Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/1594_05.html
Cite as: [2007] NIIT 1594_05, [2007] NIIT 1594_5

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2355/06

CLAIMANT: Kyle Courtney

RESPONDENT: RJH Haulage Ltd operating as Initial City Link

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal awards him £10,887.62 in compensation.

Constitution of Tribunal:

Chairman: Ms Bell

Members: Mr McIlwaine

Mr McAnoy

Appearances:

The claimant appeared and represented himself.

The respondent did not appear and was not represented.

1. The claimant claimed that he was unfairly dismissed for reasons unknown during a period of absence from work due to an injury.

The respondent admitted the claimant had been dismissed. The respondent stated in its response that as no sick line was received the claimant was not paid, also that several attempts were made to contact the claimant on his company mobile phone but no reply was made to its voicemails or missed calls.

ISSUES TO BE DETERMINED BY THE TRIBUNAL

3. Was the claimant unfairly dismissed?

EVIDENCE

4. The tribunal considered the claim, response and documentation handed in by the claimant, including a contract of employment, guide from the respondent outlining notification requirements on absence due to sickness or injury and other matters, a letter dated 1 August 2006 from the claimant to the respondent, payslips from the claimant's employment with the respondent and current employment, and a witness statement from Mr Mervyn Armstrong.

5. The tribunal having heard the claimant's evidence and considered the documentation before it found the following facts:-

FINDING OF FACTS

6. The claimant was employed by the respondent as a delivery driver between 19 April 2004 and 23 July 2006.

7. The claimant's normal contractual working hours were 0700 hrs to 1900 hrs Monday to Friday, and Saturday mornings on a rota system. The respondent was not under the claimant's contract obliged to provide the claimant overtime.

8. In June 2006 the claimant was asked by the respondent to fill in a form providing his personal details, this included his personal phone number.

9. The claimant injured his ankle on 8 July 2006.

10. In accordance with the respondent's sickness absence notification requirements the claimant phoned Terry Dineen of the respondent company at 6.40am on Monday 10 July 2006 and informed him of his injury, as a result of which he would be absent from work for at least a week. The claimant then switched off his company mobile phone.

11. On 14 July 2006 Mervyn Armstrong, a colleague of the claimant, collected the claimant's wages at his request from the respondent. Mr Armstrong called to see the claimant on 16 July 2006 and the claimant asked him to inform Mr Dineen that he would not be in work for the following week and was going to see the doctor as soon as he could get an appointment.

12. On 17 July 2006 the claimant sought a doctor's appointment, his doctor was however off on holiday and he could not get an appointment with another doctor at Tramways Medical Centre, Glengormley, until 21 July 2006.

13. On 21 July 2006 the claimant was given a doctor's sick line for the period 10 July 2006 to 24 July 2006, on receipt of which he phoned Hugh Bolton, another driver employed by the respondent in the Glengormley area and met with him and gave to him his sick line to pass on to the respondent on his behalf.

14. The claimant asked Mr Armstrong to again pick up his wages on 21 July 2006 and Mr Armstrong phoned the claimant that evening to inform him that he had been given a white envelope for the claimant.

15. On 23 July 2006 Mr Armstrong gave the white envelope from the respondent to the claimant. The claimant opened the envelope to find only a P45 showing his employment as ended from 13 July 2006.

16. The claimant phoned the respondent's managing director, Howard Wilson on 24 July 2006 to ask why he had received his P45 and was informed by Mr Wilson it was assumed that he had left. The claimant understood that Mr Wilson arranged to speak to Janette Dickinson, the respondent's financial director, and to phone him back the next day, but did not hear any further from him. The claimant tried to call Mr Wilson on 27 July 2006 without success.

17. On 26 July 2006 a driver employed by the respondent called at the claimant's home seeking the claimant's company van keys and company mobile phone. The claimant was out at the time and the driver spoke with the claimant's father. This is the only call that the claimant is aware of having been made on behalf of the respondent to his home.

18. The claimant sent a letter on 1 August 2006 to the respondent requesting written reasons for his dismissal, but no response was received.

19. The claimant received jobseeker's allowance from 29 July 2006 to 29 September 2006, he did not continue his claim when he went to Germany for a month. On his return from Germany he registered with Driver Hire on 1 November 2006 and has been working for them since. The claimant has unsuccessfully applied for a number of jobs since his employment terminated with the respondent.

20. Under his contract of employment the claimant was paid at £5.20 per hour for the first 48 hours worked and thereafter £7.80 per hour. The normal amount for a week's pay due to the claimant under his contract of employment was at least £343.20 gross.

21. The claimant's average wage based on payslips produced was £373.10 gross and £286.33 net.

22. Since registering with Driver Hire the claimant has earned £529.86 net.

THE LAW

23. Part 1, Schedule 1 of the Employment (Northern Ireland) Order 2003 (hereinafter referred to as the “2003 Order”) sets out standard dispute resolution procedures which must be followed where an employer is contemplating dismissing an employee, and a modified procedure where a dismissal has taken place.

24. Under Article 130A(1) of the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as the “1996 Order”) an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if:-

(a) one of the procedures set out in Part 1 of Schedule 1 to the 2003 Order (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

25. Article 154(1A) of the 1996 Order provides for the increase of the basic award to the amount of four weeks pay where an employee is regarded as unfairly dismissed by virtue of Article 130A(1).

26. Article 17(3) of the 2003 Order provides that an industrial tribunal shall (subject to paragraph 4) increase any award which it makes to the employee by 10% and may, if it considers just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%, where it appears to the tribunal that -

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure.

27. Under Article 124 of the 1996 Order an employee continuously employed for a period of not less than one year is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee's dismissal if the employee's contract of employment is terminated by the employer without notice. Article 125(2)(b) provides that an industrial tribunal shall make an award that the employer pays to the employee a sum equal to the amount of two weeks' pay where an industrial tribunal finds a complaint well founded that the employer unreasonably failed to provide a written statement under Article 124.

APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES

28. Based on the claimant's claim, oral and documentary evidence and the respondent's response the tribunal is satisfied that the claimant was dismissed without reason being given to him at the time or afterwards. The claimant sought written reasons for his dismissal but did not receive same. Statutory minimum dispute resolution procedures required to be followed under the 2003 Order were not complied with and there was no evidence before the tribunal to contradict this having been wholly or mainly attributable to the failure by the respondent to do so.

29. The tribunal accordingly finds the claimant to have been unfairly dismissed and the respondent to have unreasonably failed to provide a written statement under Article 124 of the 1996 Order.

30. The tribunal finds that the claimant is entitled to be compensated for being unfairly dismissed as follows:

BASIC AWARD

31. (i) Complete years of service - 2.

Age at dismissal - 29.

Week's pay (statutory maximum at time of dismissal applies) - £290.

Years in which claimant was not below the age of 22 - 2.

2 x 1 x 290 = £580 as this is less than the amount of four weeks pay the basic award is increased under Article 154(1A) to 4 x £290 = £1,160.

COMPENSATORY AWARD

32.

(i)

Loss of earnings from 14 July 2006 to 28 February 2007 excluding the period between 29 September to 1 November 2006 for which the tribunal does not consider it just and equitable that the claimant receives compensation:-

28 weeks x £286.33 = £ 8,017.24

Loss of statutory rights = £ 200.00

INCREASE

33. Under Article 17 of the 2003 Order -

10% increase of basic and compensatory awards - £9,377.24 = £ 937.72

AWARD FOR FAILURE TO PROVIDE WRITTEN REASONS OF DISMISSAL

34. £286.33 x 2 = £ 572.66

Total award £10,887.62

RECOUPMENT

35. The claimant received job seeker's allowance between 29 July 2006 and 29 September 2006 at £114.70 per fortnight. The recoupment regulations apply to this decision.

36. The total monetary award is £10,887.62.

37. The prescribed element is £8,017.24.

38. The period to which the prescribed element relates is 14 July 2006 to 28 February 2007.

39. The amount by which the total monetary award exceeds the prescribed element is £2,870.38.

INTEREST

40. Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing: 28 February 2007, Belfast

Date decision recorded in register and issued to parties:

Case Ref No: 2355/06

CLAIMANT: Kyle Courtney

RESPONDENT: RJH Haulage Ltd operating as Initial City Link

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME SUPPORT

1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£
(a) Monetary award	10,887.62
(b) Prescribed element	8,017.24
(c) Period to which (b) relates:	14 July 2006 to 28 February 2007
(d) Excess of (a) over (b)	2,870.38

The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker's Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker's Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.