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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cairns v Ian's Limited [2010] NIIT 1424_10IT (20 October 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/1424_10IT.html
Cite as: [2010] NIIT 1424_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1424/10
CLAIMANT: George Donning Cairns
RESPONDENT: Ian’s Limited
DECISION
The unanimous decision of the tribunal was that the claimant was dismissed by the respondent and that the dismissal was automatically unfair because the respondent had failed to comply with the requirements of the statutory dismissal procedure. Compensation of £11,085.01, calculated as set out in this decision is awarded in respect of that unfair dismissal. The tribunal also concludes that the claimant is owed £125.32 in respect of accrued holiday entitlement. The tribunal further concludes that the respondent failed to provide a written statement of particulars of employment and awards a penalty of £441.12 in that respect. That makes a total amount of £11,651.45.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Dr D Mercer
Mrs S Doran
Appearances:
The claimant was represented by Mr T Halton.
The respondent did not appear and had not entered a response.
Relevant Issues
1. The respondent did not enter a valid response and did not at any stage apply for an extension of time within which to do so. However, on the day before the hearing, he sought an adjournment and that adjournment was refused. A further e-mail was received from the respondent in the course of the tribunal hearing which stated:-
“In reference to my case which is due this morning at 10.00 am, Mr Jones feels very strongly that he needs to be able to attend this mornings hearing, and does realise that he needs to make his case in this matter. As you have been notified that due to illness Mr Jones is unable to make it and I have rang his Doctor to get medical evidence for your attention. At present he is in surgery so his secretary says he will be free shortly after 11.30 am and then I will forward it onto you.”
No explanation was furnished for the failure to enter a response and for the very late attempt at an intervention in this case. Furthermore the claimant gave evidence that he had seen the respondent on the previous day (Monday) giving a driving lesson in Newtownards. He was sitting in the passenger seat and a young driver was sitting in the driver’s seat. The tribunal concluded that there was no basis upon which it could further delay the determination of this matter.
2. The issues for the tribunal to determine were:-
(i) whether the claimant had been unfairly dismissed contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996;
(ii) whether there had been an unauthorised deduction from wages; and
(iii) whether the claimant was due holiday pay.
3. The claimant is a motor mechanic. The respondent company operates a driving school and has a fleet of vehicles. The claimant commenced employment with the respondent company in June 2008. The claimant was unable to provide a precise date but, on the basis of the pay slips provided in evidence, the tribunal will regard the commencement date of the claimant’s employment as 20 June 2008.
4. The claimant was initially employed to service the respondent’s fleet of cars which were used for driver instruction. Later, his duties included retail car servicing to the general public.
5. There was no written contract and, despite requests, the claimant was not provided with any written statement of terms and conditions. The claimant was initially given an oral assurance that he would be employed on the same terms and conditions that he had enjoyed with a previous employer.
6. His hourly rate was £9.19 and initially he worked for 39 hours per week with no overtime.
7. The respondent only provided wages slips on an intermittent basis.
8. On 15 January 2010, the claimant was put on a three day week. He did not, expressly, agree to that variation in his contractual terms but he did continue working those hours without significant complaint until his dismissal.
9. The claimant was told on or about 12 April 2010 that his employment was to be terminated. He was sent home at 2.00 pm on 13 April 2010 and again at 8.30 am on 14 April 2010. On 19 April he was sent home and told not to return to work. Given his length of service, he was entitled to one week’s statutory notice from 12 April but was paid up to 21 April 2010. The effective date of termination was therefore 21 April 2010.
Relevant Law
10. Article 130(A) of the Employment Rights (Northern Ireland) Order 1996 provides:-
“(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 1 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.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”
11. Article 17 of the Employment (Northern Ireland) Order 2003 provides:-
“(3) If, in the case of proceedings to which this Article applies, it appears to the Industrial Tribunal that -
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings were begun, and
(c) the non-completion of the statutory procedures was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,
it shall, subject to paragraph (4), 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.
(4) The duty under paragraph (2) or (3) to make a reduction or increase at 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”
12. The standard dismissal procedure set out in full in Schedule One to 2003 Order, provides for a three stage procedure. The first stage is a written statement of the circumstances which lead the employer to contemplate dismissing the employee. That written statement must be sent to the employee together with an invitation to attend a meeting to discuss the matter.
The second stage is the meeting at which the employer informs the employee of the decision and notifies the employee of his/her right to appeal against the decision. The third stage is the appeal and notification via the employer to the employee of the decision on appeal.
13. Under Article 27 of the 2003 Order the tribunal has power to impose a financial penalty in certain circumstances. Firstly, the proceedings brought by the claimant must fall within the jurisdictions listed in Schedule 4 of the 2003 Order. That is the case in the present claim. Article 27(3) of the 2003 Order provides that where an Industrial Tribunal makes an award to the employee and where the employer was, when the proceedings were begun, in breach of its duty to provide a written statement of particulars of employment, the tribunal shall, unless it would be unjust or inequitable to do so, increase the award by a minimum amount of two weeks pay or by a higher amount of four weeks pay.
DECISION
Unfair Dismissal
14. The claimant’s uncontested evidence was clear, consistent and credible. The tribunal accepts that the respondent dismissed the claimant without undertaking any of the steps required with the statutory dismissal procedure. There was no written statement, no interview and no appeal.
15. The dismissal was therefore automatically unfair. Without evidence from the respondent it is difficult to fix an appropriate figure for the statutory uplift. However the tribunal, on the evidence before it fixes the appropriate uplift at 10 per cent.
16. The tribunal concludes, on the balance of probabilities, that the claimant could reasonably be expected to find alternative employment within one year of the date of dismissal and the compensatory award is calculated accordingly.
Basic Award
17. 1.5 x £220.56 = £330.84.
Compensatory Award
18. 52 x £188.01 = £9,776.52.
Statutory Uplift
19. 10% £977.65.
Total Unfair Dismissal Compensation
20. £11,085.01.
Holiday Pay
21. The (oral) contractual leave year was 1 January to 31 December each year and the annual leave allowance, appropriate to a five day week, was 30 days per year. The claimant had accepted, by conduct, the variation of that contract to a three day week and, following that variation the annual leave allowance would have been varied downwards, pro rata, to 18 days per annum from 15 January 2010.
22. The claimant left employment on 21 April 2010. He was therefore employed for, in total, 111 days of the relevant leave year. He had taken leave on 1 January, 17 March, 5 April and 6 April.
23. The rate of accrual for annual leave was, initially, up to the date of variation:-
14/365 x 30 = 1.2 days.
Following the variation of the contract the rate of accrual was:-
97/365 x 18 = 4.8 days.
Total: 6 days annual leave entitlement.
24. Four days annual leave have been taken and therefore the claimant had an accrued annual leave entitlement of two days at the date of the dismissal.
25. The daily net pay was £62.66 and the claimant is therefore entitled to the payment of two days net holiday pay, ie, £125.32.
Unauthorised Deductions for Pay
26. The claimant gave evidence that there had been a series of small deductions and one large deduction up to 24 October 2008 and further claimed in respect of the reduction in wages following the three day week which had commenced on 15 January 2010.
27. In relation to most of these matters, a time limit issue arises. Those claims were out of time and there are no grounds upon which the relevant time limit (three months) could be extended.
28. Furthermore the written grievances in relation to unauthorised deduction from earnings, which were sent to the respondent on 19 April 2010 and 30 April 2010 did not contain sufficient, or any, detail to enable the respondent to appreciate the nature of the grievance and to, potentially address the issue. There was a separate heading in the grievances in relation to the imposition of short time working without notice.
29. The tribunal has concluded that the claimant had effectively accepted the variation of his contract to allow for short time working and therefore no claim for unauthorised deductions can lie in this respect.
30. The claim for unauthorised deductions from earnings is therefore dismissed.
Written Particulars of Employment
31. The tribunal is satisfied that at the time these proceedings were commenced, the respondent was in breach of his duty to provide a written statement of particulars of employment, despite requests by the claimant. The tribunal therefore imposes a penalty of two weeks pay, ie, for £441.12 in this respect under Article 27 of the 2003 Order.
32. The claimant is in receipt of Jobseekers Allowance and for the purposes of a Recoupment Notice:-
(i) The monetary award is £11,651.45.
(ii) The prescribed element is £4,756.65.
(iii) The relevant period for the prescribed element is 21 April 2010 to 22 September 2010. The monetary award exceeds the prescribed element by £6,894.80.
33. Your attention is drawn to the notice below which forms part of the decision of the tribunal.
34. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21 September 2010, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 1424/10
CLAIMANT: George Donning Cairns
RESPONDENT: Ian’s Limited
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 11651.45
(b) Prescribed element 4,756.65
(c) Period to which (b) relates: 21 April 2010-22 September
2010
(d) Excess of (a) over (b) 6,894.80
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 Social Development 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
Social Development 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