospace Belfast when he was employed in Northern Ireland. Nevertheless it was common case that there had been no break in the claimant's continuity of employment when he was transferred to Belfast.
The claimant was suspended from his employment on 4th May 2004 by Mr O'Mahoney. The claimant was informed that there had been a vote of no confidence in him and that there would be an investigation. The claimant enquired but was not informed as to the basis of the investigation or the nature of any disciplinary charges against him. The claimant was subsequently dismissed on 30th June 2004, without being invited to a
disciplinary investigation or hearing. The claimant afterwards learned of his dismissal in a telephone call.
The claimant's monthly net earnings was agreed to be £1800.00 per month. He claimed that he was not paid his full salary for June 2004 but did not provide vouching documentation for this.
The claimant lodged a complaint of unfair dismissal against Kestrel 3D Limited dated 29th September 2004. A notice of appearance was lodged by Mr O'Mahoney as representative stating that the correct respondent was Kestrel 3D Aerospace Limited. A chairman of the Industrial Tribunals and the Fair Employment Tribunal made an order accordingly, amending the title of the proceedings, subject to any decision of the tribunal in due course as to the proper respondent or the proper title of the respondent.
Mr O'Mahoney had written to the tribunal prior to the hearing to advise that the respondent did not intend to appear or be represented and indeed advised the tribunal that the directors of Kestrel 3D Limited had resolved to wind up the company and all its subsidiaries.
The claimant received jobseeker's allowance between 30th June 2004 and 26th September 2004. He subsequently obtained employment in the prison service and then with Securicor.
On the basis of these facts the tribunal determines:-
The tribunal is satisfied on a balance of probabilities that the correct respondent is Kestrel 3D Limited as there was no break in the claimant's continuity of employment and this was agreed by the parties. The tribunal took into account that Kestrel 3D Limited had entered into a stock option agreement with the claimant and did not consider that it would have done this had the claimant not been an employee.
The tribunal therefore amends the title of the proceedings accordingly. The tribunal was satisfied that the respondent, through Mr O'Mahoney had notice of the proceedings and of the dates for hearing.
The tribunal then considered whether the claimant had been unfairly dismissed. The fact of dismissal was not in dispute.
Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:
(1) In determining for the purposes of this part whether the dismissal of an employee is
fair or unfair, it is for the employer to show –
(a) the reason (or if more than one, the principal reason) for the dismissal,
and
(b) that it is a reason of a kind falling within paragraph (2) or some other
substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held.
The tribunal decided, pursuant to its powers under Regulation 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to dispose of the proceedings in the absence of the respondent. The tribunal considered all
the information in its possession made available to it by the parties. In the absence of oral evidence on behalf of the respondent, the tribunal could not conclude that the respondent had discharged its burden of proving on a balance of probabilities that the reason for the claimant's dismissal was fair. Accordingly the tribunal determined that the claimant had been unfairly dismissed.
Remedy
The tribunal was satisfied that the claimant had mitigated his loss. The tribunal considered that it was just and equitable in all the circumstances of the case to award the claimant compensation. The tribunal was not provided with proof and therefore did not award any sum in respect of the alleged shortfall of wages for June 2004. The tribunal considered that it was appropriate in all the circumstances to award 12 weeks' future loss to the claimant. The claimant had presented as articulate and confident and the tribunal was satisfied that the claimant should be able to obtain better paid employment within that period, especially in view of the claimant's stated intention to seek work elsewhere in the UK. The tribunal therefore awarded compensation calculated as follows:
Basic Award (Art153) £270.00
1 full years service X 1(age multiplier) X statutory maximum
Week's pay
Compensatory Award (Article157) £12,659.71
Net Loss of earnings from 30.06.04 until 03.11.05
Based on monthly net pay £1800 £28,977.51
Less earnings
Prison Service 20.09.04 -30.05.05 £10,810.41
(8 months and 10 days at net monthly pay
£1297.96)
Securicor 31.05.05 to date £5,507.39
(5 months and 3 days at net monthly pay
£1080.17)
Future loss of earnings
Difference between current and previous monthly net pay £2,159.49
£719 X 12
Loss of statutory rights £250.00
TOTAL AWARD £15,339.20
Interest.
This decision is a relevant decision under the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Recoupment
Your attention is drawn to the notice below which forms part of the decision of the tribunal. The Employment Protection (Recoupment of JSA and IS) Regulations (Northern Ireland) 1996 apply.
(a) Total Monetary Award £15,339.20
(b) Prescribed Element £12,659.49
(c) Prescribed Period 30th June 2004 until 3rd November 2005
(d) Excess of (a) over (b) £2,679.71
Chairman:
Date and place of hearing: 3 November 2005 , Belfast. 21st October
Date decision recorded in register and issued to parties: