Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1661/07

CLAIMANT: Martin Smyth

RESPONDENT: James & Michael Davey t/a James Davey Plumbing and Heating

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the respondents do pay to the claimant the sum of £4,259.60 by way of compensation for unfair dismissal and notice pay. The claims for holiday pay, unlawful deductions from wages and for paid annual leave and for a redundancy payment are dismissed.

Constitution of Tribunal:

Chairman: Mr M Davey

Mr T Waite

Mr J Magennis

Appearances:

The claimant was represented by Mr R Coughlin, Barrister-at-Law, instructed by E J Lavery & Co, Solicitors.

There was no appearance by or on behalf of the respondents.

REASONS

1. The respondents did not appear. The tribunal, being satisfied that the respondents had been duly informed that the hearing was to take place by notice of hearing issued on 17 January 2008, no request for adjournment having been made and no reason for non-attendance having been given, considered it appropriate to deal with the matter in the respondents' absence taking into account the contents of the respondents' notice of appearance dated 22 October 2007 and received in the tribunal on 24 October 2007.
2. The claimant's evidence was to the effect that he had commenced employment with the respondents as a plumber in October 1999 and had worked for them from then until 16 March 2007. His wages at that time were £312.00 per week gross as per wages slips produced. His net earnings amounted to £246.11, again on the basis of wages slips produced.

There had been no mention of unsatisfactory performance during the course of his employment until 16 March 2007 when, on arrival at work, the claimant was approached by one of his employers who told him that he was going to have to let him go because on a couple of recent jobs he had left leaks. A couple of other jobs were also mentioned including an incident involving fitting of a bath. The claimant, at this time, had disputed these claims and asked if he was being let go because the firm had recently lost work, as they had. This was denied and the claimant was told to take the van to his own house and someone would be sent over for the keys later. Subsequently one of his employers arrived to collect the van and handed the claimant an envelope with a cheque for £400.00. 16 March 2007 was a Friday when the claimant was due to be paid; the claimant did not know how the cheque for £400.00 was made up apart from the wages due. The claimant subsequently rang his employers seeking a reference which was given and produced to the tribunal. The reference was dated 16 March 2007.

3. Most of this evidence was not inconsistent with the information contained in the respondents' notice of appearance. In that notice the respondents had referred to unsatisfactory work of which they would have been aware in relation to three jobs prior to the claimant's dismissal. The claimant indicated, in his evidence, that in relation to one of those jobs he had not been the only person working on the site and that the respondents together had inspected the work and found it satisfactory even though subsequent complaints arose. In relation to the other two jobs he stated he had not been aware, and it had not been drawn to his attention, that there had been any problem. In relation to all jobs there was no discussion with his employers and certainly no indication that his job was in anyway at risk.

The only point at which the information in the notice of appearance and the claimant's evidence was wholly inconsistent was in relation to the question of a reference for the claimant. The respondents had stated in their notice of appearance that they had not given the claimant a reference, yet a reference had been produced to the tribunal. The respondents had also speculated in the notice of appearance that the claimant may have been causing defects deliberately in order to get dismissed with a view to taking another job. This suggestion did not seem sensible or logical to the tribunal.

4. The tribunal accepted the claimant's evidence. On that basis it was clear that there had been no concession to any kind of procedural fairness whether statutory or otherwise. Nor did the tribunal consider, in the light of the claimant's evidence, that there would have been a reasonable basis for dismissal even if procedural fairness had been satisfied. Accordingly the dismissal was unfair. It was effected without notice, without discussion and without warning.
5. The claimant had worked for seven full years during the whole of which time he was between the ages of 22 and 41. Accordingly the claimant is entitled to a basic award of one week's pay for each year of such service. The claimant's gross wage of £312.00 was in excess of the figure of £310.00 prescribed by the Employment Rights Order for the purposes of calculating a basic award. Accordingly the amount of the basic award is 7 x £310 = £2,170.00.
6. The claimant is also entitled to pay in lieu of notice. By virtue of Article 118 of the Employment Rights Order (NI) 1996 the claimant was entitled to seven weeks notice. Under the rule in Norton Tool Co Ltd -v- Tewson good practice requires that an employer should pay the relevant period of notice pay. The claimant's net wage was £246.11. Accordingly the appropriate figure of compensation payable by way of notice pay is 7 x £246.11 = £1,722.77.

The claimant sustained no other loss of wages and accordingly no other compensation under this head or in relation to loss of wages arises.

7. The tribunal also awards the sum of £250.00 to the claimant by way of loss of his statutory rights.
8. The claimant sought an uplift of compensation on the basis that the respondents had failed to comply with the statutory procedures for dismissal. The respondents clearly did fail so to comply and accordingly, under Article 17(3) of the Employment (NI) Order 2003 the tribunal is required to increase the award by a percentage between 10% and 50% unless there are exceptional circumstances which would make such an increase unjust or inequitable. The tribunal can see no such exceptional circumstances. The tribunal considers that having regard to the relatively small size of the respondents' firm and also to the total lack of any kind of discussion or warning, that an uplift of 30% would be appropriate. The tribunal accepts the claimant's submission that the uplift should apply to the compensatory award.

Accordingly the total amount payable by the respondents to the claimant is as follows:-

Basic Award £2,170.00

Compensatory Award £1,722.77

+ 30% uplift= £ 516.83

£2,239.60

£4,409.60

Loss of Statutory Rights £ 250.00

£4,659.60

Less payment made £ 400.00

£4,259.60

9. The claimant formally withdrew his claim for holiday. The claimant had originally indicated that he was claiming for unlawful deductions and a redundancy payment. No evidence was put forward to support the claim for unlawful deductions. In the light of the award for unfair dismissal no question of a redundancy payment arises. Accordingly these claims are dismissed.

Recoupment

10. No question of recoupment arises.

Interest

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

Chairman:

Date and place of hearing: 2 April 2008, Belfast.

Date decision recorded in register and issued to parties: