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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McClements v Dunlop [2009] NIIT 5795_09IT (26 November 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/5795_09IT.html
Cite as: [2009] NIIT 5795_09IT, [2009] NIIT 5795_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 05795/09
CLAIMANT: Terry McClements
RESPONDENT: Joseph Dunlop
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. Further, the tribunal finds the claimant’s claims for unauthorised wages deductions and unpaid notice pay and holiday pay to be well-founded. The tribunal also finds the respondent to be in breach of the statutory requirement to provide itemised wage statements and the requirement to provide employment particulars and the tribunal makes a declaration that the respondent has failed to comply with these statutory requirements and awards a sum equivalent to two weeks’ pay in regard to the latter. In regard to all of the foregoing, the tribunal Orders the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £19,822.00.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Dr Ackah
Mr Hanna
Appearances:
The claimant appeared and represented himself.
There was no appearance by or on behalf of the respondent.
REASONS
1. The tribunal heard oral evidence from the claimant, there being no appearance by or on behalf of the respondent and documents were submitted by the claimant which were noted by the tribunal in evidence.
THE ISSUE
2. In his claim to the tribunal dated 13 May 2009 and received by the Office of Tribunals on 14 May 2009, the claimant claimed breach of contract and unauthorised deduction of wages. He claimed that he was not paid holiday pay and notice pay. There was further correspondence from the claimant to the Office of Tribunals dated 6 July 2009 whereby the claimant requested to be permitted to add to his case:
“Unfair dismissal, contract of employment, I was never supplied with payslips”.
The Office of Tribunals wrote to the respondent on 10 July 2009 attaching a copy of the said letter of 6 July 2009 from the claimant and requesting that any objections to the aforementioned claims being added to the claim by way of amendment were to be furnished to the Office of Tribunals by Monday 27 July 2009. Nothing was forthcoming from the respondent in response to the said letter. A Chairman of Tribunals by order duly granted the amendments to the claim as requested by the claimant as there had been no objections on the part of the respondent. At the outset of the hearing the tribunal clarified with the claimant his claims and these claims were clarified as constituting claims for (1) unfair dismissal, (2) no written statement of particulars of employment, (3) no itemised pay statements, (4) breach of contract (non-receipt of pay in lieu of notice), (5) unauthorised deduction from wages, and (6) non-payment of holiday pay. Accordingly, the tribunal had to determine whether these claims, as made and as further clarified at hearing, were well-founded and, if so, the tribunal had to determine the matter of remedy and appropriate orders in the matter.
THE TRIBUNAL’S FINDINGS OF FACT
3. In consequence of the oral and documentary evidence before it, the tribunal on the balance of probabilities determined the following material facts:-
(a) The claimant commenced employment with the respondent on 18 February 2008 (the claimant had incorrectly stated the commencement date in his claim form but he clarified the foregoing date as being the correct employment commencement date at the tribunal hearing). This was an oral contract of employment and the claimant was never provided by the respondent any written statement of main terms of conditions of employment. At the commencement of the employment the claimant worked what is known as a “lying week”. In other words, he worked for two weeks and at the end of the second week he was paid one week’s pay, the wages thus being in arrears by one week throughout the course of this employment. He was employed as a van driver and store person by the respondent but he undertook other tasks. The respondent was engaged in the kitchen and bathroom supply and fitting business.
(b) In this employment the claimant was paid gross pay of £353.39 per week and net pay, after deductions, of £275.00. Apart from exceptional circumstances, the claimant was paid a standard wage every week throughout this employment. The claimant only ever received one itemised pay statement, that being in respect of the week ending 28 March 2008. That wage statement was seen and inspected by the tribunal and the information therein served to verify the foregoing wage details.
(c) The claimant became aware some time in January of 2009 that the volume of business undertaken by the respondent’s company had diminished. On 10 March 2009 the respondent spoke with the claimant and told him that the employment was to be terminated with effect from 13 March 2009, that latter date being a Friday. Apart from the foregoing, there was no warning or consultation with the claimant and, as far as the claimant was concerned and to the best of the claimant’s information, the business continued after his dismissal. At the time of the dismissal the respondent informed the claimant that he would be paid notice pay and holiday pay outstanding. However, the claimant only received his normal weekly wages that were due to him for the period up to 13 March 2009 and nothing further thereafter. At the effective date of dismissal the claimant had been employed for one complete year.
(d) The customary leave arrangement was that the claimant was entitled to 30 days’ leave with pay in each year of which 22 days were fixed customary holidays and eight days were discretionary leave to be arranged and agreed between the claimant and the respondent. The claimant received his full entitlement to leave for the year 2008. At the time of termination of the contract the claimant was owed five days pay for untaken leave. The claimant was also owed a full week’s wages in respect of the “lying week”. Further to that, the claimant was owed two days’ pay in respect of notice, having received only three days’ notice of termination of employment and he would have been entitled to one week under the statutory provisions mentioned below.
(e) After termination of employment, the claimant immediately signed on for Job Seeker’s Allowance which he received. He was still in receipt of this benefit at the date of the tribunal hearing.
(f) The claimant explained to the tribunal his endeavours to secure alternative employment. The tribunal inspected Job Seeker’s Allowance records and some documentary evidence of the claimant’s endeavours to secure employment. The claimant remained unemployed at the date of the tribunal hearing. He did allude in the course of the hearing to possible self-employment or re-training. The claimant was prepared to travel to England to endeavour to seek employment. The tribunal is satisfied on the strength of this evidence as to the claimant’s proper and genuine endeavours to secure employment. Regrettably, he had not been successful at the date of the hearing in gaining employment.
(g) The tribunal did not need to determine any further facts for the purposes of its decision in this case.
THE APPLICABLE LAW
4. In respect of the law in regard to unfair dismissal, 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. It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal. In the application of this statutory guidance, the leading authority is the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439. 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 and a compensatory award. Under Article 153 of the 1996 Order the basic award is calculated with reference to the effective date of termination of employment. For the compensatory award under Article 157 of the 1996 Order, the award is 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.
5. The Employment (Northern Ireland) Order 2003 ("the 2003 Order") amends the 2006 Order and includes provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals and under Article 23, in relation to procedural fairness in unfair dismissal. Article 130A (1) of the 1996 Order, thus amended, provides that an employee who is dismissed, whether or not his dismissal is unfair or regarded as unfair for any other reason, is to be regarded as being unfairly dismissed if a statutory dismissal and disciplinary procedure (as set out in the 2003 Order) applies in relation to the dismissal, the procedure has not been completed, and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. Article 154(1A) of the 1996 Order provides that the basic award in any automatically unfair dismissal pursuant to Article 130A (1) must amount to at least four week’s pay unless that would be unjust to the employer. 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. Article 17 (3) of the 2003 Order provides for an adjustment of compensation as follows:- “ If, ..... it appears to the industrial tribunal that— the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and 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…. 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”. The jurisdictions to which that adjustment applies are set forth in Schedule 2 to the 2003 Order and these include the claims of unauthorised wages deductions, unfair dismissal, redundancy payments, breach of employment contract and termination, and breach of the Working Time Regulations (Northern Ireland) 1998.
In regard to unpaid wages Article 45 of the 1996 Order provides that where the total amount of wages paid by an employer to a worker employed by him is less than the total amount of the wages properly payable, the amount of the deficiency shall be treated as a deduction made by the employer from the worker’s wages and the tribunal may make an appropriate order.
In regard to notice pay the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 is applicable in relation to breach of contract by non payment of notice pay and the tribunal may make an appropriate order.
In relation to annual leave, Regulation 13 of the Working Time Regulations (Northern Ireland) 1998 as amended by the Working Time (Amendment) Regulations (Northern Ireland) 2007 applies and the tribunal may make an appropriate order.
.
Finally, Article 40 of the 1996 Order requires an employer to provide itemised wage statements and Articles 33 and 36 of 1996 Order require the provision of written employment particulars. Article 118 of the 1996 Order provides for a minimum period of statutory notice dependant upon length of service. Article 27 of the 2003 Order applies to proceedings before tribunal relating to unfair dismissal and the other claims set out in Schedule 4 to the 2003 Order. In any proceedings in regard to any of those scheduled claims if the tribunal finds in favour of the employee, but makes no award to him, but the employer was in breach of the duty to provide a statement of employment particulars, the tribunal must make one of the specified awards unless there are exceptional circumstances which would make such an award unjust or inequitable. These awards are, at the tribunal’s discretion, either two or four weeks’ pay
THE TRIBUNAL’S DECISION
6. In this case it is clear to the tribunal that the claimant was employed by the respondent without any regard to many statutory procedures including the requirement contained in Article 40 of the 1996 Order to provide itemised wage statements and the requirement contained in Articles 33 and 36 of 1996 Order to provide employment particulars. In this regard, the tribunal makes a declaration that the respondent has failed to comply with these foregoing statutory provisions and, taking account of Article 27 of the 2003 Order, awards a sum equivalent to two weeks’ pay.
7. Turning then to the question of wages due and owing, the claimant worked a “lying week” and upon termination of employment he was not paid wages due. This is an unauthorised deduction of wages under Article 45 of the 1996 Order. Therefore the claimant would be entitled to a full week’s wages in respect of this.
8. In respect of pay in lieu of notice, Article 118 of the 1996 Order (in the absence of any enhanced contractual provision) provides that on the facts of this case the claimant would have been entitled to be paid a week’s pay in lieu of notice. As the claimant received three days’ notice, two days’ pay would be due to him under this heading.
9. In respect of unpaid holiday pay, the tribunal is satisfied that the claimant was owed five days’ pay in respect of untaken leave at the time of termination of the contract. He would therefore be entitled to five days’ pay in respect of this.
10. In respect to the issue of unfair dismissal, it is clear that the claimant was dismissed without regard to any due and proper procedure. Quite apart from the inherent unfairness of the manner of dismissal, the dismissal was in breach of the statutory procedures set out in the 2003 Order as mentioned above. Article 130A (1) of the 1996 Order (as amended) provides that such a dismissal is to be deemed automatically unfair. Accordingly, the claimant was unfairly dismissed by the respondent. Even if the tribunal had not made that determination (in the absence of any argument that if fair procedure had been followed the claimant would have been dismissed in any event), the tribunal would nonetheless have found the dismissal to be unfair, as the procedure adopted by the respondent was unfair, the employer has not shown the reason for dismissal and that it falls within one of the specified categories (or some other substantial reason), and the employer’s conduct does not fall within the test of reasonableness in the context of the guidance provided by the case of Iceland Frozen Foods Limited v Jones mentioned above.
11. In determining appropriate compensation, firstly, the tribunal notes that the loss flowing from this unfair dismissal continued from the date of dismissal until the date of the tribunal hearing. The tribunal further notes that claimant had made proper and earnest endeavours to secure alternative employment, but without success. Therefore all of the loss flowing from the dismissal is properly compensatable. Looking at the situation of the claimant, the tribunal determined that compensation for future loss should properly be awarded for a period of six months beyond the tribunal hearing date and the calculation of compensation set out below is based on that assessment on the tribunal’s part.
12. Turning then to the enhancement of compensation, the statutory provisions mentioned above provide that, unless there is reason otherwise to do so (which the tribunal determines does not apply in this case), an enhancement of 10% must be applied by the tribunal to relevant compensation. The tribunal has a further discretion beyond that up to a figure of 50%. In this case, looking at all of the facts and considering the relevant case law upon the issue of uplift in compensation for guidance, the tribunal determines that an appropriate enhancement for relevant compensation is 20% for the failure on the part of the respondent to follow the statutory procedures. That percentage enhancement is applied to the calculation of compensation as appropriate that is set out below.
13. Accordingly, the tribunal finds the claimant’s claims to be well-founded and the tribunal orders the respondent to pay to the claimant compensation, as follows:-
(a) Unauthorised Deduction of Wages
The tribunal awards one week’s pay = £ 275.00
(b) Notice Pay
The tribunal awards two days’ pay = £110.00
(c) Holiday Pay
The tribunal awards five days’ pay = £ 275.00
(d) Basic Award for Unfair Dismissal
The tribunal determines that a basic award is applicable. The claimant’s gross pay was £353.39 per week. However a statutory maximum of £350.00 applies. The claimant had been continuously employed for one year. Article 154 (1A) of the 1996 Order provides that the 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.
£350.00 x 4 = £1,400.00.
(e) Compensatory Award for Unfair Dismissal
The claimant’s nett pay was £275.00 per week. The employment was terminated with effect from 13 March 2009. The claimant signed on for Job Seeker’s Allowance from 13 March 2009 and he remained in receipt of that up to the hearing date. The tribunal has determined that compensation for loss flowing from the dismissal shall continue up to the hearing date, 8 September 2009 (equivalent to a period of 25 weeks) and with an award for future loss for a period of six months beyond the hearing date. The full loss period is 51 weeks. The applicable loss compensation calculation is therefore as follows:-.
Loss to date of hearing: £275.00 x 25 = £6,875.00.
Future loss: £275.00 x 26 =£7,150.00
Total: £275.00 x 51 = £14,025.00.
(f) Compensation for Loss of Statutory Rights
The tribunal’s award for loss of statutory rights = £250.
(g) Enhancement of Compensation
The enhancement applied to the relevant heads of compensation as foregoing on foot of the discretion afforded to the tribunal by Article 17(3) of the 2003 Order is 20%. Thus the respective sums awarded under (a), (b), (c) and (e) above are increased by 20% of that total amount = £2,937.00
(h) Compensation under Article 27 of the 2003 Order for failure to provide employment particulars
The tribunal’s award is two weeks’ pay £275.00 x 2 = £550.00.
Total = £19,822.00
14. 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: £19,822.00
(b) Prescribed Element: £8,250.00
(c) Prescribed Period: 13 March 2009 to 8 September 2009
(d) Excess of (a) over (b): £ 11,572.00
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.
Interest
15. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 8 September 2009, Belfast.
Date decision recorded in register and issued to parties: