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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Makarovas v McArdle Marketing Ltd [2010] NIIT 581_10IT (02 November 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/581_10IT.html
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THE INDUSTRIAL TRIBUNALS
Case Ref: 581/10
Claimant : Vitalijus Makarovas
Respondent: McArdle Marketing Ltd
DECISION ON A REVIEW
The decision of the Tribunal is that the decision which issued on the 3 September 2010 is varied on review and the claimant is awarded the substituted sum of £968.60 in respect of his basic award and the substituted sum of £4,245.94 in respect of the total amount awarded.
Reasons for the Tribunal's decision
1. The Tribunal issued its decision (“the decision”) on 3 September 2010.
2. It subsequently came to the attention of the Tribunal that the calculation of the basic award was flawed in that it failed to take into account the provisions of Article 154 1A of the Employment Rights (Northern Ireland ) Order 1996 (“the Order”).
3. Article 154 1A of the Order provides:-
(1A) Where -
(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),
(b) an award of compensation falls to be made under Article 146(4), and
(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,
the industrial tribunal shall, subject to paragraph
(1B), increase the award under Article 152(1)(a) to the amount of four weeks'
pay.
(1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.
4. The Tribunal notified both parties that it proposed to review the decision in accordance with Rule 34 (5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“ the Rules of Procedure”) in circumstances where that notification complied with Rule 36 (2) of the Rules of Procedure which provides:-.
(2) Where no application has been made by a party and the decision is being reviewed on the initiative of the tribunal or chairman, the review must be carried out by the same tribunal or chairman who made the original decision and -
(a) a notice must be sent to
each of the parties explaining in summary the grounds upon which it is proposed
to review the decision and giving them an opportunity to give reasons why there
should be no review; and
(b) such notice must be sent before the expiry of 14 days from the date on which the original decision was sent to the parties.
5. No reasons have been given by either party as to why there should be no review nor has any objection been received from either party.
6. The Tribunal has considered the likely prejudice to the respondent in reviewing its decision and has decided that the respondent is not prejudiced. Further and in the alternative the Tribunal find that even if there were any prejudice to the respondent, any such prejudice is outweighed by the prejudice that would be caused to the claimant by a failure to award him an increased sum to which he is entitled.
7. The Tribunal has had regard to the provisions of Article 154 (1B) of the Order (see paragraph 3 above) and find no evidence that an award under Article 154 (1A) of the Order would result in an injustice to the respondent.
8. For reasons given above the decision is varied as follows:-
(i) At paragraph 35 the reference to the amount of the basic award is varied and the sum of £968.60 (£242.15 x4) is awarded.
(ii) At paragraph 36 the reference to the total amount of the basic award is varied and the amount of £968.60 is substituted.
(iii) At paragraph 38 the amount of the basic award following the 20% reduction is varied and the sum of £774.88 (£968.60 - £193.72) is substituted.
(iv) At paragraph 48 the amount of the total award is varied and the sum of £4245.94 is substituted.
9. This varied decision is subject to recoupment in accordance with the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 and the Recoupment Notice attached to the decision is replaced by the attached Recoupment Notice.
10. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date decision recorded in register and issued to the parties:
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 |
4,245.94 |
|
(b) Prescribed element |
3,471.06 |
|
(c) Period to which (b) relates: |
23/12/09 -29/04/2010 |
|
(d) Excess of (a) over (b) |
774.88 |
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 Health and Social Services 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 Health and Social Services 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.