Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 531/05

CLAIMANT: Ronald Perry

RESPONDENT: William Taylor

DECISION

The unanimous decision of the tribunal is that:-

1. The claimant was unfairly dismissed.

2. The claimant was wrongfully dismissed.

3. The claimant's claim of redundancy is dismissed.

4. The claimant's claims of unlawful deductions from wages is well-founded.

5. The claimant's claim for the failure to provide written statement of the reasons for his dismissal is well founded.

6. The claimant's claim that the respondent failed to provide him with itemised pay slips is dismissed, by agreement between the parties.

The calculation of the compensation is set out at the end of this decision. The total award is £5,160.11.

Appearances:

The claimant was represented by Mr Jonny Hoy.

The respondent represented himself.

1. The claimant's claim was that he had been unfairly and/or wrongfully dismissed by the respondent on 22 December 2004. The claimant also alleged that the respondent owed him money in outstanding wages. The claimant alleged that in a conversation when he asked the respondent for his outstanding wages the respondent put the claimant on notice because he could no longer afford him. The claimant also alleged that the respondent had not responded to his request for written reasons for his dismissal. The claimant also alleged that he had not received itemised pay-slips and the monies owed to him included the non-payment of holiday pay, the non-payment of a tax rebate and a Christmas bonus.
2. The respondent indicated in his response that the claimant had been dismissed. In his response to the Order for Additional Information the respondent stated that the reason for the dismissal was that an allegation of sexual harassment had been made against the claimant.
3. In his response to that Order the respondent did not accept that he owed the claimant any money for wages but did accept that he had not paid the claimant the Christmas bonus. The respondent stated that this bonus was a discretionary bonus that was paid on a performance basis and that the claimant's performance was not of a sufficiently high standard to warrant the payment of a bonus.
4. The respondent indicated that he had replied to the claimant's request for written reasons for his dismissal, by letter sent recorded delivery, although Royal Mail ultimately returned this letter to him marked "Not Collected". The respondent also made it clear that he had given to the claimant all outstanding pay slips.
5. Both parties gave evidence in person. Neither party called any witnesses in support of any contention in his case.

The issues

1. What was the reason for the dismissal?

2. Was the reason for the dismissal a potentially fair reason?

3. Whether the claimant's dismissal was fair.

4. Whether the claimant was entitled to a redundancy payment.

5. Whether the claimant is entitled to notice pay, holiday pay and the Christmas bonus.

6. Whether the claimant suffered unlawful deductions from wages.

7. Whether the respondent gave the claimant written reasons for his dismissal.

8. Whether the respondent had provided itemised pay slips.

The claim for itemised pay-slips was not pursued, by agreement of both parties.

The tribunal found the following facts proved on a balance of probabilities:

6. The claimant had been employed by the respondent as a general labourer from August 2000 until his dismissal on 22 December 2004.
7. The claimant earned £117.86 net per week. The tribunal is satisfied that the claimant did not always receive his weekly wages in full or on time.
8. On 21 December 2004 the claimant approached the respondent and raised with him the issue of unpaid wages. The respondent told the claimant to come back to him the next day and that he would be paid.
9. The following day the claimant again approached the respondent and the respondent told him that rather than give him his outstanding wages the respondent was giving him a week's notice instead. The reason given for the dismissal by the respondent was that he could no longer afford the claimant.
10. The claimant approached the respondent on two further occasions in the weeks following the dismissal. The tribunal accepted that the respondent paid the claimant two separate sums of money totalling £300, leaving an outstanding amount of £154 in unpaid wages.
11. The claimant was entitled to notice pay at four weeks. The tribunal accepted that this had not been paid.
12. The claimant lodged an originating application on 18 March 2005 claiming unfair dismissal and wrongful dismissal.
13. The respondent lodged a response on 17 May 2005 in which he conceded the dismissal but gave no reason for the dismissal. In his response to the order for Additional Information the respondent said that the reason for the dismissal had been allegations of sexual harassment against the claimant. This was the reason for the dismissal that the respondent relied on in evidence.
14. The tribunal accepted that at the date of the dismissal the claimant was entitled to notice pay of one week x four years, (£471.44) and that this was not paid.
15. The tribunal accepted that the respondent did supply the claimant with itemised pay-slips.
16. The tribunal accepted that a Christmas bonus was paid in 2002 in lieu of a 2002 - 2003-pay rise. The tribunal did not accept the respondent's contention that it was a performance-related bonus. The tribunal did not accept that the bonus in 2003 had been refused on the basis that the claimant's work performance did not warrant it.
17. The tribunal accepted that the claimant's claim for outstanding notice pay, the tax rebate and holiday pay were well founded. The respondent did not challenge these.
18. The tribunal found that although the claimant had not in fact seen the written statement of the reasons for his dismissal until the hearing the tribunal accepted the respondent had replied to his request for a written statement of reasons.
19. The evidence from the claimant in respect of the loss he had suffered since his dismissal was unchallenged by the respondent. The tribunal accepted that the claimant had made efforts to look for work since his dismissal. These efforts included looking in the local papers and looking at the Job market windows and going to England to look for work. The tribunal accepted that while the claimant had not made robust efforts to obtain work it accepted that it could be difficult for the claimant at his age (58, almost 59) to secure labouring work.
20. The tribunal accepted that the respondent did reply to the claimant's request for a written statement of reasons for his dismissal. The tribunal accepted that this reply had been sent to what had been the claimant's address while he had been working with the respondent but the claimant had left that address and had not received the written statement.
21. The tribunal accepted that the claimant was not in receipt of state benefits. The tribunal did not accept that there was a connection between the claimant's housing arrears and the dismissal. There was no evidence before the tribunal that these arrears had any connection to the dismissal.

The Law

Unfair Dismissal

Article 126 of the Employment Rights (Northern Ireland) Order 1996 sets out the right not to be unfairly dismissed. Article 130 of that Order sets out when the reason for a dismissal is of a kind such that can justify the claimant's dismissal.

The provisions of Article 130 of that Order set out when a dismissal is fair or unfair and include;

reasons relating to the capability or qualifications of an employee;

reasons relating to the conduct of the employee;

that the employee was made redundant;

that to continue to allow the employee to work in that job would have been against a law;

Or

for some other substantial reason.

The tribunal also considered Article 135 of the Order which sets out provisions whereby an employee who is dismissed shall be regarded as unfairly dismissed if the reason or the principal reason for the dismissal is that the employee alleged that the employer had infringed a right of his that is a relevant statutory right.

Unauthorised Deductions from Wages

The tribunal considered Article 45 of The Employment Rights (Northern Ireland) Order 1996, the right not to suffer unauthorised deductions unless such deductions were;

required or authorised by virtue of a statutory provision or a provision of the worker's contract;

Or

the worker had previously signified in writing his agreement or consent.

The Tribunal's Conclusions

Unfair Dismissal

The tribunal had to decide what was the reason for the dismissal and if the reason for the claimant's dismissal could be described as being a potentially fair reason.

The tribunal was not satisfied that the reason the respondent gave the claimant at the time of his dismissal was the reason for his dismissal. Nor was the tribunal satisfied that the subsequent reason the respondent gave for the dismissal was the reason for the dismissal. The tribunal was not satisfied that any allegations of sexual harassment existed and no supporting evidence was called to support that case.

The tribunal was satisfied that the reason for the claimant's dismissal was that he had requested his unpaid wages.

The tribunal then had to decide if this reason was a reason that would make the dismissal in these circumstances fair.

The tribunal considered that the claimant had been dismissed for having asked the respondent for his unpaid wages and that this was the claimant asserting his statutory right to do so.

This brought the dismissal in these circumstances within the provisions of Article 135 of the Employment rights (Northern Ireland) Order 1996, which makes such a dismissal automatically unfair, and the tribunal found accordingly.

The tribunal also did not accept that the respondent had established that he had dismissed the claimant for any of the reasons that could make the dismissal fair. The tribunal was of the view that the respondent had not discharged the legal burden on him by virtue of those provisions to show that the dismissal of the claimant by him was for a reason that was fair. Accordingly the claimant's claim for unfair dismissal could succeed.

Breach of Contract

The tribunal found that the respondent had failed to pay to the claimant his notice pay and accordingly the claimant's claim for wrongful dismissal could succeed.

Unauthorised Deductions from Wages

Although the respondent did pay to the claimant some monies in the weeks subsequent to the dismissal the tribunal found that the respondent did not pay to the claimant his notice pay to which he would have been entitled. The tribunal found that the claimant had suffered unlawful deductions from his wages and at the date of the hearing this amounted to £154.00 in outstanding wages, £153.07 holiday pay, £6.50 for an unpaid tax rebate and an unpaid Christmas bonus (2003) of £250.00.

The tribunal found that neither of the accepting provisions of Article 45 applied and that the respondent had made unauthorised deductions from the claimant's wages.

Compensation

The tribunal has considered Article 152 of the Order governing compensation and accordingly this shall consist of a basic award and a compensatory award.

The Basic Award

This has been calculated in accordance with Article 153 of the Order.

1 weeks gross pay x 4 x 1½ = 6 - £125.00 x 6 = £ 750.00

(to reflect claimant's age)

The Compensatory Award

The tribunal has considered Article 157 of the Order and has taken into account the provisions of that Article in calculating this.

The tribunal took into account the claimant's loss of wages since his dismissal. It noted that the claimant had not received benefits.

Loss @ net pay since December 2004 –June 2005

(27 weeks @ £117.86/week) = £3,182.22

Loss @ Notice Pay x 4 weeks (4 weeks @ £117.86/week) = £ 471.44

Outstanding Wages: = £ 154.00

Tax Rebate: = £ 6.50

Holiday Pay (Net): = £ 153.07

Christmas Bonus 2003: = £ 250.00

Total: = £4,217.23

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Future Loss

The tribunal took into account a number of factors to assist it in reaching a just an equitable amount for future loss. These included the age of the claimant, the kind of employment he had been doing, the ability of the respondent to pay. The tribunal awarded the claimant eight weeks future loss on the basis that the tribunal balanced the likelihood of the claimant securing work as a general labourer with the respondent's ability to pay the compensation.

8 weeks @ £117.86/week = £ 942.88

Total Compensation = £5,160.11

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

Chairman:

Date and place of hearing: 1 July 2005, Belfast.

Date decision recorded in register and issued to parties: