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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Slyk v Paul Rogan, t/a 4UR Phone [2011] NIIT 00215_11IT (26 August 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/215_11IT.html
Cite as: [2011] NIIT 215_11IT, [2011] NIIT 00215_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 215/11
CLAIMANT: Andrzej Slyk
RESPONDENT: Paul Rogan, t/a 4UR Phone
DECISION (REMEDIES)
The unanimous decision of the tribunal is that it is ordered that the respondent shall pay to the claimant the sum of £22,803. That sum consists of £20,745 in respect of unfair dismissal and £2,058 in respect of holiday pay.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mrs T Hughes
Mr J Welsh
Appearances:
The claimant was represented by Mr P Taylor, Barrister-at-Law, instructed by McLaughlin and Co. Solicitors.
The respondent was not present or represented.
REASONS
1. The claimant was employed by the respondent, Paul Rogan, “t/a 4UR Phone” from January 2009 until 6 October 2010. On the latter date, he was unfairly dismissed by the respondent.
2. In these proceedings, the claimant makes claims in respect of unfair dismissal and in respect of holiday pay.
3. The respondent did not present any response in these proceedings. Accordingly, a default judgment was issued on 3 March 2011, which decided that the respondent had unfairly dismissed the claimant in contravention of Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) and that, in the context of the claimant’s holiday pay claim, the respondent had breached the claimant’s contract of employment and/or had failed to comply with the claimant’s entitlements under the Working Time Regulations.
4. The purpose of the present hearing was to determine the remedies (the amount of compensation) to which the claimant had become entitled pursuant to the default judgment.
5.
The claimant was born in 1984. While
in the employment of the respondent, his gross pay per week was £240 and his
net pay per week was £210. He got Job Seeker’s Allowance until 12 December 2010.
He went back to Poland on
12 December 2010. He got a job in Poland on 23 March 2011, and he still has
that job. He earns £240 per month in his Polish job.
6. During the entire period of his employment with the respondent, the claimant was never provided with particulars of employment.
7. The claimant was dismissed without the even the most rudimentary of disciplinary processes.
8. The claimant was never paid holiday pay, or allowed paid holidays, at any time during his employment with the respondent.
9. We announced our decision orally, at the end of the remedies hearing. At the same time, we gave oral reasons for our decision. However, we told the claimant’s representative that, if any mistakes in the amounts had been made in respect of the amounts which had been calculated at during the course of the remedies hearing, we would correct those mistakes in the written version. Some mistakes were made. They are now corrected.
10. The claimant is entitled to unfair dismissal compensation. This is made up of a basic award of £960 and a compensatory award. The claimant is entitled to a basic award of four weeks gross pay, because the dismissal is automatically unfair pursuant to Article 130A of the 1996 Order (See Article 154 (1A) of the 1996 Order).
11. The claimant’s compensatory award is made up of the following elements:
(1) £8,280 in respect of loss to date.
(2) £4,020 in respect of future loss. (We allowed a period of six months in respect of future loss).
(3) £250 in respect of loss of statutory rights.
The sum of those amounts is £12,550.
12. On behalf of the claimant, Mr Taylor asked us to allow an uplift in the amount of the compensatory award, pursuant to Article 17(2) of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), and accordingly we have uplifted the latter amount (£12,550) by 50 per cent.
13. Accordingly, prior to the addition of Article 27 supplement (see below), the claimant’s compensatory award amounts to £18,825.
14. Article 27 of the 2003 Order applies to unfair dismissal proceedings. The effect of paragraph (3) of Article 27 can be summarised as follows. If, in proceedings for unfair dismissal, an industrial tribunal makes an award to an employee in respect of unfair dismissal, and when the proceedings were begun, the employer was in breach of his duty to the employee under Article 33(1) of the 1996 Order (in relation to the provision of particulars) the tribunal should, as a general rule, make an award of “the minimum amount” and it may (if it considers it to be just and equitable in all the circumstances to do so) award “the higher amount” (which equates to four weeks pay). That general rule does not apply if there are exceptional circumstances which would make an Article 27 increase unjust and inequitable.
15. First, we know of no exceptional circumstances, in this case, which would make an Article 27 award unjust or inequitable. Secondly, the respondent knew, or ought to have known, that the claimant was entitled to receive written particulars of employment. Because the respondent has failed to present any response, he has been barred from participating in these proceedings; and, in any event, he has not sought to participate in these proceedings. Because of that non-participation, we have not had the benefit of receiving representations by or on behalf of the respondent on the Article 27 issue. We have decided, in the circumstances of this case, that it is appropriate to award “the higher amount” pursuant to Article 27. The higher amount equates to four weeks gross pay. One week’s gross pay is £240. Accordingly, four weeks gross pay amounts to £960. Accordingly, the claimant is entitled to a compensatory award which is made up of the sum specified at paragraph 13 above plus the £960 which we have awarded pursuant to Article 27 of the 2003 Order.
16. Accordingly, the claimant’s compensatory award, in respect of unfair dismissal amounts to £19,785.
17. £20,745 is the sum of that compensatory award and of the basic award of £960 (See paragraph 10 above).
18. Accordingly, the award in respect of unfair dismissal is £20,745.
19. The Recoupment Regulations apply to that unfair dismissal award. The prescribed period was the period from 6 October 2010 until 12 August 2011. The prescribed amount was £8,280. The amount by which the amount of the unfair dismissal award exceeded the prescribed amount is £12,465.
20. We are satisfied that the claimant was entitled to pay in lieu of holidays amounting to £2,058.
21. We are satisfied that his holiday entitlements equated to the entitlements conferred by the Working Time Regulations. On the basis of those entitlements, we have calculated that the claimant was entitled to net pay of £42 per day in respect of approximately 28 days during the calendar year 2009. That amounts to the sum of £1,176.
22. On the same basis, the claimant was entitled to the approximate sum of £882 in respect of holiday pay during the year 2010.
23. The aggregate of the sums respectively mentioned in the last two preceding paragraphs is £2,058.
24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 August 2011, Belfast.
Date decision recorded in register and issued to parties: