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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gault v Mr J Harrison [2009] NIIT 413_09IT (23 September 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/413_09IT.html
Cite as: [2009] NIIT 413_09IT, [2009] NIIT 413_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 413/09
CLAIMANT: Adrian Gault
RESPONDENT: Mr J Harrison
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal orders the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £9,002.08.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Mr P Sidebottom
Mr J Law
Appearances:
The claimant was unrepresented and appeared personally.
The respondent was not represented and did not appear.
1. By claim form dated 16 February 2009 the claimant claimed against the respondent redundancy payment and unfair dismissal. There was no appearance to the claim by the respondent.
THE ISSUES TO BE DETERMINED
2. The issue to be determined in this case was whether or not the claimant’s claims in the originating claim form were made out to the satisfaction of the tribunal. In addition, certain issues arising from the statutory disciplinary and dismissal procedures also had to be addressed by the tribunal. In the event of the claimant’s claim being successful, the tribunal had to determine appropriate remedy, including compensation.
THE EVIDENCE
3. The tribunal heard oral evidence from the claimant who also submitted some documentation, that latter consisting of wages slips and, furthermore a copy of a letter (obtained by the claimant for the purposes of this hearing, at the tribunal’s request, from Causeway Citizens’ Advice Bureau) which constituted the claimant’s grievance letter to the respondent.
THE TRIBUNAL’S FINDINGS OF FACT
4. On the basis of the oral and documentary evidence, on the balance of probabilities the tribunal determined the following material facts:-
4. 1 The claimant is by occupation a general labourer and the respondent is a gardening and a road maintenance contractor. The claimant was employed by the respondent as a labourer, commencing in that employment on 4 May 2006. Notwithstanding the wages figures that were indeed set forth in the claimant’s claim form, the tribunal had an opportunity to inspect the full wages records provided to the tribunal by the claimant and as a consequence the tribunal determined that the gross wage in the claimant’s employment by the respondent amounted to £243.89 per week and the nett pay per week as £208.18. At the material time, the respondent employed some 15 or so employees.
4. 2 Throughout this employment the respondent never provided to the claimant a statement of written terms and conditions of employment, nor indeed any other documentation other than wages slips. Specifically, there were no express terms stated governing contractual notice to be given upon termination. Accordingly, the termination of any employment would be subject to the statutory provisions for notice in that regard.
4. 3 It is clear to the tribunal that the respondent at the material time reached a determination to reduce his workforce by dismissing a number of employees. There was no warning or consultation whatsoever applied to any selection process on the respondent’s part. On Friday 5 December 2008 the claimant spoke with the respondent. The respondent informed him that he was paying off employees that day. The claimant asked the respondent if he, the claimant, was one of the employees to be paid off and the respondent stated that that was indeed the case. It appears that that day, 5 December 2008, the respondent summarily dismissed from a work force of approximately 15 about 9 or 10 employees; he kept on 5 or 6 persons and he did not dismiss these.
4. 4 By letter dated 15 December 2008 the claimant wrote to the respondent stating that he was entitled to two weeks’ pay in lieu of notice and two years’ redundancy money. The claimant had it seems been advised of this entitlement by the local Citizens’ Advice Bureau. He requested that this money be paid to him. By further letter dated 23 December 2008 Causeway Citizens’ Advice Bureau wrote to the respondent requesting redundancy pay and pay in lieu of notice on behalf of the claimant. There was no response whatsoever to either of these two letters and indeed the respondent has not responded in any manner to these tribunal proceedings by the claimant.
4. 5 After the dismissal, the claimant claimed Jobseekers’ Allowance from 13 December 2008 and he was in receipt of that up until the 30 May 2009. Prior to that latter date, the claimant had fully complied with the provisions of the Jobseekers’ Allowance arrangements and the tribunal is quite satisfied that he had made regular and proper endeavours to secure alternative employment, but without any success in that regard.
4. 6 On 30 May 2009, the claimant was unfortunate enough to have been the victim of a very serious physical assault. As a result of that assault he sustained serious head injuries. He was detained in hospital for a lengthy period of time. After his discharge from hospital he was entirely unfit to work and still remained at the date of this tribunal unfit to work. He was in receipt of sickness benefit and he remained so at the date of the tribunal. The tribunal did not need to determine any other material facts for the purposes of this decision.
THE APPLICABLE LAW
5. The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.
6. If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award, under Article 153 of the 1996 Order, and a compensatory award under Article 157 of the 1996 Order, the compensatory award being such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.
7. The Employment (Northern Ireland) Order 2003 ("the 2003 Order") provides (the tribunal's own emphasis being in bold lettering) as follows:-
"17. —
(1) 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. [this includes unfair dismissal]
(2) -
(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 (2) or (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.
(5) Where an award falls to be adjusted under this Article and under Article 27, the adjustment under this Article shall be made before the adjustment under that Article.
23. —
(1) Part XI of the Employment Rights Order (unfair dismissal) shall be amended as follows.
(2) After Article 130 there shall be inserted—
"Procedural fairness
130A. —
(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.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.".
(5) In Article 154 (basic award: minimum in certain cases) after paragraph (1) there shall be inserted—
"(1A) Where—
(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),
(b) an award of compensation falls to be made under Article 146(4), and
(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,
the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.
(1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.".
29. In the Employment Rights Order, after Article 158 there shall be inserted—
"Adjustments under the Employment (Northern Ireland) Order 2003
158A. Where an award of compensation for unfair dismissal falls to be—
(a) reduced or increased under Article 17 of the Employment (Northern Ireland) Order 2003 (non-completion of statutory procedures); or
(b) -
the adjustment shall be in the amount awarded under Article 152 (1)(b) and shall be applied immediately before any reduction under Article 157(6) or (7).".
8. Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures. Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures. Such procedures involve an employer providing to an employee a statement in writing regarding conduct, characteristics or circumstances which lead him to contemplate dismissing or taking disciplinary action against an employee. That statement in writing must be sent to the employee, and the employee invited to attend a meeting. A meeting must follow at which the employee has been given a reasonable opportunity to consider his response and to attend, and an appeal must be afforded to the outcome of any decision on the employer’s part.
9. The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”), insofar as material, provide as follows:
Application of dismissal and disciplinary procedures
3. - (1) Subject to paragraph (2) and
regulation 4, the standard dismissal and disciplinary procedure applies when
an employer contemplates dismissing or taking relevant disciplinary action
against an employee.
10. There are various provisions contained in the 2004 Regulations concerning the non-applicability of the statutory procedures or, alternatively, circumstances in which the procedures do not apply or are treated as being complied with. The tribunal does not intend to recite these provisions here as these do not apply to the circumstances of the case.
THE TRIBUNAL’S DETERMINATION OF THE ISSUES
11. This is a case which is comparatively easy to resolve. This is so for the reason that the claimant was summarily dismissed by the respondent entirely unfairly procedurally and in total disregard for the statutory procedures applicable, as mentioned above. Suffice to say that it is difficult to countenance a dismissal which departs further from proper and accepted procedures both in terms of natural justice and also in terms of adherence to the statutory provisions applicable to such matters. For that reason, in summary, the tribunal finds that the dismissal was unfair both substantively and procedurally and also specifically the dismissal was unfair in terms of the provisions of Article 130A of the 1996 Order.
12. In determining applicable compensation, the tribunal has had regard to the statutory provisions mentioned above and to the claimant’s age and length of service. Any redundancy payment that would otherwise have been due is subsumed into the basic award in the case for unfair dismissal. The award is set out below. In regard to the compensatory award, the claimant was unemployed from the date of dismissal, 5 December 2008, up until the date of the assault on 30 May 2009. The claimant was very unfortunate to have been rendered entirely incapable of working on account of the assault from that date and the dismissal can have played no part in that incapacity. The tribunal therefore feels that it is appropriate to award compensation for loss up to and including 30 May 2009, but no further than that date. The tribunal is entirely satisfied that prior to 30 May 2009 the claimant made earnest and proper endeavours to secure alternative employment, but without success. All of the loss up to that date is entirely attributable to the actions of the respondent.
13. In terms of the statutory uplift applicable, the tribunal has regard to recent case law. This case, on the facts, is an appropriate case in which to consider an award of uplift of compensation at the upper end of the discretionary range available. As mentioned, it is difficult to countenance a factual situation where an employer could have had less regard to the appropriate procedures. The tribunal determines that there should be an increase of compensation on foot of the discretion afforded to the tribunal by Article 17(3)(c) of the 2003 Order by a figure of 40% and that is applied as mentioned below. The tribunal accordingly awards compensation as is indicated in the next succeeding paragraph.
14. Basic Award for Unfair Dismissal
The Tribunal determines that a basic award is applicable. The claimant’s gross pay in the employment with the respondent was £243.89 per week. The claimant was aged 41 years and he had been continuously employed for 2 years. Article 154 (1A) of the 1996 Order mentioned above provides that the industrial tribunal shall under these circumstances increase the award under Article 152(1)(a) of the 1996 Order (the basic award) to the amount of four weeks' pay.
£243.89 x 4 = £975.56.
15. Compensatory Award for Unfair Dismissal
The claimant’s nett pay in the employment with the respondent was £208.18 per week. On 5 December 2008 the respondent summarily dismissed the claimant and the claimant signed on for Job Seeker’s Allowance from 13 December 2008 and he was in receipt of that up until the 30 May 2009. The loss flowing from the dismissal ceased at that date for the reason mentioned above. The relevant period is 25 weeks. The applicable loss calculation is therefore as follows:-.
£208.18 x 25 = £5,204.50.
The tribunal’s award for loss of statutory rights = £250.
Balance = £6,430.06
The enhancement applied to the foregoing on foot of the discretion afforded to the tribunal by Article 17(3)(c) of the 2003 Order is 40% = £2,572.02
Total = £9,002.08
16. Recoupment of Benefit from Awards
The claimant did receive social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply the following recoupment of benefit is therefore applicable in this case:-
(a) Monetary Award: £9,002.08
(b) Prescribed Element: £9,002.08
(c) Prescribed Period: 5 December 2008 to 30 May 2009
(d) Excess of (a) over (b): £ nil
AND the attached Recoupment Notice forms part of the decision. Your attention is drawn to the notice below which forms part of the decision of the tribunal.
17. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 31 July 2009, Limavady
Date decision recorded in register and issued to parties:
Case Ref No: 413/09
CLAIMANT: Adrian Gault
RESPONDENT: Mr J Harrison
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
9002.08 |
|
(b) Prescribed element |
9002.08 |
|
(c) Period to which (b) relates: |
5 December – 30 May 2009 |
|
(d) Excess of (a) over (b) |
Nil |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.