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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ferguson v Arnaldo Morelli t/a Morelli's ... [2010] NIIT 159_10IT (22 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/159_10IT.html
Cite as: [2010] NIIT 159_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 159/10
CLAIMANT: Robert Michael Ferguson
RESPONDENT: Arnaldo Morelli t/a Morelli’s Ices
DECISION
It is the unanimous decision of the tribunal that the claimant was unfairly dismissed. The respondent shall pay the claimant £8,011.98 compensation.
Constitution of Tribunal:
Chairman: Ms M Bell
Members: Mr H McConnell
Appearances:
The claimant appeared and represented himself.
The respondent did not appear and was not represented.
1. The claimant in his claim complained that he had been unfairly dismissed by the respondent.
2. No response has been entered by the respondent.
3. The claimant consented at the outset of the hearing for the proceedings to be heard and determined by a tribunal comprising a chairman and one other member in accordance with Regulation 5 of The Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
4. The claimant confirmed at hearing that the correct name of the respondent is Arnaldo Morelli t/a Morelli’s Ices and the title of the respondent is accordingly amended from ‘Arnaldo Morelli – Morellis Ice Cream’ to ‘Arnaldo Morelli t/a Morelli’s Ices’.
ISSUES FOR TRIBUNAL
5. The issues for the tribunal were :-
· Was the claimant dismissed? If so,
· Was the claimant unfairly dismissed?
EVIDENCE
6. The tribunal considered the claim, documentation handed in by the claimant and heard oral evidence from the claimant.
FINDINGS OF FACT
7. The claimant, born on 5 October 1955 was employed by the respondent as a van driver from 4 July 2006 until 30 October 2009. No written statement of particulars of employment was given to the claimant by the respondent.
8. The claimant’s hours of work varied from week to week. Taken over the last twelve weeks of the claimant’s employment his average weekly remuneration was £237.96 gross, being £199.51 net.
9. In the week up to Friday 30 October 2009 the claimant had been feeling unwell with a heavy cold.
10. On Friday 30 October 2009 the claimant went into work at 7.00 a.m. and explained to the respondent that he would not be able to work that day because he was unwell and that he was going to go home to bed. The respondent however informed the claimant that he needed him to work that day and if he went home not to come back to work on Monday morning. The claimant replied that he had no option but to go because he was unwell and left the company premises.
11. Prior to this the claimant had only had one period of absence from work with the respondent for approximately one week due to a bad back.
12. From his conversation with the respondent on 30 October 2009 the claimant understood that he had been sacked. The claimant however tried to contact the respondent by telephone on Tuesday 3 November 2009, the next day on which he had been due to work, without success.
13. At the end of November 2009 the claimant sought outstanding pay and his P45 from the respondent, via a work colleague, and was informed that he would receive whatever he was due.
14. On 14 November 2009 the claimant received a letter from the respondent enclosing payslips which had been outstanding since April 2009, a statement showing the amount of pay that the claimant was due from April 2009 as per the pay slips, the actual amounts he had been paid and a payment of £93.25 in respect of the difference between these figures. The claimant also received a P45.
15. On 14 November 2009 the claimant posted by recoded delivery a letter dated 11 November 2009 to the respondent seeking the reasons why his contract of employment was brought to an end and the reasons behind this decision and requesting an appeal if he had been dismissed.
16. No response was received by the claimant from the respondent and so the claimant wrote again to the respondent by letter of 13 January 2010, posted by recorded delivery on 14 January 2010, requesting an urgent response to his previous letter. No response was forthcoming.
17. During his employment with the respondent the claimant also held a part time job as a bar man, this job is continuing. The claimant has not obtained any additional work either in relation to his part time employment or otherwise since termination of his employment.
18. The claimant in his claim sought an Order for re-instatement and compensation by way of remedy but at hearing confirmed that he wished to seek an Order for compensation only.
THE LAW
Statutory Minimum Procedures and Unfair Dismissal
19. 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 applicable, by an employer contemplating a dismissal. The standard procedure consists of three steps as follows:
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Step 1: statement of grounds for action and invitation to meeting
Step 2: meeting
(a) the employer has informed the employee what the
basis was for including in the statement under paragraph 1(1) the ground or
grounds given in it, and (3)
The employee must take all reasonable steps to attend the meeting. Step 3: appeal
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20. By virtue of Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.
21. Under Article 127 of the 1996 Order an employee is dismissed by his employer if the contract under which he is employed is terminated by the employer whether with or without notice.
22. Article 130 of the 1996 Order 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 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,
(b) 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.
23. Where an industrial tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the Orders it may make by way of remedy are set out at Article 146 of the 1996 Order and include reinstatement, or re-engagement, and otherwise compensation. How compensation is to be calculated is set out at Articles 152 to 161.
24. There is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which includes Article 145 of the 1996 Order (Unfair Dismissal)] by an employee where it appears to the industrial tribunal that a 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, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% 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%.
APPLICATION OF LAW TO THE FACTS FOUND
25.
The tribunal is satisfied on the
basis of the claimant’s undisputed evidence that the claimant’s employment was
terminated by the respondent on
30 October 2009 and despite attempts by the claimant to clarify the reason why
he was dismissed and to seek an appeal of the decision, no response was
forthcoming from the respondent.
26. The tribunal is satisfied that the standard procedure of the statutory dismissal and disciplinary procedures was applicable to the claimant’s dismissal but was not complied with or completed at the failure of the respondent despite the claimant’s request for an appeal of the decision to dismiss him. The tribunal finds that the claimant’s dismissal was automatically unfair under Article 130A(1) of the 1996 Order the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure by the respondent to comply with its requirements. The tribunal is also satisfied in the alternative that the claimant’s dismissal was unfair under Article 130 of the 1996 Order, the respondent not having shown a potentially fair reason under the Order such as to justify the dismissal.
27. The claimant sought, by way of remedy, compensation only. The tribunal orders the respondent to pay a basic award for unfair dismissal and compensation, as set out below. The tribunal furthermore considers that it is just and equitable in all the circumstances of this case to increase the compensatory award for unfair dismissal by 15% under Article 17 of the 2003 Order in light of the respondent’s failure to comply with the statutory dispute resolution procedures, in particular by reason of the respondent’s failure to respond to the claimant’s request for an appeal.
28. The tribunal accordingly orders the respondent to pay the claimant compensation as follows:-
Basic Award
Calculated in accordance with Article 153.
3 years continuous employment x 1.5 x £237.96 = £ 1,070.82
Compensatory Award
Loss of Earnings
Effective date of termination 30 October 2009 to the date of hearing, that is say,
29 weeks @ £199.51 = £5,785.79
Loss of statutory rights £ 250.00
Uplift under Article 17
Total compensatory award before uplift
£5,785.79 + £250.00 = £6,035.79
15% uplift = £ 905.37
Total compensatory award = £6,941.16
CONCLUSION
29. The tribunal finds that the claimant was unfairly dismissed by the respondent under Article 130A (1) of the 1996 Order. The respondent shall pay the claimant the following compensation:-
Basic Award £1,070.82
Compensatory Award £6,941.16
TOTAL £8,011.98
30. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 May 2010, Belfast.
Date decision recorded in register and issued to parties: