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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wood v Leslie Conn [2010] NIIT 00416_10IT (24 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/00416_10IT.html
Cite as: [2010] NIIT 00416_10IT, [2010] NIIT 416_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 416/10
CLAIMANT: Michael Wood
RESPONDENT: Leslie Conn
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The Claimant’s claims in respect of failure to provide a written statement of terms and conditions of employment and failure to provide itemised pay statements are well-founded. The tribunal orders the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £2,786.00 in compensation.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Mr J Smyth
Mr J Patterson
Appearances:
The claimant appeared and was represented by Mr G O’Neill of Banbridge & District Citizens Advice Bureau.
The respondent appeared and represented himself.
Reasons
1. The tribunal heard oral evidence from the claimant and the claimant's spouse, and from the respondent, and an agreed bundle of documents was admitted in evidence and further documents were adduced in evidence, by agreement.
The Issue
2. In his claim to the tribunal, dated 23 February 2010, the claimant claimed that he had been unfairly dismissed from employment, that he had received no itemised pay statements, that he had received no written contract of employment, that he had suffered unauthorised deductions from wages, that he was owed holiday pay, that no statutory dismissal procedures had been followed in connection with his dismissal from employment and that he was dismissed in breach of contract with no pay in lieu of notice being afforded. In his response to the claim, the respondent contended that the claimant had been given notice of termination of employment and that the employment was terminated and the claimant was then re-employed on a week-to-week basis. It was contended that the claimant had failed to provide P45 documentation and that the claimant had been responsible for sub-standard performance in work and, in general terms, the claimant’s claims were defended. Accordingly, the tribunal had to determine the various claims made on the part of the claimant and if these were well-founded, the matter of appropriate award of compensation or other remedy.
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 respondent conducts a business as a sole trader known as “Pitstop Wash and Valet” from premises at Hillhall Road, Lisburn, County Antrim. The claimant responded to an advertised post in Lisburn Jobcentre for a car wash attendant and car valeter and this employment commenced on 20 October 2008. The claimant contended that the employment commenced on 6 October 2008 and the respondent disputed that start date and indeed referred to a “trial period”, with a much later start date. However, having heard the evidence in the matter, the tribunal finds that 20 October 2008 was the commencement date for the period of employment of the claimant by the respondent in this case. No written statement of main terms and conditions of employment was ever afforded to the claimant by the respondent. The respondent prepared a draft statement to aid the tribunal, but the tribunal is satisfied that no such document was ever put to the claimant and agreed as constituting the written terms of the employment in this matter.
(b) At the time the claimant commenced employment, he was under the age of 18 years and he received £150.00 per week in respect of his nett wage, paid to him in cash at the end of each week by the respondent. In April 2009 the claimant attained the age of 18 years and his nett pay was thereafter increased to £170.00 each week. The gross pay was £192.50 each week. The claimant’s normal working hours were Tuesday through to Friday, 9.00 am to 5.00 pm, and on Saturday from 9.00 am to 4.00 pm. At no stage did the claimant ever receive an itemised pay statement from the respondent. The tribunal is uncertain from the evidence in this case whether any contractual holidays were ever agreed and the tribunal believes it to be more probable that no contractual holidays were agreed and therefore the statutory annual leave provisions would apply in this matter.
(c) There was an issue upon which the respondent relied concerning what the respondent contended to be the claimant’s responsibility for failure to supply the respondent with a P45 upon commencement of this employment. The tribunal heard the evidence from the parties and it is unclear why a P45 was not afforded by the claimant to the respondent. The claimant’s version of things was that he had not been properly requested by the respondent to provide this and the respondent’s version was that he had asked for the P45 on a number of occasions but, notwithstanding these requests, it had not been supplied to him by the claimant. The tribunal will return to this issue further below.
(d) The respondent’s contention in his evidence was that he had dismissed the claimant, with due notice, in June 2009 and that the claimant had been re-engaged by the respondent on 27 July 2009. The respondent’s evidence in this respect was that, due to unsatisfactory work towards the end of June 2009, the claimant was given notice of termination of employment at a time when the respondent and his wife were soon due to depart for a holiday in the USA. The respondent’s further contention is that, upon the expiry of the notice given, the contract of employment came to an end but that the claimant was then re-engaged by the respondent on what the respondent described as a “week to week” basis, that being with effect from 27 July 2009 onwards. Upon questioning both the respondent and the claimant regarding the facts of the matter, the tribunal’s factual determination is that there was not a break in the continuity of the contract of employment at this point and indeed the employment was continuous from its start date, on 20 October 2008, until December 2009.
(e) The respondent’s further evidence was that, due to complaints on the part of a number of customers regarding poor workmanship, the respondent gave verbal notice of termination of employment to all his employees, including the claimant. Specifically, the respondent required the claimant to work two weeks’ notice until he had found a replacement. There was nothing of this put in writing to the claimant at the time. Then on 5 December 2009 the respondent spoke with the claimant and told the claimant to collect his belongings and to leave the work premises that day.
(f) The claimant did not receive any P45 from the respondent upon this termination of employment and he was not sure if he would be entitled to claim JobSeekers Allowance. On 16 December 2009 the claimant sought advice from the Citizens Advice Bureau and they assisted the claimant in despatching a grievance letter to the respondent. That grievance letter was sent on 17 December 2009 and contained the claimant's grievance complaints regarding the failure to provide a statement of terms and conditions of employment, pay in lieu of notice, an itemised wage statement, and also holiday pay. Further letters were then sent by the Citizens Advice Bureau.
(g) The claimant received JobSeekers Allowance from 17 December 2009 onwards at a rate of £50.95 per week. The claimant then was engaged in employment from 4 January 2010 with Thompson Leisure, again doing car washing and car valeting. However, this employment came to an end on 7 May 2010, with the claimant receiving one week’s pay in lieu of notice.
(h) The tribunal did not need to determine any other material findings of fact for the purpose of reaching a decision in this case.
The Applicable Law
4. The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 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 under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and, under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include conduct (normally in effect “misconduct”). If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or reinstatement is inapplicable, a tribunal may make an order for compensation, including both a basic award and a compensatory award. For the compensatory award under Article 157, the award is such amount as the tribunal considers just and equitable, having regard to the loss sustained by the complainant in consequence of a dismissal, insofar as that loss is attributable to action taken by the employer.
5. The Employment (Northern Ireland) Order 2003 ("the 2003 Order") includes provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure (the dismissal and disciplinary procedures) and adjustment of awards by industrial tribunals and, under Article 23, in relation to procedural fairness in unfair dismissal. 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, the tribunal shall normally 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 up to 50 per cent. In regard to procedural fairness, the 1996 Order (as amended by the 2003 Order) provides at Article 130A that an employee who is dismissed shall be regarded as unfairly dismissed if one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (the dismissal and disciplinary procedures) 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. Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures which must be followed in most circumstances.
6. Article 45 (1) and Article 45(3) of the 1996 Order relate to unauthorised deductions from wages and it is provided that any deficiency shall be treated as a deduction made by the employer from the worker’s wages. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 is applicable in relation to breach of contract. 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.
The Tribunal’s Decision
7. In this case the tribunal sees an employer who has had no regard whatsoever (as indeed the respondent very forthrightly conceded in the course of the hearing) to any of the statutory procedures that are designed to provide essential employment rights and protection and encourage dispute resolution. Further, for a rather lengthy time now it has been a requirement to provide a statement of terms and conditions of employment in writing to any employee and to provide itemised wage statements. In regard to the first requirement, the respondent has endeavoured to raise no defence whatsoever. In respect of the latter, he has argued that the claimant’s stated failure to provide him with a P45 has been the reason for his admitted failure to comply with this statutory provision. The tribunal does not accept the validity of the respondent’s explanation in respect of the second of these defaults. Further to that, there has been continuity of employment for in excess of one year. Thus under the provisions of Article 126 of the 1996 Order the claimant has the right not to be unfairly dismissed. That right has been very evidently breached by the respondent. There has been no endeavour whatsoever by the respondent to engage in the statutory dismissal procedures that exist under the provisions of the 2003 Order, as mentioned above. It follows that the claimant’s dismissal is unfair both under the terms of Article 130A of the 1996 Order and, further, also under the general law of unfair dismissal for the reason that the dismissal was conducted without any notion of procedural fairness and was also substantively unfair. The dismissal reason as specified by the respondent was conduct. There is no need, in cases like this, for the tribunal to recite in detail the long-established case law in respect of conduct-related dismissals (for example Iceland Frozen Foods v Jones [1982] IRLR 439). It is sufficient to summarise the matter by stating that the respondent’s action in effecting the dismissal of the claimant has fundamentally breached principles of fairness and natural justice and has entirely departed from the principles enshrined in such cases as British Homes Stores v Burchell [1980] ICR 303.
8. In respect of the claim for failure to pay holiday pay, the parties at hearing, very helpfully, agreed that a period of fifteen days’ holiday pay was outstanding upon termination of employment. That had not been paid. Accordingly, the tribunal finds the claimant’s claim for unpaid holiday pay to be well-founded (to the extent agreed) and compensation in respect of that is set out below.
9. In respect of the claim for failure to provide a written statement of terms and conditions of employment that is in breach of Articles 33 and 36 of the 2006 Order and the tribunal finds the claimant’s claim to be well-founded in regard to this. A similar finding is made by the tribunal in respect of the failure to provide itemised wages statements, that being in breach of Article 40 of the 2006 Order.
10. In respect of the claimant’s claim for unpaid pay in lieu of notice (breach of contract) under the foregoing statutory provisions, the claimant in the absence of any contractual provision giving an enhanced entitlement would be entitled to one week’s notice or pay in lieu of notice. However, the claimant appears to have been given notice of termination of employment of some five working days and accordingly this claim is not made out and is not upheld by the tribunal.
11. In respect of compensation for unfair dismissal, the claimant was employed by the respondent for one complete year at the effective date of termination of employment. The applicable gross weekly pay was £192.50. The respondent is in breach of the provisions of the 2003 Order and under Article 23 of the 2003 Order (Article 154 (1A) of the 1996 Order, as amended) the tribunal is entitled to award four weeks’ pay in regard to the basic award and the tribunal makes such an award in this case. In respect of the compensatory award, the nett pay per week at the date of termination was £170.00. The claimant was dismissed from employment with effect from 5 December 2009 and he was then engaged in new employment on 4 January 2010. That latter employment was at a wage in excess of that earned by the claimant with the respondent. There was no loss throughout that period of further employment. The tribunal notes the submission made on behalf of the claimant that upon termination of that subsequent employment, with effect from 11 May 2010, the loss flowing from the unfair dismissal recommenced. The tribunal has carefully noted the claimant’s representative’s submission in that regard and the English Court of Appeal case cited in argument (Dench v Flynn & Partners [1998] EWCA Civ 934). However, in regard to the issue of causation, the tribunal on account of the statutory provisions mentioned above is obliged to attribute a connecting cause to the stated continuing loss. Examining the facts of the matter, the tribunal finds that the proper cause of the claimant’s loss beyond 11 May 2010 is not to be attributed to any action or default on the part of the respondent. Accordingly the period of compensation for loss is that represented by the figures below, the loss period extending up to the 4 January 2010 but not beyond that date.
12. Turning then to the issue of statutory uplift in compensation, here the tribunal observes an employer who has had no regard whatsoever to statutory provisions contained in the 2003 Order. What prevents this uplift being set at a figure of 50 per cent is the evident fact that the respondent had no conception whatsoever of the statutory scheme. Whilst ignorance of the law is not normally a factor permitted to be brought into play in aid of an employer, in this case the tribunal believes that this is not a case where the employer was aware of and had a cavalier disregard for the statutory provisions, but rather here we see an employer who was entirely ignorant of his legal obligations. Under these circumstances, an appropriate percentage uplift in this case ought to be 40 per cent. That percentage uplift has been applied to the calculation of the award which is set out below.
13. Compensation
Unfair Dismissal - Basic Award
4 x £192.50 = £770.00
Unfair Dismissal – Compensatory Award
4 weeks x £170.00 = £680.00
The award for loss of statutory rights = £250.00
Total Compensatory Award = £930.00
Holiday pay – Award
15 days at £34.00 per day = £510.00
Total Award
The total award is £2,210.00
Unfair Dismissal – uplift in Compensatory Award (Article 17(3) of the 2003 Order)
£1,440.00 x 40% = £576.00
Total award of the tribunal, subject to recoupment = £2,786.00
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: £2,786.00
(b) Prescribed Element: £1,666.00
(c) Prescribed Period: 17 December 2009 to 24 June 2010
(d) Excess of (a) over (b): £1,120.00
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.
14. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 23 and 24 June 2010, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 416/10
CLAIMANT: Michael Wood
RESPONDENT: Leslie Conn
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 |
2,786.00 |
|
(b) Prescribed element |
1,666.00 |
|
(c) Period to which (b) relates: |
17/12/09 – 24/06/10 |
|
(d) Excess of (a) over (b) |
1,120.00 |
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 Health and Social Services 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 Health and Social Services 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.