Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 1768_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1768/10

CLAIMANT: Lee Rodden

RESPONDENT: Time Express Limited (In Liquidation)

DECISION

The unanimous decision of the tribunal is as follows:-

(i) the claimant was unfairly (constructively) dismissed by the respondent company. It is ordered that the respondent company do pay to him the sum of £14,597.20 by way of compensation; and

(ii) the claimant’s claim that he was discriminated against by reason of his status as a part-time worker is dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Kinnear

Mr R Hanna

Appearances:

The claimant appeared in person and was not represented.

The respondent did not appear and was not represented.

1.	(i)	The claimant alleged that he had been constructively dismissed, and discriminated against on the ground that he was a part-time worker.

	(ii)	We are satisfied from the documentary evidence before us that the respondent company is in voluntary liquidation.

	(iii)	By letter dated 4 August 2010, the liquidator informed the Office of the Tribunals that he would not be attending, or be represented at, the hearing of this claim.

2. We are satisfied from the evidence of the claimant that his claim of constructive dismissal is well-founded. He worked for the respondent company from 6 January 2006 until 3 June 2010 as a driver. He worked on a part-time basis, driving one trip to the mainland each week. He left Northern Ireland each week at 10.00 am on a Thursday, returning to the province on Saturday mornings. His work was based around providing childcare to the family. (His wife worked full-time.)

3.

(i)

The respondent company:-

(a) unilaterally changed his working patterns. He continued to work under protest, having been told that if he did not agree to these new working patterns he would be dismissed;

(b) failed to deal adequately or promptly with his grievances;

(c) pressurised him to drive in excess of the number of hours for which he could lawfully drive, ie in breach the tachograph Regulations.

	(ii)	We are satisfied that each of these on its own constitutes a fundamental breach of his contract of employment. If we are wrong in this, we have no hesitation in finding that that is their cumulative effect.

	(iii)	The claimant accepted this repudiation of his contract of employment and resigned. There is no evidence that he waived any breach.

	(iv)	We dismiss his claim of discrimination on the ground of his part-time status. The evidence in respect of any such claim is weak, and there is no material before us from which we can draw any inference of discrimination on that ground.

4.	(i)	The claimant earned £170 (gross) per week. His net weekly earnings were £159.00 per week. He was aged 38 at the time of dismissal and had four years’ complete service.

	(ii)	We are satisfied that he has taken all reasonable steps to mitigate his losses. He has applied for 20 – 25 jobs since leaving his employment, and has not confined himself to driving jobs. For example, he has applied for a job as a store man, and as a manager (he has previous managerial experience). The employment outlook in Coleraine appears increasingly bleak, with many recent business closures. While inevitably speculative, we consider that he will remain unemployed for 18 months (78 weeks).

	(iii)	He received Jobseeker’s Allowance of £63.00 per week from 3 June 2010 – 11 August 2010. He is not currently in receipt of benefit.

	(iv)	The statutory grievance procedure was invoked by the claimant in this case, and that procedure was not completed because of default by the employer. However, we accept that the respondent company was in serious financial difficulties, and take this into account when adjusting the compensatory award. We consider that the minimum uplift of 10% is appropriate.

5. We now proceed to assess compensation as follows, taking into account the matters set out at Paragraph 4. above:-

(i) Basic award

The basic award if £170.00 x 4 = £ 680.00

(ii) Compensatory award

(a) Loss of earnings –

£159.00 (net week wage) x 78 weeks = £12,402.00

(b) Loss of statutory rights = £ 250.00

(c) Adjustment of 10% to compensatory

award because of respondent company’s

failure to complete statutory grievance

procedure = £ 1,265.20

Total compensation £14,597.20

6. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply to this decision. The tribunal announced its decision in respect of the award of compensation to the parties at the hearing.

7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 9 November 2010, Belfast

Date decision recorded in register and issued to parties:

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