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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Foster v Hunter (t/a Central secur...) [2009] NIIT 5753_09IT (08 December 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/5753_09IT.html
Cite as: [2009] NIIT 5753_09IT, [2009] NIIT 5753_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 05753/09
CLAIMANT: Gary Foster
RESPONDENT: Brian Hunter, T/A Central Security Systems
DECISION
The unanimous decision of the tribunal is that the claimant was dismissed without notice from the employment of the respondent on the grounds of redundancy. The claimant is entitled to redundancy payment in the sum of £184.00. The respondent is also ordered to pay to the claimant the sum of £666.00 as monies due and owing in respect of the respondent’s breach of contract.
In total, the respondent is ordered to pay to the claimant the sum of £850.00.
The tribunal declares that the correct name of the respondent is as detailed above. The title of the proceedings has been ordered to be amended accordingly.
Constitution of Tribunal:
Chairman: Miss Sheehan
Members: Mr Hughes
Mr Irwin
Appearances:
The claimant was not represented but appeared at hearing.
The respondent made no appearance on the day of hearing.
(1) The claimant in his complaint lodged with the tribunal claimed that he had been employed as an apprentice alarm engineer from 5 February 2007 to 4 March 2009. In summary his claim was that he had been dismissed on 4 March 2009 without notice or compliance with the statutory dismissal procedure by the respondent. He was advised by the respondent that he was to be let go as he wasn’t trained or able to install systems on his own. He did not receive, despite writing and requesting same, any outstanding monies in respect of holiday pay, notice pay or wages owing to him.
(2) The respondent entered a response to the claim which indicated that the claimant’s employment was terminated due to redundancy. In effect the claimant was dismissed as “work was scarce.” The claimant was selected for redundancy as “he wasn’t trained or able to install systems on his own.” The respondent in his appearance indicated that if he had made errors in monies due and owing he was content to deal with them.
(3) Issues
The issues for the tribunal to determine were:
(a) Whether the respondent dismissed the claimant as a result of redundancy.
(b) Whether the respondent’s failure to follow a statutory dismissal procedure made any difference to the outcome of the redundancy selection.
(c) What redundancy payment if any was due to the claimant?
(d) Whether the respondent was in breach of contract in failing to tender pay in lieu of notice, holidays accrued, and outstanding wages and what damages if any the claimant was due in respect of such breach.
(4) The tribunal heard evidence from the claimant and received documents at hearing on 12 October 2009. The tribunal also took cognisance of the documentation including the respondent’s response to the claimant’s claim that had been submitted to the tribunal prior to the hearing.
(5) Facts
The tribunal having heard the evidence of the claimant and considering all the documentation before it found the following facts.
(6) The respondent became the employer of the claimant on 5 February 2007 when the claimant was 18 years of age. The claimant remained in the respondent’s employment for over two years with the employment being terminated by the respondent on 4 March 2009 with immediate effect.
(7) At the date of the claimant’s dismissal the respondent employed four qualified engineers, two apprentices (including the claimant) and one salesman.
(8) The claimant was provided at the commencement of his employment with a statement of main terms of employment by the respondent. Wages documentation and the statement of terms and conditions indicate clearly that the respondent Central Security Systems is not a limited company but is a small business run by their proprietor Brian Hunter.
(9) The claimant was absent from work due to illness on 2 and 3 of March 2009. The claimant returned to work on 4 March 2009 and was advised by another employee that the respondent wished to see him in his office. When the claimant attended with the respondent he was advised he was going to be let go because “you cannot install a system on your own.”
(10) The other apprentice who had been employed in or about the same time as the claimant was at the time of the claimant’s dismissal going out to jobs on his own and had been doing so for a period previously. The claimant had assumed that that apprentice had been doing better in his training than himself.
(11) While the claimant offered to work the rest of the week the respondent refused this offer and told him to leave with immediate effect.
(12) Since dismissal the claimant has become aware that a number of the qualified engineers employed by this respondent had their employment also terminated. The first engineer was dismissed within one month or so of the claimant’s dismissal.
(13) The claimant under his written statement of main terms and conditions had a statutory entitlement to holidays of fifteen days plus nine public/bank holidays accruing at one twelfth for each completed month of service. The claimant also had entitlement to notice of termination of one week for each completed year of service. The claimant’s contractual documentation stated that wages were paid weekly in arrears and the claimant gave evidence that he had an outstanding lying week of wages due on 4 March 2009 which had still not been paid by the respondent.
(14) From the documentation before the tribunal there appeared to be no dispute between the parties that the claimant’s wages were £184.00 gross weekly and £162.26 net.
(15) No statutory dismissal procedure was followed by the respondent prior to the claimant being dismissed.
(16) Since the claimant’s dismissal the claimant has had no success in obtaining alternative employment. The claimant appears to have been diligent in applying for various types of posts mainly unskilled including van driving, landscaping, and storeman’s posts.
(17) Applicable Law
The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (The 1994 Order) provides in Article 3 that proceedings might be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (save damages for personal injuries) where the claim arises or is outstanding on the termination of the employee’s employment. Thus, under this provision, an employee may bring a claim for pay in lieu of notice outstanding at termination of a contract or indeed for any other contractual sum or sums claimed as properly due on termination.
(18) The relevant legislation in respect of redundancy entitlement or payment is found at Articles 170, 171, 174 and 175 of the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as the 1996 Order). Article 170 (1) (a) provides that an employer shall pay a redundancy payment to any employee if the employee is dismissed by the employer by reason of redundancy.
(19) Article 171 (1) (a) provides subject to the provisions referred to therein for the purposes of this part an employee is dismissed by his employer if (and only if) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice).
(20) Article 174 (1) (b) (i) provides 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 requirements of that business for employees to carry out work of a particular kind has ceased or diminished or are expected to cease or diminish.
(21) In establishing a redundancy payment calculation the tribunal is required to establish the “relevant dates” pursuant to Article 180 of the 1996 Order. Article 197 of the 1996 Order provides the formula of calculation of a redundancy payment.
(22) Article 190 of the 1996 Order provides that an employee does not have any right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending on the relevant date.
(23) Article 199 of the 1996 Order provides for the time within which a claim for redundancy payment must be made. Article 199 (1) provides an employee does not have any right to a redundancy payment unless before the end of the period of six months beginning with the relevant date–
(a) The payment has been agreed and paid,
(b) The employee has made a claim for the payment by notice in writing given to the employer,
(c) A question as to the employee’s right to or the amount of, the payment has been referred to in the industrial tribunal, or
(d) A complaint relating to his dismissal has been presented by the employee under Article 195.
(24) Article 130 (A) of the Employment Rights (Northern Ireland) Order 1996 states that an employee such as a claimant who has been dismissed shall be regarded as unfairly dismissed where the statutory dismissal and disciplinary procedure applied in respect of the dismissal was not completed by the respondent and the non-compliance is wholly attributable to the failure of the respondent to comply with the statutory requirements. Redundancy payments is one of the jurisdictions to which the requirement to carry out this procedure applies by virtue of the provisions of the Employment (Northern Ireland) Order 2003.
(25) Article 130 (A) (2) states that failure by an employer to follow the statutory dismissal and disciplinary procedure shall not be regarded for the purposes of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996 as by itself making the employer’s action unreasonable and therefore unfair if the employer can show the employee would have been dismissed had the procedure been followed. In determining that question, the tribunal has had regard to the provisions of Article 130 of the Employment Rights (Northern Ireland) Order 1996. It provides that it is for the respondent to show:
(1) The reason for the dismissal of the claimant and
(2) That it is a reason falling within Article 130 (2) of the Employment Rights (Northern Ireland) Order 1996, or “some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held.”
(26) The reasons set out in Article 130 (2) encompass amongst others redundancy.
(27) Conclusion
It is clear from the evidence of the claimant that the respondent had suffered a reduction in business as evidenced by the fact that shortly after the dismissal of the claimant two other fully qualified alarm engineers were also dismissed from the respondent’s employment. Accordingly, the tribunal were satisfied the provisions of Article 174 (1) (b) are satisfied.
(28) In the light of the facts found the claimant has clearly been employed in excess of two years and is entitled to a redundancy payment. (Article 190 of the 1996 Order).
(29) The claimant would have been entitled to two weeks’ notice of termination of his employment. The claimant was actually given no notice and therefore is entitled to two weeks’ pay as damages in lieu of notice.
(30) The “relevant date” pursuant Article 180 (2) (B) of the 1996 Order is 4 March 2009.
(31) The claimant submitted his claim to the Office of the Industrial Tribunal and Fair Employment Tribunal on 7 May 2009 thereby satisfying the requirements of Article 199 (1) (c) of the 1996 Order.
(32) It is clear that the respondent failed to follow any statutory dismissal procedure other than to hold a meeting without notice with the claimant to announce his decision to dismiss the claimant. However the tribunal also heard evidence from the claimant that would appear to indicate that he was the sole employee employed by the respondent at the time of his dismissal who was not capable of being sent to carry out the business of the respondent as a sole engineer. The claimant accepted there had been a reduction in the installation side of the respondent’s business. Most work that the claimant had been utilised for involved servicing of equipment. In those circumstances the tribunal concluded on the balance of probabilities that had the respondent followed a statutory dismissal procedure the claimant would still have been dismissed in any event on the ground of redundancy.
(33) The claimant in evidence conceded that the only absence from employment in respect of holidays was 1 January 2009. In those circumstances the tribunal calculated that the claimant was entitled to three days’ pay in respect of holiday leave accrued but not availed of prior to the termination of his employment given the contractual holiday year ran from 1 January to 31 December.
(34) It is clear from the evidence produced at hearing the claimant, while employed by the respondent, had always been paid in arrears. In particular the respondent operated a “lying” week. The claimant produced at hearing various payments slips together with a copy of his bank statement confirming the last payment he received from the respondent was £114.00.
(35) The claimant contended this represented three days’ pay given that he had been absent due to illness for two days prior to the date of his dismissal. There is clearly an unlawful deduction of wages by the respondent in failing to pay monies in respect of the lying week to the claimant.
(36) In the circumstances of this case the tribunal were satisfied that the claimant was not unfairly dismissed but was dismissed on the ground of redundancy and therefore would be entitled to a redundancy payment reflecting the two years’ service and his age. As he was under the age of 21 and over the age of 18 throughout his employment, his award for each year of service is restricted by statute to half a week’s pay. The respondent will be ordered to pay in respect of redundancy payment the sum of £184.00 to the claimant.
(37) The respondent is also ordered to pay to the claimant in respect of contractual monies due and owing on the date of termination of employment or arising from the termination of employment the following sums: - the sum of £184.00 for wages due and owing, the sum of £368.00 in lieu of two weeks notice, and the sum of £114.00 in respect of accrued holiday leave. In total the respondent is ordered to pay to the claimant the sum of £850.00.
(38) As the claimant did not register for Jobseeker’s Allowance until August 2009 the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply to this decision as the claimant made no claim for Jobseeker’s Allowance or income support during the period in which the award is relevant to.
(39) This is a relevant decision for the purposes of the Industrial Tribunals (Interest Order) (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 October 2009, Belfast.
Date decision recorded in register and issued to parties: