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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Semczyszym v Tenderlean Meats Limited (In A... [2010] NIIT 00386_10IT (03 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/00386_10IT.html
Cite as: [2010] NIIT 00386_10IT, [2010] NIIT 386_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 386/10
CLAIMANTS: Bartosz Semczyszym
RESPONDENT: Tenderlean Meats Limited (In administration)
DECISION
The decision of the tribunal is that the correct name of the parties is as detailed above and the title of the proceedings is ordered to be amended accordingly. Further the claimant was unfairly dismissed as the respondent failed to follow the statutory dismissal procedure. The claimant is awarded the sum of £961.48 in respect of basic award and £913.50 in respect of the compensatory award. The respondent is ordered to pay to the claimant the sum of £1,874.98.
Constitution of Tribunal:
Chairman: Ms M Sheehan
Members: Mr A White
Mr J Kinnear
Appearances:
The claimant was represented by Florence Smith, Solicitor, of Donnelly and Kinder Solicitors.
The respondent did not appear and was not represented
1. The claimant presented a claim form on 19 February 2010 stating that his employment with the respondent was terminated without notice on
24 November 2009. The claimant alleged that the respondent since his dismissal had failed to account to him for notice pay or a redundancy payment. His manager refused to answer his telephone calls or to respond to enquiries submitted on his behalf by his union representative on 15 December 2009, including a request to exercise his right of appeal against dismissal. The claimant having received no response to his request for an appeal submitted his claim to the Office of the Industrial Tribunals and Fair Employment Tribunal.
Issues
2, The issues for the tribunal were:
(a) Was the claimant unfairly dismissed on the grounds of redundancy
and
(b) is the claimant entitled to pay in lieu of notice.
The claimant indicated at the outset of the hearing that, in light of the written consent received from the appointed court administrators to the claim for those matters proceeding, the claimant withdrew the elements of his claim relating to monies due in lieu of holidays accrued but not availed of while in employment and failure to provide written reasons for his dismissal.
Evidence
3. The tribunal considered the claim form; documentation received from the claimant and heard the claimant’s oral evidence. An interpreter, Agnieszka Wibdarska, was sworn in at the outset of the proceedings.
Findings of Fact
4. The claimant who was born on 13 May 1976, commenced employment with the respondent on 14 August 2007 as a delivery driver. The claimant initially delivered goods in Northern Ireland but from January 2008, most of his delivery routes were in Southern Ireland. However at all times his vehicle was maintained or serviced at the respondent’s premises in Derrylin and his immediate line manager was based at those premises. At the time of dismissal the claimant was paid approximately £240.37 gross per week, being £203.00 net.
5. The claimant was initially advised on 24 November 2009 by a work colleague Marchin who was based at the respondent’s premises in Derrylin that Mark McCaffrey, his line manager, had told Marchin to telephone the claimant and advise him that he was finished working for the respondent. Marchin advised him that he did not know the reason for the claimant’s employment being terminated. The claimant made a number of attempts to contact Mr McCaffrey but his calls were unanswered. The claimant contacted his trade union and a Mr Gareth Scott of Unite wrote to the HR Manager of the respondent company on 15 December 2009 requesting formally the reasons for the claimant’s dismissal and to exercise his right of appeal. No response was received to that correspondence.
6. In December the claimant had email contact with a female employee in accounts who forwarded him his P45 and monies due for outstanding pay and holidays. The P45 states that his last date of employment was 24 November 2009. In April the claimant became aware that the respondent went into administration.
7. Since dismissal the claimant did not seek JobSeekers Allowance and gained alternative employment. The claimant now believes that his employment was terminated due to the financial difficulties the respondent was under but that the respondent made no effort to comply with the statutory dismissal procedures that should have applied in those circumstances.
The Law
8. The tribunal considered the
provisions of Article 130A of the Employment Rights (Northern Ireland) Order
1996 which states that an employee such as the claimant who has been dismissed
shall be regarded as unfairly dismissed where the statutory disciplinary
procedure applied; was not completed by the respondent and the non – completion
is wholly attributable to the failure of the respondent to comply with the
statutory requirements. Article 130A (2) states that failure by an employer to follow
the statutory disciplinary procedure shall not be regarded for the purposes of
Article 130 (4) of Employment Rights (Northern Ireland) Order 1996 as by itself
making the employer’s action unreasonable and therefore unfair if the employer
can show that the employee would have been dismissed had the procedure been
followed.
Alexander and Hatherley v Bridgen Enterprises Ltd [2006]
IRLR 422 is authority for the proposition that “it is not open to an
employer who is in breach of the minimum statutory procedure to contend that
even had he complied with them the result would have been the same”. However,
once “the statutory procedures have been complied with, employer are thereafter
provided with a defence for failing to comply with fuller procedural safeguards
if they can show that dismissal would have occurred anyway even had such
procedures been properly followed”.
9. The reasons set out in Article 130 (2) encompass amongst others redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry 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.
10. Where the respondent has established the reason, the tribunal must determine whether the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the claimant having regard to the circumstances of this case and that question “shall be determined in accordance with equity and the substantial merits of the case”.
11. If an employer fails to follow the statutory dismissal procedure, it was held in Polkey v AE Dayton Services Ltd [1998] ICR 142, that the tribunal may reduce the compensatory award by an appropriate percentage to reflect the probability of a dismissal occurring in any event had the statutory procedure been completed.
12. In Software 2000 Ltd v Andrews [2007] IRLR 568 it was established that the s 98A (2) (the equivalent provision in Northern Ireland being Article 130A(2)) exercise of determining whether the employer has shown that the employee would have been dismissed if a fair procedure had been followed, and the assessment of whether, instead, the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel” One of the five possible outcomes is “the employer may show that if fair procedures been complied with, the dismissal would have occurred when it did in any event. The dismissal will then be fair” in accordance with Article 130A (2) of the 1996 Order.
13. As the respondent gave no notice of termination, the date of termination is governed by Article 129 (1) (b) of the Employment Rights (Northern Ireland) Order 1996 and is the date the “termination takes effect”.
14. Under Article 118B of the 1996 Order an employer is required to give minimum notice to terminate the contract of employment of a person of not less than one weeks’ notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.
Applying the Law to Facts Found
15. On consideration of all the evidence before it the tribunal is satisfied the claimant was unfairly dismissed due to the respondent’s failure to adhere to the statutory dismissal procedure. The tribunal is satisfied that the claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent requiring fewer employees to do the type of work being done by the claimant. There was no reason available to the respondent to explain its failure to comply with its obligations under the Employment Rights (Northern Ireland) Order 2006 as amended. In all the circumstances of this case the tribunal determined that the date of effective termination of the claimant’s employment was 24 November 2009. It was clear to the tribunal that had the respondent attempted to adhere to the statutory dismissal procedures – including the claimant’s right to an appeal - it was more than likely that he would have been employed for a further short period. However the tribunal could not rule out that such extension of the claimant’s employment would be longer than a week. The claimant sought compensation only as a remedy.
Basic Award
16. The tribunal considered Articles 17 to 20, 146, 152, 153, 154 (1A) and (1B) and 157 to 162 of the Employment Rights (Northern Ireland) Order 1996. The tribunal considered the provisions for adjustment of awards where there has been non – completion of statutory procedure as detailed in Articles 17, 23 and 29 of the Employment (Northern Ireland) Order 2003. There was a clear flouting of the Statutory Dismissal Procedure by this respondent, as well as their own contractual procedures. As there was no break in the claimant’s continuity of employment between the 14 August 2007 and 24 November 2009, the claimant had two complete years of service, commencing when he was aged 31 years. This would have entitled the claimant to two weeks gross pay for the basic award. However the tribunal considered the provisions of Article 154 (1A) and (1B) and considered that the prescribed minimum basic award of four weeks pay would not “result in injustice” to the respondent, given the nature and the size of the organisation and the circumstances in which this dismissal occurred.
17. The claimant is entitled to a payment calculated in accordance with Article 154 of the 1996 Order and the Employment Rights (Increase of Limits) Order (Northern Ireland) 2009 No.45 as follows;
4 x 1 x gross weeks pay namely £240.37 = £961.48
Compensatory Award
18. The evidence before the tribunal leads to the conclusion, on the balance of probabilities, that had the respondent followed a fair procedure the claimant would have been dismissed in any event, perhaps within a week of the actual date of termination, but with notice or monies in lieu of same. Article 118B of the 1996 Order implies a minimum notice requirement of two weeks in to the claimant’s contract of employment with the respondent. The claimant did not receive proper notice of termination of his employment from the respondent. Further the failure to follow the statutory dismissal procedure prevented the claimant from receiving pay for at least a further one week period. It appeared to the tribunal that it was “just and equitable” to restrict the claimant’s loss due to the actions of the respondent to the loss of pay for that three week period. The claimant was entitled to two weeks net pay being 2 x £203.00 which amounts to £406.00 and one weeks pay for the loss of wages while a statutory dismissal procedure was effected.
19. The tribunal is satisfied that the provisions of Article 17 (3) of the 2003 Order are satisfied. Article 158A is clear that this duty to increase arises in respect of the compensatory award (Article 152 (1) (b)). There are no exceptional circumstances in this case that would make a requisite increase in the compensatory award unjust or inequitable. The respondent in this case showed a total disregard for the claimant’s contractual rights. There is little guidance as to the factors to be taken into account in determining whether it is just and equitable in all the circumstances to increase any award from the prescribed ten percent by an amount that does not exceed fifty percent. This tribunal has taken into account the social policy that underlies the introduction of this statutory procedure, the circumstances of this case, in particular that a HR resource was available but not utilised by the respondent organisation. The picture the tribunal has obtained of the respondent organisation is that the respondent had a cavalier attitude to its statutory obligations. This tribunal has concluded that this case is as suitable a case as any that might arise in the future where it is just and equitable to increase any award that may be made. It is difficult to envisage the circumstances, due to the lack of case law on this issue, where an increase over and above the ten percent might arise but this tribunal determined that this was such a case and considers the appropriate uplift in the compensatory award in this case is fifty percent.
Basic Award (as per Article 154 (1A))
4 weeks pay @ £240.37 £961.48
Compensatory Award
Two weeks net pay @ £203.00 £406.00
One weeks net pay @ £203.00 £203.00
50% increase on £609.00(as per Article 158A) £304.50
Total Award £1,874.98
20. The Employment Protection (Recoupment of JobSeeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply to this decision as the claimant did not register for same.
21. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21 June 2010, Belfast
Date decision issued to parties: