Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1876/10
                    1877/10
                    2442/10
                    2443/10

CLAIMANTS:           1. Joseph Havlin
                                    2. Hugh Orderley

 RESPONDENT: Myles O’Reilly tla The Park Inn

Certificate of Correction

The summary of the decision at the beginning did not record in the totalling of compensation the award for redundancy payment made to each claim at paragraph 6

(15) of the tribunal’s decision.

To the first claimant’s compensation should be added £3,600.00 giving him a total
amount of £12,983.00.

To the second claimant’s compensation should be added £2,250.00 giving him a total

compensation of £25,854.00.

 

 

 

 

 

 

 

CHAIRMAN __________________________________

Date: ____________________________________

 

 

THE INDUSTRIAL TRIBUNALS

 

     CASE REFS:      1876/10

1877/10

2442/10

2443/10

 

 

 

CLAIMANTS:                       1.  Joseph Havlin

                                                2.  Hugh Orderley                          

 

 

RESPONDENT:                  Myles O’Reilly t/a The Park Inn

 

 

 

DECISION

The unanimous decision of the tribunal is that both claimants suffered automatically unfair dismissals and a breach of contract.  They are entitled to compensation as follows;

 

First claimant:            Unfair dismissal of                £ 6,183.00

                                    Notice Pay of                         £ 1,920.00

                                    Holiday Pay of                       £    480.00

                                    For no written particulars      £    800.00

                                    of employment

                                                                                     ________

 

                                    TOTAL                                    £  9,383.00

 

Second claimant:      Unfair dismissal of                £20,604.00

                                    Notice Pay of                         £  1,200.00

                                    Holiday Pay of                       £     800.00

                                    For no written particulars      £  1,000.00

                                    of employment

                                                                                     ________

 

                                    TOTAL                                    £23,604.00

 

                                   

Constitution of Tribunal:

Chairman:                            Mr Brian Greene

Members:                             Mrs Carmel Lewis

                                                Mr James Smyth

Appearances:

 

The claimants were represented by Mr Barrie McLatchie of the Belfast Unemployed Resource Centre.

 

The respondent was neither in attendance nor represented.

 

 

Sources of Evidence

 

1.         The tribunal heard evidence from both claimants.  The tribunal also had regard to the responses entered by the respondent to claims 1876/10 and 1877/10 and to four documents of four pages. 

 

Claim and the Defence

 

2.         The claimants claimed unfair dismissal, a redundancy payment, breach of contract by reason of not having been paid notice pay and holiday pay.  The respondent accepted that the claimants had been dismissed by reason of redundancy and asserted that they had received some notice pay.

 

The tribunal was satisfied that the respondent had been notified of today’s hearing.

 

The Issues

 

3.         (1)     Were the claimants unfairly dismissed?

 

            (2)     If they claimants were unfairly dismissed did the dismissal amount to an automatically unfair dismissal?

 

(3)          Are the claimants entitled to notice pay and if so to what amount?

 

(4)          Are the claimants entitled to holiday pay and if so to what amount?

 

(5)          If the claimants were unfairly dismissed what is the appropriate remedy?

 

(6)          Are the claimants entitled to an uplift in their compensation if their dismissals are deemed to have been automatically unfair. 

 

Findings of Fact

 

4.         (1)     The first claimant was employed by the respondent from 4 May 1997 until

                     9 May 2010 as a bar person. 

 

            (2)     About one year before dismissal the first claimant, at the request of the respondent, reduced his working hours from five to four days. 

 

            (3)     The first claimant’s net wage, after his hours had been reduced, was £160.00 per week.  The first claimant is unaware of what his gross pay was.  The tribunal assumes a figure of £200 per week as his gross pay. 

 

            (4)     The respondent employed both claimants and Siobhan Burns as full-time bar persons.  He also employed two part-time and two casual bar persons. 

 

            (5)     On 5 May 2010 the first claimant attended at the respondent’s premises at the respondent’s request.  He was given a letter in which he was told that his employment with the respondent was being terminated.  Prior to this discussion with the first claimant the respondent had not indicated to him that his job was at risk by reason of redundancy or sought to consult with him or discuss how the redundancy might be avoided or other steps that could be taken to avoid or reduce the impact of the redundancy.  Nor did he offer alternative employment or explain how the first claimant was selected for redundancy.

 

            (6)     At the respondent’s request the first claimant attended at the respondent’s premises on Saturday 8 May where he collected his wages.  He was given the number of the respondent’s accountant in order to deal with the first claimant’s queries about his P45 and other monies to which he was entitled.

 

            (7)     The second claimant was employed by the respondent from 1 August 2003 until 9 May 2010 as a bar manager. 

 

            (8)     One year before his dismissal on 9 May 2010, at the respondent’s request, he reduced his working hours from five to four and a half days per week.

 

            (9)     His net income on reduced hours was £200.00 per week.  The second claimant is unaware of what his gross pay was.  The tribunal assumes a figure of £250 for his gross weekly wage.

 

            (10)   On 4 May 2010, at the respondent’s request, the second claimant attended at the respondent’s business where he was given a letter indicating that his employment was being terminated.  The respondent also wrote on a piece of paper, “Department of Employment and Learning” and the name of his accountants, “McKeague & Morgan”, for information about monies owed to the second claimant.

 

            (11)   By arrangement the second claimant called to the respondent’s premises on the following Saturday 9 May, where he received his wages of £200.00.

 

            (12)   The respondent had not given to the second claimant any notice or warning of his redundancy nor discussed the redundancy situation with him nor methods by which the redundancy could be avoided or mitigated.  Nor did he offer alternative employment nor explain how the second claimant was selected for redundancy.

 

            (13)   Both claimants were paid by cash and the payment period was from Thursday to Thursday.

 

            (14)   Neither claimant had been provided with a written statement of the main terms and conditions of their employment. 

 

            (15)   Both claimants understood that they were entitled to four weeks holiday per year and were permitted to carry over holidays that were not taken. 

 

            (16)   By the time of the dismissal of both claimants neither had taken any holidays in 2010.  The first claimant had taken three weeks holiday in 2009 and sought to carry over one week’s holiday.  The second claimant had taken two weeks holiday in 2009 and sought to carry over two weeks holiday.

 

(17)     Both claimants did not accept that they had received any notice pay. 

 

(18)     The first claimant’s holiday leave entitlement of twelve days comprises four days carried over from 2009 and eight days accrued on a pro-rata basis in 2010.

 

(19)     The second claimant’s holiday entitlement of 18 days, comprises nine days carried over and nine accrued days on a pro-rata basis in 2010.

 

(20)     Both claimants sought to mitigate their loss.  The first claimant obtained other part-time work as a bar man on 27 September 2010 when his take home pay was £92.80 per week.  This then increased to £230.00 a week on average from 6 December 2010 when he became full-time with his new employer. 

 

(21)     The second claimant applied on a regular basis for other jobs unsuccessfully and complied with all the requirements imposed on him by the Social Security Agency in his pursuit of alternative employment.

 

(22)     The respondent continues to operate the premises as a bar.

 

The Law

 

5.         (1)     To establish a dismissal is not unfair an employer must establish the reason for the dismissal and that it is one of the statutory reasons that can render a dismissal not unfair (Article 130(1) and (2) The Employment Rights (Northern Ireland) Order 1996).

 

            (2)     If an employer satisfies both of the above requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130(4) The Employment Rights (Northern Ireland) Order 1996).

 

            (3)     An employee will be regarded as unfairly dismissed if the statutory dismissal procedure has not been completed and the non-completion is wholly or mainly attributable to the employer’s failure to comply with its requirements (Article 130A The Employment Rights (Northern Ireland) Order 1996).

 

            (4)     Where the statutory dismissal procedure has not been completed and the failure is wholly or mainly the employer’s, an industrial tribunal shall increase any award by 10% and may raise the increase to 50%, if it considers it just and equitable to do so, unless there are special circumstances which make the uplift unjust or inequitable (Article 17(3) and (4) The Employment Rights (Northern Ireland) Order 2003).

 

            (5)     An employer shall not make a deduction from the wages of an employee unless authorised to do so by agreement of the employee in writing or by operation of law (Article 45 The Employment Rights (Northern Ireland) Order 1996).

 

            (6)     Failure to pay an amount of wages properly due to an employee amounts to an unlawful deduction of wages (Article 45(3) The Employment Rights (Northern Ireland) Order 1996).

 

(7)          Wages for the purposes of an unlawful deduction from wages claim include holiday pay (Article 59(1) The Employment Rights (Northern Ireland) Order 1996).

 

(8)          An employee is entitled to one week’s notice for each week of continuous employment up to a maximum of 12 (Article 118 The Employment Rights (Northern Ireland) Order 1996).

 

(9)          An employee is entitled to be paid any sum due to him on the termination of his employment (Article 3 The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).

 

(10)     An employer shall make a redundancy payment to an employee if the employee is dismissed by the employer by reason of redundancy (Article 170 The Employment Rights (Northern Ireland) Order 1996).

 

(11)     The basic award in an unfair dismissal must be reduced by the amount of any redundancy payment (Article 156(4) The Employment Rights (Northern Ireland) Order 1996).

 

(12)     If a tribunal makes an award to an employee in respect of his claim before the tribunal and the employer, when the proceedings began, was in breach of his duty to provide a written statement of particulars of employment, the tribunal shall increase the award by a minimum of two weeks’ gross pay and if it considers it just and equitable by four weeks’ gross pay unless there are exceptional circumstances which would make an award or increase unjust or inequitable (Article 27(3), (4) and (5) The Employment (Northern Ireland) Order 2003).

 

Application of the Law and the Findings of Fact to the Issues

 

6.         (1)     The tribunal is satisfied that the respondent has shown the reason for the claimants’ dismissal (redundancy) and that that reason is one of the statutory reasons that can render a dismissal fair.

 

(2)          The statutory dismissal procedure was not completed at all. 

 

(3)          The non-completion was wholly or mainly attributable to the respondent’s failures.

 

(4)          Accordingly the respondent’s failure to complete the statutory dismissal procedures amounts to an automatic unfair dismissal under Article 130(A) of the Employment Rights (Northern Ireland) Order 1996.

 

(5)          In considering whether the claimants’ dismissal is unfair under Article 130 of the Employment Rights (Northern Ireland) Order 1996 the tribunal is persuaded that these dismissals were unfair.  In so concluding the tribunal was influenced by the following matters;-

 

          (a)     The respondent did not give either claimant any warning or notification of redundancy.

 

          (b)     The respondent did not discuss with the claimants the impending redundancy situation, nor methods to avoid or mitigate the redundancy.

 

          (c)     The respondent did not discuss nor indicate its method of selection of persons for redundancy given that not every bar person was made redundant. 

 

          (d)     The respondent did not discuss with the claimants suitable alternative employment.

 

(6)          In relation to the automatically unfair dismissal finding the tribunal considers that there should be an uplift of 50%.  In so concluding the tribunal was influenced by the fact that the failure by the respondent to implement the statutory dismissal procedure was absolute and there were not any special circumstances advanced in evidence to make the uplift unjust or inequitable.

 

(7)          The claimants are entitled to compensation for unfair dismissal as set out below.  In addition to the loss to the date of hearing the tribunal allows a future loss of 26 weeks for the second claimant.  In relation to the first claimant any loss ceased when he obtained full-time employment on 6 December 2010.

 

(8)          Neither party received the appropriate notice pay in this matter.  In so concluding the tribunal had regard to the following matter;-

 

(a)     The respondent suggests that some element of notice pay may have been paid although he accepts it was not in its entirety.

 

(b)     The claimants dispute that notice pay was made.

 

(c)          The weekly payment period ran from Thursday to Wednesday inclusive.

 

(d)          The claimants’ obtained an Order for Discovery directing the respondent to provide details of all notice pay paid to the claimants.  The respondent has not answered that Order for Discovery.  Accordingly that element of his claim in relation to defending the claim for notice pay is dismissed. 

 

(9)          The first claimant is entitled to notice pay of £1920.00. 

 

(10)     The second claimant is entitled to notice pay of £1200.00.

 

(11)     The first claimant is entitled to 12 days payment for untaken holidays which amounts to £480.00.

 

(12)     The second claimant is entitled to 18 days unpaid holidays which amounts to £800.00. 

 

(13)     The tribunal is satisfied that both claimants have mitigated their loss or attempted so to do in an appropriate fashion.    

 

(14)     Both claimants are entitled to redundancy payments of £3,600 (first claimant) and £2,250 (second claimant).  These payments must be deducted from any compensation for unfair dismissal.

 

(15)     The amount of the redundancy payments are £3,600 to the first claimant and £2,250 to the second.

 

(16)     As the respondent failed to provide both claimants with a written statement of particulars of their employment the tribunal awards the first claimant £800.00 and the second claimant £1000.00 being the maximum as the respondent has completely failed to provide the written particulars and has not advanced any explanation or reason for this failure.

 

 

First Claimant Joseph Havlin

 

BASIC AWARD

 

£200 X 18                                 =  £3,600

Redundancy Payment =  £3,600                                                00.00

 

COMPENSATORY AWARD

 

From 10 May 2010 to 26 September 2010

£160 x 20                                                          =  £3,200.00

          From 27 September to 6 December 2010

£67.20 x 10                                                      =   £  672.00              £3,872.00

Loss of statutory rights                                                                        £   250.00

                                                                                                                           £4,122.00

Uplift of 50%                                                                                         £2,061.00

Total Compensation                                                                =          £6,183.00

 

                     Prescribed period is 10 May 2010 to 26 September 2010

                     Prescribed amount is £6,183.00 - £3,200.00                      =          £2,983.00

 

 

Second Claimant Hugh Orderley

 

BASIC AWARD

 

£250 X 9                                   =  £2,250

Redundancy Payment =  £2,250                                                   00.00

 

 

 

 

COMPENSATORY AWARD

 

From 10 May 2010 to 24 February 2011

£200 x 41.43                                                    =  £ 8,286.00

         

                     FUTURE LOSS

 

From 25 February 2011 to 26 August 2011

£200 x 26                                                          =  £ 5,200.00             £13,486.00

Loss of statutory rights                                                                        £     250.00

                                                                                                                           £13,736.00

          Uplift of 50%                                                                                           £  6,868.00

Total Compensation                                                                =          £20,604.00

 

                     Prescribed period is from 10 May 2010 to 25 March 2011

Prescribed amount is £20,604.00 - £9,114.00                   =          £ 11,490.00

 

 

(17)     The tribunal does not make any Polkey reductions as it is not clear that the claimants would have been dismissed had proper procedures been applied.

 

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

 

(19)   Your attention is drawn to the notice below which forms part of the decision of the tribunal.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:  24 February 2011, Belfast                   

 

 

Date decision recorded in register and issued to parties: