Industrial Tribunals Northern Ireland Decisions

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  06124/09

 

 

CLAIMANT:                      Johnathan Matthew Duddy

 

 

RESPONDENT:                Security Guard Co Solutions NI Ltd

 

 

DECISION

The decision of the Tribunal is that the claimant was unfairly dismissed by the respondent and the Tribunal orders the respondent to pay the claimant £19,900 compensation.

 

 

Constitution of Tribunal:

Chairman                                   Ms Sheils

(Sitting Alone):      

 

Appearances:

The claimant appeared in person and represented himself.

The respondent did not appear and was not represented.

 

 

The Claim and the Response

 

 1.      The claimant lodged a claim form on 2 June 2009 in which he indicated that his claim was in relation to his dismissal and outstanding payment in lieu of notice. 

 

 2.      The respondent did not present a response. 

 

 

 

 

 

 

 

The Hearing

 

 3.      As the respondent did not present a response nor appear at the hearing the Tribunal considered the Industrial Tribunal (Constitution and Rules of Procedure) Regulation 2005 and in particular Rule 27(5) this provides that:-

 

                    If a party fails to attend or to be represented (for the purposes of conducting the parties case at the hearing under Rule 26) at the time and place fixed for such hearing the Tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.  Paragraph (6) of the same Rule goes on to state that –

 

                              “If a Tribunal wishes to dismiss or dispose of proceedings in the circumstances described at Paragraph 5 it shall first consider any information in its possession which has been made available to it by the parties”.

 

 4.      The Tribunal considered the Office file and heard from the claimant in relation to this point. It was clear that the respondent had not presented a response and there was no correspondence or evidence on the file of contact between the respondent and the Office. 

 

 5.      The claimant stated that he had had no contact with the respondent himself nor had he had a reply to his grievance letter dated 6 April 2009 accordingly, in these circumstances, the Tribunal decided to dispose of the case.

 

Facts

 

 6.      The claimant was employed by the respondent on 1 May 2007 as a security guard.  He was paid £220 per week gross and £180 per week nett and worked a 40 hour week. The claimant stated that he had been told that he had to give four weeks’ notice if he ever wanted to leave the company.

 

7.              On 27 March 2009 the claimant was contacted by one of his colleagues and was told not to report to work the following day.  This colleague advised the claimant that the respondent company’s contract with the site had ended.  

 

8.              The claimant went to the site where he had worked for the respondent company but was unable to find any trace of the respondent.

 

9.              The claimant sought advice from the Citizen’ Advice Bureau who assisted him firstly with draft correspondence and thereafter with help to complete his claim form.

 

10.           The claimant wrote to the respondent company on 6 April asking them to clarify his status with them. In this letter the claimant noted that he had not received a contract of employment or any written terms and conditions of employment, that on 27 March 2009 he had been advised not to turn up for work on the weekend of the 28/29 March 2009 and that he had tried to contact the respondent on a number of occasions but had been unsuccessful. In this letter the claimant also noted to the respondent the fact that they had not followed the statutory procedures for either his dismissal or his redundancy. The claimant received no reply to this letter.

 

11.           The claimant wrote again to the respondent on 29 April 2009 indicating to them that he was raising a grievance and again asked them to confirm whether he continued to be employed by them, had been dismissed by them or had been made redundant.  The claimant went on to request either his P45 or P60 and advised the respondent that he believed the respondent had failed to follow the statutory procedure for dismissal/redundancy, that he expected a response within 14 days or that he would be forced thereafter to proceed to an Industrial Tribunal.  The claimant received no reply to this correspondence either.

 

12.           The claimant lodged his claim on 8 June 2009. The respondent did not present a response.

 

13.           The claimant claimed Jobseekers’ Allowance from 22 September 2009 until 23 January 2010, at which point his partner obtained employment.

 

The Law

 

14.    Article 126 of the Employment (Northern Ireland) Order 1996 provides an employee     with the right not to be unfairly dismissed by his employer.

 

           Article 130 states that a dismissal may be fair if the dismissal is for a reason stated in this Article. In this case the claimant accepts that he was made redundant, which is a potentially fair reason. The fairness of a dismissal is to be assessed by reference to Article 130 and in particular paragraph (4), which states

 

          “where the employer has fulfilled the requirement of paragraph (1), the determination of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a)  Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b)   shall be determined in accordance with equity and the substantial merits of the case.” 

. 

Article 130A provides that the dismissal and disciplinary procedures is not completed and the failure to complete it is the employer’s then an employee will be considered to have been unfairly dismissed.  At Article 146 of the same Order it states

 

(1A) Where-

 

(a)                          an employee is regarded as unfairly dismissed by virtue of Article 130A…and

 

(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),…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.

 

Paragraph (1B) states

 

           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.

 

           Further Article 17 of The Employment (Northern Ireland) Order 2003, at paragraph (3) states that where it appears to the industrial tribunal that-

 

(a)                              the claim to which the proceedings relate concern 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 procedure 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 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.

 

           Paragraph (4) states

 

The duty under paragraph (2) or (3) to make a reduction or increase of 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.       

         

The Tribunal’s Conclusions

 

15.     The Tribunal accepts that the claimant was dismissed by reason of redundancy and    that his dismissal in the circumstances as described by the claimant was unfair, in that the claimant was given no prior warning, no consultation no notice and no payment in lieu.

 

The Tribunal also found that the respondent had failed to comply with the statutory dismissal procedures. The Tribunal took account of the fact that the respondent did not contact the claimant directly and had subsequently failed to respond to the claimant’s correspondence. The Tribunal had no information on which to base a decision that to increase the claimant’s award would result in injustice to the respondent.     

 

 

 

 

Notice pay

 

£180 x 1 = £180

 

 

Compensation

 

16.  Compensation is provided for at Article 152 of the Order and includes two components, a basic award and a compensatory award.

 

          Basic Award

 

          As the claimant worked for the respondent from May 1 2007 until March 25 2009 the  Tribunal found that the respondents owed the claimant £220 x  1 = £220 as the basic award. However as this was less than the statutory minimum of four weeks basic as per Article 130A of the Order the Tribunal increased this amount to £220 x 4 = £880.

 

 

    Compensatory Award

 

The Tribunal concluded that the claimant’s compensatory award should be calculated thus;

 

    £180 x 40 (number of weeks from date of dismissal to hearing) representing the claimant’s actual loss = £7,200

 

Future loss at £180 x 26 = £4,680

 

Loss of statutory rights =   £500

 

Total compensatory award = £12,560, increased by 50 per cent = £18,840

 

Total Award = £880 + £18,840 +£180 = £19,900

 

The Tribunal orders the Respondent to pay the claimant £19,900 compensation.

 

 

Recoupment

 

17.    This is a relevant decision for the purposes of recoupment.

 

Recoupment of benefit received by the claimant.

 

The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case.  Rule 4 (3) of these Regulations require the tribunal to set out

 

(a)      the monetary award;

 

(b)      the amount of the prescribed element, if any;

 

(c)      the dates of the period to which the prescribed element is attributable; and

 

(d)      the amount if any by which the monetary award exceeds the prescribed element.

 

          For the purpose of these proceedings the monetary award is £19,900.

 

          The prescribed element is that amount of the monetary award which represents in this case compensation for loss of earnings between 22 September 2009 and the date of the hearing being 15 weeks the last date on which the claimant received Jobseekers’ Allowance.  The Tribunal finds that the amount of the prescribed element is £600 attributable to that period.

 

          Accordingly the amount by which the monetary award exceeds the prescribed element in this case is £19,900 less £600 = £19,300.

 

18.     The attached Recoupment Notice forms part of the decision of the Tribunal.

 

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

 

 

 

 

 

 

 

                   

Chairman:

 

 

Date and place of hearing:         7 January 2010, Belfast.

 

 

Date decision recorded in register and issued to parties: