Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1358_08IT.html
Cite as: [2009] NIIT 1358_8IT, [2009] NIIT 1358_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1358/08

CLAIMANT: Derek William Richardson

RESPONDENT: Martin McArdle, t/a Oaklea Fuels

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed, suffered an unlawful deduction from wages, which is also a breach of his contract of employment and did not receive notice pay to which he was entitled. The tribunal awards him compensation of £21,870 made up as follows;-.

unfair dismissal of £16,770, and

unlawful deductions of £3,000, and

notice pay of £2,100.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mr Ian Rosbotham

Mr Ian Lindsay

Appearances:

The claimant was represented by Mr John Doey, of counsel, instructed by Morris R J Kempton, Solicitors.

The respondent was neither in attendance nor represented.

Sources of evidence

1. The tribunal heard evidence from the claimant. The tribunal also received a bundle with five documents in it and a schedule of loss.

The claim and the defence

The claimant claims unfair dismissal, wrongful dismissal, breach of contract and an unlawful deduction of wages. The respondent did not enter a response in this matter.

In his originating claim the claimant sought by way of remedy reinstatement and compensation. Following an inquiry from the tribunal, subsequent to the hearing, the claimant’s solicitors confirmed by letter of 25 February 2009 that the claimant sought compensation only.

The tribunal was satisfied that the respondent had been notified of today’s hearing and decided to proceed in his absence.

The issues

The issues for determination were as follows:-

(1) Was the claimant unfairly dismissed?

(2) Was the claimant wrongfully dismissed?

(3) Was the claimant’s contract of employment breached?

(4) Did the claimant suffer an unlawful deduction of his wages?

(5) Was the claimant dismissed without notice?

Findings of fact

The tribunal made the following findings of fact:

The claimant, who was born on 3 July 1954, was employed as a diesel attendant from 1 March 2001 until 27 August 2008 at premises at 1A Mahon Road, Portadown, Co Armagh.

The business was owned by a succession of owners and was taken over by the respondent in 2006.

(3) The tribunal is satisfied from the evidence before it that there was a succession of transfers of undertakings and there was no interruption to the claimant’s employment.

(4) The claimant worked between 40 and 45 hours per week and earned £300 per week net.

(5) The tribunal is satisfied that the respondent did not pay income tax and national insurance for the claimant.

(6) The claimant became aware in December 2007 that the respondent was not paying income tax or national insurance contributions for him. The claimant remonstrated with the employer about this matter in December 2007 and January 2008 and sought to have the respondent sort out his tax and national insurance affairs.

(7) The tribunal is satisfied that this matter did concern the claimant as he indicated to the tribunal that he had pointed out to his employer that if his income tax and national insurance payments were not made that his pension would be adversely affected and any benefits that he might hope to gain, were he to become unemployed, would not be paid either, an eventuality which came to pass.

(8) By February 2008 the claimant did not believe that the respondent would regularise his income tax and national insurance position with the respective authorities.

(9) The claimant did not benefit from non-payment of income tax and national insurance contributions on his behalf by the employer.

(10) On 18 June 2008 Her Majesty’s Revenue and Customs attended at the filling station at Mahon Road, where the claimant worked. The premises were closed down as the filling station was selling to customers agricultural, or green diesel, for ordinary vehicular use. The Customs Authorities seized the pumps, the tanks and the diesel.

(11) The claimant immediately reported this matter to his boss, the respondent, at the principal premises of the respondent at 127 Mullahead Road, Tandragee, Co Armagh. His employer told him to go home as there was no point in him remaining at the filling station where he worked alone.

(12) Over the next week the claimant informed regular customers of the Mahon Road filling station about the visit of the customs officials and that agricultural diesel had been sold as regular diesel to customers.

(13) Between 18 June 2008 and 27 August 2008 the claimant did not work at Mahon Road. The respondent refused his request to work at the headquarters at 127 Mullahead Road, Tandragee during that time. The claimant did not receive any pay or remuneration during that time.

(14) The claimant believed that he would resume work at the filling station when it opened again as the respondent had so informed him.

(15) On 27 August 2008 the claimant was informed by Jeanette, who worked at the principal office of the respondent, that he was not getting his job back.

(16) The effective date of termination of the claimant’s employment was 27 August 2008. The claimant did not receive notice of his dismissal.

(17) In November 2008 Jeanette, from the respondent business, phoned the claimant and offered him a job at Mahon Road as a filling attendant but at a lower wage of £200 per week. The claimant requested that he receive written terms and conditions, a weekly payslip and that income tax and national insurance be paid on his behalf. Jeanette informed him that she would consider the matter and get back to him. Within four minutes Jeanette phoned him back and told him that he would not be getting the job on the terms he sought. Effectively this was a withdrawal of an offer of employment.

(18) The claimant made efforts to seek other employment by consulting the newspapers, the job market, the internet, and registering with an agency.

(19) The tribunal is satisfied that the claimant made efforts to mitigate his loss.

(20) The claimant is claiming unpaid wages between 18 June and 27 August 2008. He is also seeking damages for unfair dismissal and an uplift of 50% on compensation for unfair dismissal because he claims the respondent has not followed the statutory dismissal procedure.

(21) The respondent did not provide the claimant with a written statement of the main terms and conditions of employment.

6. The law

(1) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair. If an employer establishes both of these requirements then whether the dismissal was fair or not depends on whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 The Employment Rights (Northern Ireland) Order 1996).

Where an employee is dismissed and the statutory dismissal procedure is applicable but has not been complied with and the non-compliance is wholly or mainly attributable to the failure of the employer to comply with its requirements the dismissal is automatically unfair (Article 130A The Employment Rights (Northern Ireland) Order 1996).

(3) Where the statutory disciplinary procedure has not been completed, and the failure is wholly or mainly the employers, an industrial tribunal shall increase any award by 10% and may raise the increase to 50%, if it considers it just and equitable to do so, unless there are special circumstances which make the increase unjust or inequitable (Article 17(3) and (4) The Employment (Northern Ireland) Order 2003).

(4) A wrongful dismissal is a dismissal by the employer which is in breach of the employee’s contract of employment.

(5) An employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or by a relevant provision of the claimant’s contract of employment or the worker has previously signified in writing his agreement or consent to the making of the deduction (Article 45 The Employment Rights (Northern Ireland) Order 1996).

(6) In the absence of a contractual provision as to notice of termination of a contract of employment then the employee is entitled to one week’s notice for each year of employment to a maximum of twelve (Article 118 (1) The Employment Rights (Northern Ireland) Order 1996).

7. Application of the law and findings of fact to the issues

(1) The tribunal is satisfied that the respondent has not shown the reason for the claimant’s dismissal and that it was one of the reasons for dismissal that can render a dismissal fair. Consequently the dismissal of the claimant by the employer is unfair.

(2) There was a complete non-compliance of the statutory dismissal procedures. Accordingly the dismissal of the claimant is automatically unfair by virtue of Article 130A The Employment Rights (Northern Ireland) Order 1996.

(3) As this is a case where the statutory dismissal procedure applies and has not been completed due wholly or mainly to the failure of the respondent and there was no evidence before the tribunal of special circumstances which make an increase in the award unjust or inequitable the tribunal increases the award for unfair dismissal by 30%.

The claimant is entitled to compensation for unfair dismissal as set out below. In addition to the loss to the date of hearing the tribunal allows a future loss of 18 weeks.

Basic award

£300 x (1.5 x 7) = £3,150.

Compensatory award

From 28 August 2008 to 12 February 2009.

£300 x 24 = £7,200.

Future loss

13 February 2009 to 19 June 2009.

£300 x 18 = £5,400.

Loss of statutory rights = £300

Total compensation = £12,900.

Uplift of award by 30% = £16,770.

(5) The respondent’s failure to pay the claimant any wages from 19 June 2008 to 27 August 2008, in breach of Article 45 The Employment Rights (Northern Ireland) Order 1996, amounts to an unlawful deduction of wages. The claimant is entitled to unpaid wages from 19 June 2008 until 27 August 2008, which is ten weeks at £300 per week, which totals £3,000. The failure to pay the claimant his wages for this period also amounts to a breach of his contract of employment.

(6) The claimant was summarily dismissed without notice and is therefore entitled to pay in lieu of statutory notice for seven weeks at £300 per week which totals £2,100.

(7) The claimant is entitled to damages made up as follows:-

unfair dismissal of £16,770, and

unlawful deductions of £3,000, and

There was no evidence before the tribunal to show that the claimant suffered a wrongful dismissal.

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

Chairman:

Date and place of hearing: 10 February 2009, at Belfast.

Date decision recorded in register and issued to parties: