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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Farmer v McKendry Fabrications Ltd [2010] NIIT 06682_09IT (03 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/06682_09IT.html
Cite as: [2010] NIIT 06682_09IT, [2010] NIIT 6682_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6682/09
CLAIMANT: Peter John Farmer (known as McMullan)
RESPONDENT: McKendry Fabrications Ltd
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and that the claimant is entitled to £3,129.92 in respect of unfair dismissal.
Constitution of Tribunal:
Chairman: Ms F Oliver
Members: Mr E Grant
Mr E Miller
Appearances:
The claimant appeared and represented himself.
The respondent did not appear and was not represented.
The Claim and the Response
1. The claimant claims unfair dismissal on the basis of unfair selection for redundancy and failure by the respondent to comply with redundancy dismissal procedures. The respondent filed a response indicating that it had dismissed the claimant due to a downturn in business within the company.
2. The respondent was informed of the date of hearing but did not attend the hearing. The managing director of the respondent company sent a letter of 12 March 2010 indicating that he was unable to attend the hearing and reiterating the reason for dismissal.
3. The tribunal decided that it would be appropriate, having regard to Rule 27 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to proceed with the hearing in the respondent’s absence.
Sources of Evidence
4. The tribunal heard oral evidence from the claimant and from his mother. The tribunal also considered the evidence contained in the Claim and Response.
The Issue
5. The issue is whether the claimant has been unfairly dismissed on the grounds of redundancy.
Findings of Facts
· The claimant commenced employment with the respondent on 10 April 2006 as an apprentice engineer. On 11 May 2009, he was told he was being dismissed on the grounds of redundancy. The claimant was given one week’s notice and his employment ended on 19 May 2009. The respondent was paid 1½ weeks redundancy and two week’s notice pay. At the time of his dismissal, the claimant was earning £262.00 gross and £218.13 net.
· The claimant commenced a level 2 apprenticeship course in September 2006 in Coleraine Technical College and completed it in June 2007. He was released from employment for two days a week for this course.
· The claimant commenced the level 3 course in September 2007 in Coleraine Technical College. This was a two year course and the claimant was released one day a week to attend the course. The claimant had completed his exams and was awaiting his Certificate at the time of his dismissal. We find that the claimant was not an apprentice at the time of his dismissal as on his own evidence, he was simply awaiting a signature from the managing director before the Level 3 Certificate would be issued.
· The company was experiencing a loss of contracts and a reduction in the number of employees required. At the beginning of May 2009 several employees were made redundant.
· On 11 May 2009, the claimant noticed a brown envelope pinned to the notice board in the respondent’s premises. The envelope contained a letter telling him he was being dismissed.
· There was no consultation with the claimant prior to his dismissal.
· The Statutory Dismissal Procedures were not followed.
· The company has continued to trade but with a reduced number of employees. The claimant did not apply for other jobs until the middle of September 2009. He got the first job he applied for and he commenced employment on 13 October 2009. The claimant is earning the same money as he was with the respondent.
· The claimant claimed JobSeekers Allowance once his employment ended.
The Law
6. By virtue of Article 126 of the 1996 Order an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined. However under Article 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.
7. The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where an employer is contemplating a dismissal. If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and award a minimum of four weeks’ pay if the basic award transpires to be lower than that figure. The tribunal must also increase any award which it makes to the employee by 10%, and if it considers it just and equitable in the circumstances, by a larger percentage up to a maximum of 50%. The percentage increase must be made unless there are exceptional circumstances which would make the increase of 10% minimum unjust or inequitable (Article 17).
Application of Findings of Fact to the Law
8. We find that there was a dismissal based on the claimant's evidence and the correspondence. The respondent failed to follow the Statutory Dismissal Procedures and the dismissal is therefore automatically unfair.
9. The claimant is entitled to a Basic Award of 4 weeks gross pay less 1 ½ weeks wages which he received as his redundancy entitlement.
10. The claimant is entitled to a compensatory award. The compensatory award should be increased by 20% due to the failure of the respondent to carry out the Statutory Dismissal Procedures.
11. The tribunal makes an award for loss of wages from the date of dismissal for a period of four months being the period in which the claimant should have found alternative work if he had commenced applying for jobs earlier. The tribunal noted that the claimant did not apply for an alternative job until almost four months after he had been dismissed. The claimant has a duty to mitigate his loss.
12. The tribunal then considered whether the claimant may have been dismissed even if the procedures had been correctly followed. On the basis of the evidence provided by both parties, we believe that there was a 50% chance that the claimant would have been dismissed in any event. We note that many companies are facing financial difficulties in the present economic climate and that other employees were made redundant around the same time. This is an indication that a genuine redundancy situation applied at the time of dismissal and we consider that there was a 50% chance that the claimant would have been chosen for redundancy if correct procedures had been followed.
13. The claimant is therefore entitled to a sum equivalent to two months wages which should then be increased by 20% for the failure to follow the Statutory Dismissal Procedures.
The tribunal finds that the claimant is entitled to the following:
Basic Award
4 x £262.00 £1,048.00
Less 1 ½ x £262 393.00
£ 655.00
Compensatory Award
£218.13 x 8.5 weeks (2 months) £1,854.10
20 % increase £ 370.82
£2,224.92
Loss of Statutory Rights £ 250.00
Total award £3,129.92
14. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Recoupment
15. The Recoupment Regulations apply. Attention is drawn to the notice below, which forms part of this Decision.
Chairman:
Date and place of hearing: 26 March 2010, Limavady
Date decision recorded in register and issued to parties:
Case Ref No: 6682/09
CLAIMANT: Peter John Farmer (known as McMullan)
RESPONDENT: McKendry Fabrications Ltd
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 Ire land) 1996.
|
|
£ |
|
(a) Monetary award |
£3129.92 |
|
(b) Prescribed element |
£2224.92 |
|
(c) Period to which (b) relates: |
18 May 09-18 July 09 |
|
(d) Excess of (a) over (b) |
£905.00 |
The applicant 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 applicant 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 applicant 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 applicant.
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 applicant 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 applicant, 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 applicant and regardless of any dispute between the applicant and the Department.