Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 620/08

CLAIMANT: Declan Barry Green

RESPONDENT: Stephen Issacc

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is due the sum of £3051.96 in respect of unfair dismissal compensation, redundancy pay and notice pay. The claim for holiday pay is dismissed.

Constitution of tribunal:

Chairman: Mrs Ó Murray

Members: Mr O Field

Ms G Ferguson

Appearances:

The claimant did not appear and was not represented.

The respondent had not filed a response form, did not appear and was not represented.

The claim

1. The claimant's claims were for a redundancy payment, unpaid wages, holiday pay and notice pay.

The issues

(1) What was the reason for the dismissal?

(2) Was that reason one of the potentially fair reasons outlined in the legislation?

(3) Was the dismissal unfair?

(4) Were the statutory dismissal procedures followed?

(5) Was the claimant due a redundancy payment?

(6) Was the claimant due pay in lieu of notice?

(7) Was the claimant due holiday pay under the Working Time Regulations and under contract?

Sources of evidence

2. Neither the claimant nor the respondent appeared. The respondent had not filed a response form despite having been given an extension of time to do so. Given that neither party appeared at the hearing, the tribunal considered its powers under Rule 27(5) which stipulates that if a party fails to attend or be represented at the hearing the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

3. Under Rule 27(6) if the tribunal wishes to dismiss or dispose of the proceedings it must first consider any information in its possession. The tribunal had the claimant's claim form in its possession. On the file there was also a letter from an accountant seeking an extension of time for the response form to be lodged on behalf of the respondent. On foot of that letter the extension of time was granted but no response form was lodged. The tribunal has therefore not had regard to the points made in that letter given that the respondent had an opportunity to put in a response and failed to do so and could have attended today but failed to do so.

Findings of Fact

4. The tribunal decided to deal with the proceedings on the papers and made the following findings of fact.

5. The claimant was born on 13 October 1988 and was employed as a bar supervisor by the respondent at the Nest pub in Belfast from 1 September 2004 to 8 February 2008. He earned £234 gross making £180.40 net per week.

6. On 8 February 2008 the claimant arrived at work to find the doors locked and when he rang the owner the owner said: "You're going to have to get a new job, the bar is closed for good". The claimant received his wage for his last week worked and when he rang the respondent to ask about getting the rest of his entitlement the respondent said: "Not a chance".

7. The claimant wrote on 15 March 2008 to the respondent to ask for holiday pay, severance pay and notice pay and received no reply.

8. The claimant started a new job on 20 February 2008 earning £6.50 gross per hour with take home pay of £150 per week. He therefore worked fewer hours than with his previous employer meaning he had reduced earnings amounting to a diminution of his earnings of £30.40 per week.

The law

Unfair dismissal

9. The right not to be unfairly dismissed is outlined at Article 126 of the Employment Rights (Northern Ireland) Order 1996. If an employee was dismissed, it is for the employer to show that the reason for the dismissal falls within one of the potentially fair reasons outlined in the legislation. One of those reasons is redundancy. If the tribunal finds that the dismissal was for one of the potentially fair reasons for dismissal the tribunal then goes on to decide whether or not the dismissal was fair in all the circumstances.

10. Under the Statutory Dismissal Procedure introduced under the Employment Order (NI) 2003, if an employer wishes to dismiss an employee for redundancy or any other reason, the employer must go through the statutory dismissal procedure. That procedure stipulates that the employer must set out in writing the reason for the proposed action, must invite the employee to a meeting for the matter to be discussed, must communicate the decision to the employee and advise of the right to appeal. If the right to appeal is exercised by the employee there must be another meeting and the outcome must be communicated to the employee. All meetings and actions must take place at a reasonable time and place.

11. If the dismissal procedure is not followed and this is due to the fault of the employer, the ensuing dismissal is automatically unfair and the tribunal must award a minimum basic award of 4 weeks' gross pay (A130A ERO).

12. If failure to follow the statutory procedure is because the employer is at fault the tribunal must increase the compensatory award for unfair dismissal by 10% and may increase that award by a percentage up to 50%. (Article 159 ERO and Article 17 Employment Order (NI) 2003. The amount of the basic award for unfair dismissal where the statutory procedures have not been complied with by the employer must amount to a minimum award of four weeks' pay unless the tribunal determines that such an increase would result in injustice to the employer.

Redundancy payment

13. The right to redundancy payment arises under Article 170 of the ERO. In order for an employee to be entitled to a redundancy payment he must show that he was an employee, that he was continuously employed for 2 years, that he was dismissed and that the dismissal was by reason of redundancy.

14. Redundancy is defined at Article 174 which states that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the employer has ceased either, to carrying on the business for the purposes of which the employee was employed by him, or to carry on that business in the place where the employee was so employed.

15. The amount of any redundancy payment is determined by reference to the employee's age, length of continuous employment and gross weekly wage.

16. If the tribunal awards a sum for a redundancy payment this has the effect of extinguishing any basic award for unfair dismissal under general principles.

Notice pay

17. An employee is entitled to one week's notice for each full year of employment under Article 118 of the ERO. If the employee is dismissed without notice, the claim is for breach of contract for compensation for pay in lieu of notice. The tribunal's contract jurisdiction is conferred by the Industrial Tribunals Extension of Jurisdiction Order 1994.

Holiday pay

18. The Working Time Regulations (NI) 1998 as amended set out the statutory entitlement to paid holiday. In the claimant's case his entitlement was 24 working days per annum. The holiday year can be stipulated in the contract or failing that it runs from October to October. If the employee's contract is terminated part way through the holiday year, the employee has the right to payment in lieu of untaken holiday. If the employer fails to pay any holiday pay due under that provision the employee can make a complaint under Article 30(5) and if the tribunal finds that complaint to be well-founded it must order the employer to pay the employee the amount it finds to be due to him. (Notice pay Article 118 ERO, Order 1994, automatic UD for failure to SDP Article 130(A) ERO).

Conclusions

19. The tribunal applied the law to the facts found and concluded as follows.

20. Unfair Dismissal and redundancy: The reason for the dismissal was redundancy as the employee's place of work closed. Redundancy is one of the potentially fair reasons for dismissal.

21. The statutory dismissal procedure was not followed and therefore that dismissal was automatically unfair so four weeks' pay is due as a minimum basic award.

22. No redundancy payment was made so the claimant is due half a week's gross pay for each of the three years that he worked for the respondent.

23. In relation to unfair dismissal the basic award is extinguished by the redundancy payment so the basic award is zero. However under the statutory dismissal provisions, if the basic award is lower than four weeks' gross pay the tribunal must award the sum of four weeks' gross pay.

24. The compensatory award comprises the loss of statutory industrial rights alone as no loss is claimed by the claimant between the EDT and the commencement date of the new job. The claimant was, however, on a lower wage because of his diminution in earnings. There were 27 weeks between the commencement of the new job and the hearing and the tribunal therefore awards a loss of £30.40 per week for that period. The tribunal is not, however, minded to award a continuing loss because the claimant could get another job or increase his hours. There is a general duty on the claimant to mitigate his loss. In the absence of evidence on this matter the tribunal's view is that it is fair to award the diminution of earnings figure for the 27 weeks between the date of starting the new job and the hearing as this is ample time for the claimant to achieve the earnings level that he had with the respondent either by increasing his hours with his current employer or by obtaining a new job.

25. A percentage of 10-50% on the compensatory award is applicable because the dismissal procedure was not followed by the employer. The tribunal has decided to award 20% uplift on the compensatory award because the claimant was surprised by the dismissal having turned up at his place of work to find that the locks had been changed. In addition the respondent's attitude when the claimant tried to find out the position and tried to ask for the sums due to him was indicative of a completely cavalier approach to the dismissal.

26. Notice pay. The claimant should have been given three weeks' statutory notice and the tribunal therefore awards three weeks net pay for pay in lieu of notice.

27. Holiday pay. There was no evidence on the papers of the terms of the claimant's contract as regards holiday pay so the tribunal had no evidence as to when the holiday year started and finished, had no evidence as to whether any holidays had been taken by the claimant and whether there were any outstanding holidays. The burden was on the claimant to show that he was due a payment for untaken holidays. As the claimant has not given any details of the holiday year nor of the holidays which he said were outstanding on termination, he has not discharged that burden and no award is therefore, made by the tribunal in relation to holiday pay.

28. The calculation of compensation therefore is as follows:

Redundancy

3 years x 1/2 multiplier x £234.00 gross = £351

Unfair dismissal

Basic award

Minimum 4 weeks x £234 gross = £936

Compensatory award

Loss between EDT and hearing

27 wks @ £30.40 = £820.80

Statutory industrial rights = £200

20% uplift = £204.16

Notice pay

3 weeks x £180 net = £540

Total: = £3,051.96

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

Chairman:

Date and place of hearing: 5 September 2008 at Belfast

Date decision recorded in register and issued to parties: