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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLernon v John McGorgray T/A JMC Service... [2010] NIIT 06713_09IT (25 February 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/06713_09IT.html
Cite as: [2010] NIIT 06713_09IT, [2010] NIIT 6713_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 06713/09
CLAIMANT: Joseph McLernon
RESPONDENT: John McGorgray T/A JMC Services
DECISION
The tribunal unanimously finds that the claimant was unfairly dismissed and it awards him compensation of £13,165.72. His claim for an unauthorised deduction of wages is dismissed.
Constitution of Tribunal:
Chairman: Mr B Greene
Members: Ms M Mulligan
Mr P Archer
Appearances:
The claimant was represented by Mr Tony Caher, Solicitor, of Campbell & Caher, Solicitors.
The respondent was neither represented nor in attendance.
SOURCES OF EVIDENCE
1. The tribunal heard evidence from the claimant and had received prior to hearing a submission on behalf of the respondent. The tribunal also received three bundles of documents, two from the claimant and one from the respondent amounting to 344 pages.
THE CLAIM AND DEFENCE
2. The claimant claimed unfair dismissal and unlawful deductions from wages by reason of not having received statutory sick pay from the respondent. The
respondent denied that the claimant had been unfairly dismissed or had not received any statutory sick pay to which he was entitled because the claimant was not an employee of the respondent but was an independent contractor. It asserted, in the alternative, that even if the claimant were an employee that his claim was out of time.
3. Messrs Wilson Nesbitt Solicitors remain on record for the respondent. By letter of 18 January 2010 Messrs Wilson Nesbitt notified the tribunal that the respondent has suffered from ill health and would not be attending the tribunal hearing. The letter also enclosed written representations on behalf of the respondent and a bundle of supporting documents.
The letter did not contain any application that the matter be adjourned to facilitate the respondent’s attendance.
Accordingly, the tribunal decided to hear this matter in the absence of an application from the respondent to adjourn or an objection from the claimant that the matter should proceed.
4. In course of the hearing the claimant abandoned his claim for unauthorised deduction of wages, by reason of not having received statutory sick pay from the respondent, as he believed such an application was a matter that had to be raised with Her Majesty’s Revenue and Customs. Accordingly, that aspect of the claimant’s claim is dismissed.
THE ISSUES
5. (i) Was the claimant an employee of the respondent?
(ii) If so, was the claimant unfairly dismissed by the respondent?
(iii) If the claimant succeeds in a claim for unfair dismissal what is the appropriate remedy?
(iv) If the claimant has a claim for unfair dismissal, is it excluded by reason of not having been brought within the appropriate time period?
(v) If the claimant’s claim for unfair dismissal is late, can the claimant avail of an extension of time to enable him to continue with his claim?
FINDINGS OF FACT
6. (i) The claimant is a diesel mechanic by occupation.
(ii) The respondent is a sole trader and works in the telecommunications industry.
(iii) The claimant worked for the respondent as a diesel mechanic initially in a self-employed capacity.
(iv) In November 2004 the claimant became an employee of the respondent. In so concluding the tribunal had regard to the following matters;-
(a) The claimant asserts that he became an employee in November 2004.
(b) He attended before the tribunal to give that evidence on oath and to present himself for cross-examination.
(c) The respondent has made contradictory claims in regard to this. In its response it maintains that the claimant became an employee from November 2005 and in its submission to the tribunal it appears to accept that he became an employee from November 2004.
(d) The respondent did not attend before the tribunal to give his evidence on oath and be available for cross-examination and therefore these apparent discrepancies could not be tested or clarified.
(v) In November 2008, due to a substantial reduction in the work being done by the respondent business for its main contractor BT, the claimant’s work was reduced to three days per week. He continued to be an employee.
(vi) In January 2009 the respondent proposed to the claimant that he would revert to a self-employed status. The claimant rejected that proposal.
The tribunal prefers the claimant’s evidence on this point. The respondent’s case is that the claimant became self-employed, although it was deferred until March 2009. The respondent’s evidence is contradictory. In his response form the respondent alleges that he proposed to the claimant that he would revert to self-employed status whereas in his submission to the tribunal he says he agreed to a request from the claimant to become a self-employed person.
(vii) It is common case that the claimant continued to be an employee of the respondent working three days per week from November 2008 until 31 March 2009.
(viii) The respondent alleges that on 1 April 2009 the claimant became a self-employed person by agreement. The claimant denies this.
The tribunal accepts the claimant’s account because;-
(a) The claimant denies being self-employed from 1 April 2009.
(b) The claimant attended before the tribunal to give his evidence on oath and to be available for cross-examination on the point.
(c) The respondent did not attend or enable his evidence on the point to be tested by cross-examination.
(d) The respondent produced a payslip for April 2009 which shows the claimant was paid as a PAYE employee for the
month of April 2009. The respondent alleges in its submission that this was a mistake. However, such a contention was not made on oath nor tested by cross-examination.
(e) That had the payments made in April been a mistake, as the respondent alleges, then one would have expected the income tax and national insurance contributions deducted by the respondent to have been refunded to the claimant thereafter and this was not done.
(f) In the P45 produced by the respondent the leaving date is described as 30 April 2009 and not 31 March 2009.
(g) The respondent has not adduced any documents to the tribunal that would be consistent with the claimant having become a self-employed person for example invoices or bills from the claimant to the respondent or payments made by the respondent.
(ix) On 1 May 2009 when the claimant attended for work he discovered that graffiti had been written around the walls adjacent to the premises where he worked. The said graffiti made allegations of illegality about the claimant. The police were contacted and the claimant was informed that his life was at risk. The claimant remained at work that day and spoke to the Police.
(x) Thereafter he attended with his GP who provided him with a sickness certificate for stress relating to threats to his life. A number of further sickness certificates were issued by the doctor, the last one exhibited being on 12 June 2009 for six weeks. The claimant attended his GP again on 22 July 2009 where he continued to suffer from a work related stress problem.
(xi) On 25 June 2009 the claimant received, by recorded delivery his P45. The P45 showed his leaving date as being 30 April 2009. It had a covering letter dated 9 June 2009. It was not posted until 24 June 2009. The claimant only became aware of his dismissal when he received his P45 and therefore the effective date of termination is 25 June 2009.
(xii) As the respondent does not admit that the claimant is an employee it did not follow the statutory dismissal procedure at all.
(xiii) The claimant became fit again for work on 25 August 2009.
(xiv) The respondent has alleged that the claimant carries out the business of selling motor vehicles. Three examples were presented to the tribunal. The claimant explained that those were vehicles belonging to him and he had put them in the car magazines to sell them. He denied being in the business of selling or buying motor vehicles. There was not any evidence before the tribunal to challenge the claimant’s explanation.
THE LAW
7. (i) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair (Article 130(1) and (2) The Employment Rights (Northern Ireland) Order 1996).
(ii) A dismissal will be automatically unfair if the statutory dismissal and disciplinary procedure applies, 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 130A(1) The Employment Rights (Northern Ireland) Order 1996).
(iii) A tribunal must consider whether a dismissal is automatically unfair under Article 130A even where this has not been pleaded (Venniri v Autodex Ltd [EAT/0436/07]).
(iv) Where the statutory disciplinary procedure has not been completed and the failure is wholly or mainly the employers an Industrial Tribunal shall increase any compensatory award by 10% and may raise the increase to 50%, if it considers it just and equitable to do so, unless there are special circumstances which make the uplift unjust or inequitable (Article 17(3) and (4) The Employment Rights (Northern Ireland) Order 2003).
APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES
8. (i) In light of the tribunal’s findings of fact it is clear that at all material times the claimant was an employee of the respondent.
(ii) The claimant was dismissed on 25 June 2009 when he received his P45 from his employer. The effective date of termination is therefore 25 June 2009.
(iii) As the claimant’s claim was received on 31 July 2009 the claim is within time.
(iv) As the respondent has not shown the reason for the dismissal or that it is one of the statutory grounds that can render a dismissal fair the dismissal is therefore unfair.
(v) Similarly as the respondent has not complied with the statutory dismissal procedure the dismissal is automatically unfair.
(vi) In making a compensatory award an automatic uplift is required unless there are special circumstances. There are no special circumstances before the tribunal and therefore the uplift is appropriate in this case.
(vii) The tribunal assesses the uplift at 10% as required by the Order.
(viii) The claimant’s net weekly pay is £219.23.
(ix) The tribunal is satisfied that the claimant has attempted to mitigate his loss. He has checked newspapers, and the Job Centre and phoned and called with businesses to inquire about employment possibilities. He has also applied for four jobs at a time when in the whole geographical area in which he lived, across all sectors of employment, there were only 36 jobs available. It is clear that the jobs’ prospects in the area are not good and that his efforts have been sufficient to satisfy the Social Security Agency.
(x) The claimant became available for work on 25 August 2009 when he recovered from his illness. The illness was not caused by the action of the employer and therefore no compensation can be payable for any period prior to 25 August 2009.
(xi) The tribunal is satisfied that a future loss of 26 weeks would be appropriate.
(xii) The compensation therefore payable to the claimant is set out below.
BASIC AWARD £
£219.23 x 6 (1.5 x 4) = 1,315.38
COMPENSATORY AWARD
From 25 August 2009 – 26 January 2010
£219.23 x 22 = 4,823.06
FUTURE LOSS
27 January 2010 – 28 July 2010
£219.23 x 26 = 5,699.98
Loss of Statutory Rights = 250.00
Total Compensation = 10,773.04
Uplift of award by 10% = £11,850.34
TOTAL COMPENSATION £13,165.72
9. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 26 January 2010, Belfast.
Date decision recorded in register and issued to parties: