Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 306/06;

416/06

CLAIMANT: Kieran Joseph Harkin

RESPONDENT: Kevin Watkins T/A Watkins Scaffolding

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr Lindsay

Mr Patterson

Appearances:

The claimant was not represented at hearing but the tribunal had before it written submissions presented by Mr M Canavan, Solicitor, of McGuinness & Canavan, Solicitors.

The respondent was not represented at hearing but the tribunal had before it written submissions presented by W J Hasson, Solicitor.

DECISION ON APPLICATION FOR REVIEW

The decision of the tribunal is that on foot of Rule 36 (3) of Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal grants the respondent's application to review the tribunal's decision as promulgated and the tribunal orders that the decision as originally promulgated shall be revoked in part and shall as a consequence of this be amended. The decision, as amended, is appended to this decision. In all other respects, save as hereby amended, the tribunal's decision as promulgated shall stand.

REASONS

1. In this matter the unanimous decision of the tribunal was that the claimant was unfairly dismissed by the respondent and the tribunal ordered the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £8,816.16. The tribunal's decision was promulgated on 9 May 2007.
2. By letter dated 22 May 2007 the respondent's legal representative William J Hasson, Solicitor, wrote to the Office of the Tribunals ("the Office") requesting a review of the decision insofar as it related to the 20% up-lift in compensation awarded to the claimant. The basis for the representative's request for review was stated as follows in the said letter:-

"

(i) the provisions of Article 130A of the Employment Rights (Northern Ireland) Order 1996 are not engaged in a case such as this in which the claimant has less than one year's service, this not being a provision (like Article 136 of the 1996 Order) exempted from Article 126 by the provisions of Article 140 of the 1996 Order.

(ii) The matter of a potential up-lift to compensation was not considered at hearing and the respondent was not given an opportunity to comment or make submissions on any potential up-lift: see Laurie -v- Holloway [1994] ICR32.

(iii) The interests of justice therefore call for the matter to be reviewed. "

3. The Chairman of the tribunal considered the request for review and bearing in mind respectively Rules 34 and 35 of the Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ("the Rules"), considered that the matter ought properly to proceed to be listed, firstly, to establish the respective arguments upon whether there ought properly to be a review of the tribunal's decision, and secondly, if a tribunal were satisfied that there ought to be such a review, for the review hearing to proceed immediately thereafter.
4. In consequence of further correspondence between the Office and the respective representatives acting for the claimant and the respondent, the parties indicated that they were each content to rely upon written submissions and that they did not require to attend an oral hearing. Accordingly, the Office received from the representatives written submissions dated, respectively, 28 June 2007 on behalf of the respondent, and 29 June 2007 on behalf of the claimant.
5. The matter was duly listed for hearing on 2 July 2007 and the tribunal sat to consider the written submissions that were before it, in pursuance of Rule 36 of the Rules.

THE SUBMISSIONS

The Respondent's written submissions

6. For the respondent, it was submitted that the tribunal had rightly decided that it had jurisdiction to entertain the claimant's claim that he had been unfairly dismissed under Article 126 and Article 132 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"). This was because the requirement to have completed one year's continuous service (which on the facts had not been attained by the claimant in this case) was not required for the purposes of an Article 132 complaint (in that regard see Article 140 (3) (c) of the 1996 Order). However the tribunal had proceeded to determine that the dismissal was additionally unfair under Article 130A of the 1996 Order (reference being made to paragraph 26 of the tribunal's decision as promulgated). This, it was submitted, was a free-standing basis under which an impugned dismissal might be said to be unfair. However, it was submitted that the right to claim that a dismissal was unfair by operation of Article 130A was not exempted from the requirement to have completed one year's service; it was not one of the provisions exempted by Article 140 of the 1996 Order. In order to pursue a claim of unfair dismissal by operation of Article 130A, the claimant needed to show one year's continuous service. It was submitted that the tribunal had misdirected itself in that regard. Accordingly the tribunal's up-lift of compensation in this case (set at 20%) was incorrect. It was further submitted on behalf of the respondent that the matter of up-lift had not been raised by any party at the hearing of the matter and for the tribunal to proceed to determine an up-lift in the absence of argument would amount to a denial of natural justice. Reference was made to the case of Laurie -v- Halloway [1994] ICR32. The respondent had not been given an opportunity to make representations on any appropriate up-lift.

The Claimant's written submissions

7. For the claimant, the tribunal was referred to Part XI of the 1996 Order. It was submitted that it was quite clear from the evidence adduced by the claimant that the respondent was in breach of Article 130A of the 1996 Order. Articles 126, 130A and 140 of the 1996 Order were all contained in Part XI of the Order and pertained to the right not to be unfairly dismissed. References therefore within Part XI were implicitly relating to unfair dismissal matters. The amended Article 130A therefore when it stated that "an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed …." was referring directly to any unfair dismissal whether grounded upon one year's continuous service or by way of assertion of a statutory right (and thus exempt from the service requirement). It was submitted that the claimant therefore fell squarely within the terms of Article 130A. As such, given the respondent's procedural unfairness in dismissing him, the claimant was entitled to an up-lift in his award as had been provided for in the tribunal's decision. Further, regarding the issue of procedural unfairness, whilst the claimant's representative did not have a full note of what he had said during the hearing, it was suggested that there had possibly been an allusion to the issue of procedural unfairness in the way the claimant was dismissed, and to Article 130A of the 1996 Order. The respondent's defence had been based on the assertion that the claimant had not been dismissed; the alternative argument was not available to the respondent.

THE TRIBUNAL'S DETERMINATION

8. The tribunal has carefully noted the respective written submissions made on behalf of the respondent and the claimant in this application for a review of the tribunal's decision. Firstly, the tribunal considered the respondent's submission regarding the necessity or otherwise to have completed one year's continuous service in order to avail of the operation of Article 130A of the 1996 Order. As is mentioned in the decision as promulgated, Article 130A was introduced into the 1996 Order on foot of the Employment (Northern Ireland) Order 2003 ("the 2003 Order"). This provides that an employee who is dismissed shall be regarded for the purposes of that part of the 1996 Order as unfairly dismissed if the employer has failed to follow the statutory dismissal procedures that are made applicable. These statutory dismissal procedures arise from the 2003 Order and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 ("the 2004 Regulations"). Taken together, the effect is that in an appropriate case the tribunal may enhance compensation (as it did in this case) by a percentage amount of up to 50%. The argument made on behalf of the respondent is that, when one has regard to Article 140 of the 1996 Order, one sees therein a list of exceptions to the statutory qualifying period (one year) that would otherwise have to be attained in order to avail of the entitlement to claim unfair dismissal. Included in what is a fairly lengthy list of exemptions to the "one year rule" are various statutory qualifications. However the tribunal does note, as it has been invited on behalf of the respondent to do, that nowhere in that list of statutory exemptions is there any mention made of Article 130A of the 1996 Order. In seeking some clarification or explanation as to why that might be the case with a view to reaching a determination as to whether or not to grant the respondent's application for a review on that ground, the tribunal notes that it was not presented as any further argument on behalf of either party save for the respondent's side's assertion that, in effect, 130A is not exempted by the provisions of Article 140, and in opposition to that argument the claimant's side's argument that Article 130A, being as it is contained within Part XI of the 1996 Order in conjunction with Articles 126 and 140, is referring directly to any manner of unfair dismissal, whether arising on foot of one year's qualifying continuous service or otherwise on foot of any of the statutory exemptions to that qualifying period.
9. In the absence of any further argument on the point, the tribunal gave further consideration to why it might be that there was no express mention made of Article 130A in the list of statutory exemptions contained in Article 140. Some assistance might be provided by the Department for Trade and Industry's guide for employers that is entitled "Dismissal: fair and unfair: a guide for employers". Appendix Part 2 – "Dismissal without following statutory dismissal and disciplinary procedures". This contains the following extract (which is a commentary upon the equivalent under English law of Article 130A of the 1996 Order):-

"Where statutory dismissal and disciplinary procedures apply and are not treated as having been complied with, it will be unfair to dismiss an employee without their having been followed, if failure to follow them is wholly or mainly the fault of the employer. Employees who wish to complain that they have been unfairly dismissed for this reason must have completed one year's continuous employment at their effective date of termination".

In the absence of any other authoritative commentary, cited caselaw, or other observation being contained in the respective written submissions, the tribunal regards this DTI commentary as being of some assistance concerning the omission of any mention of Article 130A in Article 140 (3) of the 1996 Order, as amended.

10. This being the case, the tribunal prefers the respondent's submission to that of the claimant. Thus the tribunal takes the view that the "one year rule" exemption as provided for by Article 140 of the 1996 Order in respect of a number of statutory heads of claim is not applicable in respect of Article 130A of the 1996 Order. That being the case, the conclusion is that the tribunal's decision as promulgated cannot stand insofar as it provides for a finding of unfair dismissal grounded upon Article 130A and as a consequence proceeds to make an award of additional compensation upon that basis. The decision therefore must be revoked in part.
11. In the light of this determination on the tribunal's part, it is unnecessary for the tribunal to deal with the second head of review as submitted on behalf of the respondent.
12. Therefore on foot of Rule 36 (3) of the Rules the tribunal grants the respondent's application to review the tribunal's decision as promulgated and the tribunal orders that the decision as originally promulgated shall be revoked in part and shall as a consequence of this be amended. The decision, as amended, is appended to this decision. In all other respects, save as hereby amended, the tribunal's decision as promulgated shall stand.

Chairman:

Date and place of hearing: 2 July 2007, Belfast.

Date decision recorded in register and issued to parties: