Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1792/07

CLAIMANT: Hugh Martin Saunders

RESPONDENT: Eamon Reilly

DECISION

The unanimous decision of the tribunal is that the claimant:-

1. was automatically unfairly dismissed;
2. was not paid notice pay;
3. had exhausted his holiday entitlement at the time of dismissal; and
4. be awarded the total amount of £9,459.70, as set out in this Decision.

Constitution of Tribunal:

Chairman: Mr Palmer

Members: Mrs Elliott

Mr McAnoy

Appearances:

The claimant represented himself.

The respondent did not enter a response to the claimant's claim.

CLAIM AND RESPONSE

The Claimant's Claim

5. The claim is in respect of Unfair Dismissal, Notice Pay and Holiday Pay.

Response to Claimant's Claim

6. The respondent did not present a response to the claimant's claim and took no part in the proceedings before us.

UNFAIR DISMISSAL

The Right not to be Unfairly Dismissed (in relation to this case)

7. By a combination of Articles 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)

8. 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 I 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

9. 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."

10. One of the jurisdictions listed in Schedule 2 is unfair dismissal.
11. 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 lesser percentage as it considers just and equitable in all the circumstances."

NOTICE

12. 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."

13. Proceedings may be brought before an industrial tribunal in respect of the non-payment of notice pay. Jurisdiction is conferred by the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.
14. Article 129(1)(b) of the Order provides:

"Subject to the following provisions of this Article, in this part "the effective date of termination"-

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes place."

15. Article 129 (2) of the Order (insofar as relevant) provides:

"Where-

(a) the contract of employment is terminated by the employer, and

(b) the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by paragraph (1)), for the purposes of Articles….153 (1) the later date is the effective date of termination."

16. Article 129 (3) (b) of the Order provides:

"In paragraph (2) (b) "the material date" means-

(b) where no notice is given, the date when the contract was terminated by the employer."

17. Article 153 (1) of the Order, insofar as relevant, provides:

"……, the amount of the basic award shall be calculated by-

(a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed,

(b) reckoning backwards from the end of that period the number of years of employment falling within that period, and

(c) allowing the appropriate amount for each of those years."

EVIDENCE AND FINDINGS (INCLUDING FACTS)

Evidence

18. The claimant gave evidence on his own behalf.

Findings (including facts)

19. The claimant was born on 21 May 1961.
20. He commenced work on 19 August 1998 as a lorry driver, when the respondent was in partnership with Mr Edward Curran. Mr Curran left the business in or about February 2007 and the claimant continued in the firm, which came under the proprietorship of the respondent. The claimant's employment ended on 8 July 2007. We are satisfied that there was continuity of employment between 19 August 1998 and 8 July 2007.
21. The claimant was to recommence work on 9 July 2007, after a one week holiday. The respondent telephoned the claimant at approximately 5.00PM on 8 July 2007 and told him that he was dismissed. The respondent told the claimant that he (the respondent) was paying off all his drivers of 7 1/2 ton lorries. The claimant, who was the longest serving 7 1/2 ton driver, was the only one dismissed. We do not accept that there was a redundancy situation, in the circumstances.
22. On 8 July 2007, during the telephone conversation referred to above, the respondent told the claimant that he would forward to the claimant any holiday pay due to him and also his P45 and P60. The respondent did not forward either the P45 or the P60 to the claimant. We shall deal later with holiday pay.
23. The claimant did not receive a written contract of employment.
24. Neither the statutory, nor any other procedures, were employed by the respondent in relation to the dismissal. The claimant was simply telephoned by the respondent, on 8 July 2007, and told that he was dismissed and given a reason that we do not accept.
25. We are satisfied, in the circumstances, that the claimant's dismissal was an automatically unfair one under Article 130A(1) of the Order.
26. We are also satisfied that after his dismissal the claimant made all reasonable efforts to find alternative employment. He checked the newspapers, attended the job club and contacted people he knew seeking news of job vacancies. He found new employment after 12 weeks and the position he obtained paid a higher wage than the position previously held by him with the respondent.
27. The claimant did not receive notice of dismissal, nor did he receive payment in lieu.
28. The claimant had taken all the leave to which he was entitled under the provisions of the Working Time Regulations (Northern Ireland) 1998.

COMPENSATION

Basic Award

29. Taking account of the provisions referred to in Article 129 of the Order, the effective date of termination of the contract of employment, for the purposes of this award, is 2 September 2007. The claimant, therefore, had 9 years service. He was aged 46. He is, therefore, entitled to 11 1/2 weeks wages at £249 per week. We award him £2,863.50 under this head.

Compensatory Award

30. We award the claimant £200 in respect of loss of statutory rights.
31. The claimant was out of work from 8 July 2007 until the end of September 2007 and we award him £2,640 (12 weeks at £220 nett) in respect of this loss.
32. The total compensatory award is, therefore, £2,840.

Increase in the Basic and Compensatory Awards under the 2003 Order.

33. This was the dismissal, by telephone, of an employee of over 8 years' standing. It was done in a cavalier way and the statutory procedures were ignored. There was no evidence that the claimant was other than a good employee. We consider that the awards in respect of the basic and compensatory awards should be increased by 35%. This means that these awards are increased by £1,996.20.

Notice Pay

34. The claimant was entitled to 8 weeks notice (which he did not receive) and we award him £1760 (8 weeks at £220 nett per week).

Holiday Pay

35. No award is made under this head, as the claimant had exhausted his holiday entitlement at the date of dismissal.

Total Awards

Basic £2,863.50

Compensatory £2,840.00

Increase in above £1,996.20

Notice Pay £1,760.00

TOTAL £9,459.70

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

Chairman:

Date and place of hearing: 28 March 2008, Belfast.

Date decision recorded in register and issued to parties;