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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Truesdale v H & T Transport [2010] NIIT 279_10IT (30 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/279_10IT.html
Cite as: [2010] NIIT 279_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 279/10
CLAIMANT: Simon Truesdale
RESPONDENT: H & T Transport
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The claimant’s award is £7,207.50.
Constitution of Tribunal:
Chairman: Mrs M Watson
Members: Mr J Devlin
Mr G Hunter
Appearances:
The claimant appeared and represented himself.
The respondent did not appear and was not represented. No response had been made to the claimant’s claim.
Findings of Fact
1.
The claimant was employed by the
respondent company as a van/lorry driver from
12 October 2008 until his summary dismissal by the respondent on 14 December
2009.
2. The claimant brought newspapers from Belfast to Dublin for distribution. He usually drove a van and was one of 10-15 drivers employed by the respondent.
3.
On Friday 11 December 2009, the
claimant parked and locked the van outside his home.
4.
Mr David Hamilton who is one of
the two Directors of the Respondent Company, telephoned the claimant at around
11.00 pm and asked him where the vehicle was. The claimant told Mr Hamilton
that it was parked outside his home. Mr Hamilton then informed the claimant
that the van was “buried into a car around your estate”.
5.
The claimant noted that the van
was not outside his house and eventually found it crashed into a car
approximately 70 yards from his home. The police and Mr Hamilton were in
attendance. The claimant gave the keys of the vehicle to one of the police
officers who then opened it. The handbrake was fully engaged.
6.
The claimant gave a statement to
the police office who told him that the vehicle had been properly secured and
that no further action was likely. Mr Hamilton took the keys of the vehicle.
7.
The claimant telephoned Mr
Hamilton on Sunday 13 December 2009 and asked what area he was to work. Mr
Hamilton told the claimant he was not working that night and that he was to
meet him at his home the next day at 4.00 pm.
8.
Mr Hamilton arrived at the house
at 4.20 pm accompanied by Erin Thomas, the other Director who asked the
claimant for his licence for insurance purposes.
9.
The claimant informed Mr Hamilton
that the van had been properly locked with the handbrake applied on the
previous Friday. Mr Hamilton said the claimant was a liability to the Company
and told him to “get out”.
10.
The claimant was not informed
that the Monday meeting was a disciplinary meeting or that he had a right to be
accompanied. He was not provided with any written notification of any
disciplinary offence or any right of appeal against his dismissal.
11.
The claimant had never been
provided with any contract of employment or any written terms and conditions of
his employment. He was provided with payslips for a limited period.
12.
During his employment, the
claimant had informed the respondent on two occasions of concerns he had with
the work van.
(i)
On one occasion, the claimant
told Mr Hamilton that his vehicle was overloaded but he was told to take it
out. During the run, the load moved and pushed the claimant forward causing
the airbag to inflate.
(ii) Shortly before his dismissal, the claimant had expressed concerns about the brakes on the van. On each occasion, the respondent took no action.
13.
On Friday 11 December, the
claimant had been paid his week’s wages. He did not receive any further
payment when he was dismissed. He believes he should have been paid notice
pay, holiday pay and a lying week. He was paid £280.00 per week gross, £240.00
per week net.
Relevant Legal Provisions
14.
The law relating to employment
matters is largely set out in the Employment Rights (Northern Ireland) Order
1996 (the ERO) (as amended).
15.
Employers are required by Article
33(2) to provide, not later than two months after the beginning of employment,
a statement of the particulars of that employment. It goes on to set out those
particulars which the statement must contain.
16.
Article 118 of the ERO provides
that an employer who terminates the contract of a worker who has been employed
for one month or more is entitled to one weeks notice if the employment has
been for less than two years.
17.
Article 126 provides that an
employer has the right not to be unfairly dismissed. Whether the dismissal is
unfair, is determined by the tribunal in accordance with Articles 130 and 130A.
The latter provision was incorporated following the Employment (Northern Ireland) Order 2003 which set out the procedural steps that employers are required
to follow when contemplating dismissal of an employee. Failure to comply with
these statutory dismissal and disciplinary procedures renders dismissals unfair
automatically.
18.
The compensation payable for
unfair dismissal is calculated in accordance with Articles 154, (the Basic Award)
and 157, (the Compensatory Award).
19.
Where a tribunal has made a finding
of automatic unfair dismissal under Article 130A, the amount of the Basic Award
shall be a minimum of four week’s pay.
20. Where the failure to follow the statutory Dispute Resolution Procedures is due to failure by the employer, a tribunal must consider increasing the award by 10% up to 50% where it considers it just and equitable in all the circumstances to do so. [Employment (Northern Ireland) Order 2003 at Article 17(3)].
Determination
21.
Applying the statutory
provisions, the tribunal determines the compensation payable by the respondent
to the claimant as follows:-
Basic Award
4 weeks @ £280.00 per week = £1,120.00 (A)
Compensatory Award
Income – Jobseekers Allowance = £ 67.50 per
week
Housing
Benefit = £ 57.50
per week
Total Benefit = £125.00
per week
Weekly income = £240.00
per week
Weekly Loss = £240.00-£125.00 = £115.00 per week
Period of Loss
Date of termination 21/12/09 – Hearing Date 01/06/10 = 23 weeks
Total loss = £115.00 x 23 = £2,645.00
Notice Pay = 1 week @ £240.00 = £ 240.00
Holiday Pay = 14 days accrued @ £40.00 per day £ 560.00
Lying Week = £240.00 £
240.00
Total Compensatory Loss £3,685.00
(B)
Total Award (A) +
(B) = £4,805.00
22. The tribunal determined that the respondent has
failed to meet any of the statutory obligations of an employer as detailed
above. The failure to comply with the statutory Dispute Resolution Procedures
was total. In those circumstances the tribunal determines that the
compensation payable should be increased by 50%; £2,408.50. The total
compensation payable is:-
£4,805.00
£2,402.50
£7,207.50
23. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 1 June 2010, Belfast
Date decision recorded in register and issued to parties: