Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2006/1583_04.html
Cite as: [2006] NIIT 1583/04, [2006] NIIT 1583/4

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1583/04

CLAIMANT: Brian Hillick

RESPONDENT: Royal Mail

DECISION ON REMEDY

The unanimous decision of the tribunal is that:-

The respondent to pay to the claimant the sum of £1,185 by way of compensation.

Constitution of Tribunal:

Chairman: Mr M Davey

Panel members: Mr R Lowden

Mr P Sidebottom

Appearances:

The claimant was represented by Mr A Sands, Barrister-at-Law, instructed by J G O'Hare & Co, Solicitors.

The respondent was represented by Mr D Dunlop, Barrister at Law, instructed by Napier & Sons, Solicitors.

Reasons:

The matter came before the tribunal by way of a Remedy Hearing. The tribunal having, by Decision issued to the parties on 16 May 2006, determined that the claimant had been unfairly dismissed but that his own conduct contributed to his dismissal to the extent of 50%.

It was submitted on behalf of the claimant that a basic award should be made in his favour and that he should, in addition, be compensated for loss of his statutory rights. He also sought compensation for future loss and the loss of his share of a success bonus payable in the Royal Mail. It was indicated on the claimant's behalf that his original claim for reinstatement was withdrawn. Subsequent to the hearing, an adjournment having been allowed for the provision of information regarding the success bonus mentioned above, the claim for loss of the success bonus was withdrawn also.

The claimant's evidence was that, subsequent to his dismissal, he had been incapable of work and in receipt of incapacity benefit. He had claimed this benefit from the time of his dismissal (31 March 2004) until 17 January 2005. Thereafter he had not signed on for Jobseeker's Allowance, nor had he made any attempt to seek work. He had considered seeking work, but decided that, as he had been dismissed by the Royal Mail for aggressive behaviour, he should await the outcome of the case before seeking work. He had not, as at the time of the Remedy Hearing (21 June 2006) sought work. He had, prior to his period of employment with Royal Mail, worked in the catering industry as a waiter, employment which he had left on good terms.

It was submitted on the claimant's behalf that it was reasonable that he should have awaited the outcome of the case before seeking work and that, accordingly, a continuing loss at the agreed rate of £135 per week should be awarded from 1 April 2004 until 16 May 2006 (the date the decision on the liability issue was promulgated) and for a further period of six weeks which was, it was submitted, a reasonable period for him to find work.

For the respondent, it was submitted that no period of future loss should be allowed for at all. The claimant had been absent from work due to sickness for some time prior to the date of dismissal and had, for a further lengthy period, until 17 January 2005, continued to receive incapacity benefit. Over the course of that period it was reasonable to suppose that Royal Mail would have dismissed him on grounds of incapacity. In the alternative, it was not reasonable to believe that the claimant's failure to seek work was due to the reasons he had given, since he had made no effort to seek work since the date the tribunal had determined the liability issue and promulgated their Decision.

The tribunal considered it appropriate that the claimant's claim for reinstatement should be withdrawn and that compensation should be awarded. The parties were in agreement that all sums awarded would be subject to the 50% reduction found by the tribunal. The parties agreed that a basic award of £1,260, calculated on the basis of seven full years' service by the claimant during a period when he was above the age of 22 and below the age of 41 and applying his agreed gross wage of £180 per week should be awarded. The parties were also in agreement that the sum of £300 should be awarded for the loss of statutory rights. The claim originally made in respect of the success bonus was withdrawn.

As regards future loss, the tribunal did not accept the respondent's submission that the claimant would have been dismissed in any event before he recovered from his illness. It is possible that such a dismissal might have occurred. It is equally possible that it might not. In the absence of any evidence as to the respondent's policy in relation to such matters, and the details of the manner in which that policy is applied and administered, and in the absence of further information as to the nature of the claimant's illness, it seems to the tribunal inappropriate to speculate as to whether or not he would have been dismissed. Nor does the tribunal accept the submission put forward on behalf of the claimant that it was reasonable for him to take no steps with regard to seeking employment until the proceedings before the tribunal had been concluded. It may be that it is more difficult for a dismissed employee to obtain employment, but that does not absolve such an employee from his ordinary duty to mitigate his loss. In the tribunal's view the claimant should have been seeking employment as soon as he was capable of so doing, namely from 17 January 2005. Had he done so, the tribunal considers that he should have been able to obtain employment within the period of six weeks suggested on behalf of the claimant which the tribunal regards as a reasonable period.

Accordingly, compensation is payable as follows:-

Basic award, as described above: £1,260

Loss of statutory rights: £300

Compensatory award – 6 weeks @ the agreed net wage of £135 per week: £810

Total: £2,370

Less 50%: £1,185

Balance: £1,185

Recoupment:

The recoupment provisions do not arise as the claimant did not seek Jobseeker's Allowance.

Interest:

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

Chairman:

Date and place of hearing: 21 June 2006, Belfast

Date decision recorded in register and issued to parties: