Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1590/07

CLAIMANT: Alan (George) Cairns

RESPONDENT: Geoff Baird, Craigmore

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed, that his claim in respect of the respondent's unreasonable failure to provide a written statement of the reasons for dismissal is well-founded, that the respondent was in breach of contract in his failure to pay notice pay to the claimant and that, in total, the claimant be awarded £5,506.00.

Constitution of Tribunal:

Chairman: Mr Palmer

Members: Mr Black

Mr Miller

Appearances:

The claimant was represented by Ms Rice, Barrister-at-Law, instructed by Conor Downey & Company, Solicitors.

The respondent did not appear, nor was he represented.

The claim

1. The claimant claims:-

(1) unfair dismissal;

(2) seeks an award in respect of the respondent's unreasonable failure to provide a written statement of the reasons for dismissal; and

(3) breach of contract in respect of the non-payment of notice pay.

Evidence

2. Evidence was given by the claimant, and on his behalf, particularly in relation to the written statement of reasons claims, by Mrs Seaneen Carla Duggan of Conor Downey & Company.

Documentation

3. The claimant supplied us with a number of documents, which we considered in arriving at our findings.

The respondent's response to the claimant's claim (the IT3)

4. In reaching our conclusions we took account of the matters set out by the respondent in the response form.

Findings of fact

5. We have considered all the evidence and documentation (including the response) and we make the following findings:-

(1) The claimant was born on 27 March 1966.

(2) He commenced employment with the respondent in February 2001 as a Service Engineer and was promoted to the post of Service Manager in November 2005.

(3) The claimant was injured in a work-related accident in June 2006 (the accident), but continued working some adjustments having been made to his role.

(4) Up until the accident occurred the claimant had taken very little time off on sick leave.

(5) In August/September 2006, due to the accident, the claimant was off ill for two weeks with severe neck pain and loss of power in his right arm.

(6) During the 2006 Christmas break the claimant again became ill.

(7) Towards the end of 2006 the claimant telephoned the respondent, explained that he was ill and that he intended to consult his GP. The respondent replied that that was fine.

(8) The claimant self-certified for the first week of January 2007 and thereafter sent in GP sickness certificates.

(9) In June 2007 the claimant realised, from his bank statement, that his Statutory Sick Pay (SSP) was not being paid into his account.

(10) When he discovered this the claimant attended the Jobs and Benefits Office to enquire about some financial support and there the clerk raised a query about SSP with the respondent.

(11) Eventually, after the intervention of HM Revenue & Customs, the matter of the claimant's entitlement to outstanding sums in respect of SSP was confirmed.

(12) HM Customs & Revenue wrote to the claimant on 15 August 2007 stating, inter alia, that the amount of SSP outstanding, up to and including 30 April 2007, was £566.66.

(13) The £566.66 was discharged in mid-September 2007.

(14) The HM Customs & Revenue letter referred to (which is dated 15 August 2007) indicates that the claimant's employment ended on 30 April 2007. This was the first indication that the claimant received that he had been dismissed by the respondent.

(15) The claimant had taken out a policy of insurance with the Norwich Union to cover mortgage repayments in the event of illness/unemployment.

(16) A section of the application for benefit under the policy had to be completed by the employer.

(17) The claimant completed his part of the form in June 2006.

(18) There is a provision in the section of the application form for the employer to state the date the claimant's employment ended and the respondent stated that that date was 30 April 2007.

(19) This document confirms the dismissal date, namely 30 April 2007, which is the date of dismissal claimed by the claimant.

(20) Prior to dismissal no contact was made by the respondent with the claimant with regard to the claimant's employment.

(21) The claimant was not informed by the respondent that his employment had been terminated.

(22) The respondent terminated the contract of employment on 30 April 2007 and we are satisfied that the claimant was not aware of the termination until August 2007.

(23) No interview or meeting was held with the claimant, no concern, it seems to us, was shown with regard to the claimant's illness, no steps were taken to establish when the claimant might be able to return to work, no warning was given, nothing was done, and he was dismissed without being informed that he had been dismissed.

(24) The respondent, in the response, states, at Paragraph 6.2:-

"We considered that the employment of the claimant had been terminated by him due to failure to return to work and failure to provide any further illness certification after April 2007."

We do not accept this in the light of the claimant's evidence.

(25) We are satisfied that the claimant was dismissed by the respondent

without notice and we are also, satisfied from the circumstances, that

the respondent did not follow the statutory or any other dismissal

procedure.

Unfair dismissal

The right not to be unfairly dismissed in relation to this case

6. By a combination of Article 126(1) and 140(1) of the Employment Rights (Northern Ireland) Order 1996 (the Order) an employee, who has been continuously employed for a period of not less than one year, ending with the effective date of termination of the contract of employment, has the right not to be unfairly dismissed.

Automatic unfair dismissal in relation to this case

7. Article 130A(1) of the Order provides as follows:-

"(1) 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 Employment (Northern Ireland) Order 2003 (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.

Adjustment of awards

8. Article 17(1) of the Employment (Northern Ireland) Order 2003 (the 2003 Order) provides as follows:-

"This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee."

9. One of the jurisdictions listed in Schedule 2 is unfair dismissal.
10. Article 17(3) and (4) of the 1993 Order provides as follows:-

"(3) If, in the case of proceedings to which this Article applies, it appears to the industrial 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,

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it 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 per cent.

(4) The duty under paragraph (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such less percentage as it considers just and equitable in all the circumstances."

Particulars of reasons for dismissal

11. A dismissed employee may be entitled to be provided with a written statement from his/her employer giving particulars of the reasons for the dismissal. An employee entitled to be provided with such a statement may present a case to an industrial tribunal on the ground that the employer unreasonably failed to provide one.
12. Insofar as relevant for the purposes of this case Article 124(1)(b), (2) and (3) and Article 125(1)(a) and (2) of the Order provide as follows:-

"(1) An employee is entitled to be provided by his employer with a written statement giving particulars of the reason for the employee's dismissal –

(b) if the employee's contract of employment is terminated by the employer without notice,

(2) An employer is entitled to a written statement under this Article only if he makes a request for one; and a statement shall be provided within fourteen days of such a request.

(3) An employee is not entitled to a written statement under this Article unless on the effective date of termination he has been, or will have been, continuously employed for a period of not less than one year ending with that date."

"125 (1) A complaint may be presented to an industrial tribunal by an employee on the ground that –

(b) the employer unreasonably failed to provide a written statement under Article 124, or

(2) Where an industrial tribunal finds a complaint under this Article well-founded, the tribunal –

(a) may make a declaration as to what it finds the employer's reasons were for dismissing the employee, and

(b) shall make an award that the employer pay to the employee a sum equal to the amount of two weeks' pay."

Notice

13. Article 118(1) of the Order provides:-

"(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more –

(a) is not less than one week's notice if his period of continuous employment is less than two years,

(b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and

(c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more."

The unfair dismissal claim

14. We are satisfied, in the circumstances, that this dismissal was an automatically unfair one under Article 130A(1) of the Order.

Award

Basic award

15. The claimant had six years' service for the purposes of this award and is, therefore, entitled to an award of £1,860.00 (£310.00 x 6).
16. We are satisfied of the matters set out in Article 17(3)(a), (b) and (c) of the Order of 2003 and increase the award of £1,860.00 by 10%
17. The total award, therefore, under this head id £2,046.00.

Compensatory award

18. Through his counsel, the claimant informed us that he did not wish to seek a compensatory award, not even one in respect of loss of statutory rights. We did not ask for a reason, nor were we provided with one. We honour the claimant's wish.

Reasons for dismissal

19. We find that, in August 2007, the claimant's solicitors wrote to the respondent, on the claimant's behalf seeking written reasons for the dismissal. No written reasons were provided. We consider that the respondent unreasonably failed to provide a written statement of reasons.
20. The claimant did not seek a declaration as to the reason for his dismissal.
21. We find that the claimant's claim is well-founded and we make an award of £1,060.00, which is two weeks' pay.

Notice pay

22. The claimant did not receive notice pay and he claims that this is a breach of contract.
23. He did not receive the notice pay to which he was entitled. This is a breach of contract. The claimant was entitled to six weeks' notice. The amount we award under this head is £2,400.00, which is six weeks nett pay at £400.00 per week.

Total awarded

24. The total amount awarded to the claimant is £5,506.00.
25. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 17 January 2008, Belfast

Date decision recorded in register and issued to parties: