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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hopps v Danny Zecevic [2011] NIIT 286_10IT (11 January 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/286_10IT.html
Cite as: [2011] NIIT 286_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 286/10
CLAIMANT: Edward Carson Hopps
RESPONDENTS: 1. Danny Zecevic
2. Greentrees Northern Ireland Limited
DECISION
The unanimous decision of the Tribunal is that the claimant had been unfairly dismissed. The claimant is therefore awarded £8,317.80.
Constitution of Tribunal:
Chairman: Ms Petra Sheils
Members: Mrs Teresa Madden
Mr William Irwin
Appearances:
The claimant appeared and was represented by his partner Ms Linda Topping.
The respondent did not appear and was not represented.
The Claim and the Response
1. The claimant lodged a claim form on 3 February 2010 alleging that he had been unfairly dismissed by virtue of being sacked without notice.
2. The respondent presented a response on 25 February 2010 stating variously that the claimant did not have the requisite continuity of employment of one full year and that the claimant had resigned.
The Issues
3. The first issue the tribunal had to decide was how it should proceed in the absence of the respondent. In reaching this decision the tribunal considered Rule 27, paragraphs (5) and (6). These state:-
Paragraph (5)
Paragraph (5) of the Industrial Tribunals Constitution and Rules of Procedure Regulations (Northern Ireland) 2005 states:-
If a party fails to attend or to be represented (for the purposes of conducting the party’s 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)
If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5) it shall first consider any information in its possession which has been made available to it by the parties.
In this regard the Tribunal considered the office file and submissions made to it by Ms Topping which were to the effect that the respondent had failed to turn up on previous occasions for one reason or another.
The office file indicated that the case had been set down for hearing on 1 June 2010. That hearing appears to have been postponed at the Tribunal’s own motion and a Case Management Discussion was then listed for 10 June 2010. Both parties were invited to attend this Case Management Discussion but the respondent failed to turn up.
The case was subsequently listed for 1 July 2010. The respondent applied for a postponement of the case due to the fact that his son’s wedding fell some two days before the date of the hearing and was taking place outside the jurisdiction.
4. The case was relisted for 8 July and on the 7 July the respondent’s wife contacted the office to apprise them of the latest position. The Tribunal noted that there was a letter on file from the Ulster Hospital confirming that the respondent had been admitted suffering from chest pains.
5. The case was postponed at this point and listed again for 28 September 2010. The Tribunal confirmed that a notice of hearing to that affect had been sent to both parties and noted that the respondent had not contacted the office.
Decision
- The Tribunal considered the information it had in its possession and decided to dispose of the case. In reaching this conclusion the Tribunal took into account the numerous occasions on which this case had been listed for hearing and the fact that the case had been postponed on two previous occasions by the respondent and on the latter occasion, when the respondent was suffering from chest pains, with the consent of the claimant. The Tribunal noted that the parties had both been served with a Notice of Hearing in relation to the listing of the case for 28 September 2009 and that in all circumstances it would not be fair or reasonable to delay this matter further.
Facts
7. The Tribunal found the following fact proven on the balance of probabilities.
8. The claimant, whose date of birth is 10 April 1972, commenced employment with the respondent on 1 October 2003 and continued working for him until 20 January 2010. The claimant was employed as a Tree Surgeon and earned £360.00 gross and £285.65 net per week.
9. The claimant arrived into work on 20 January 2010 and was advised by another worker that he, the claimant, was required to drive the lorry that day. The claimant refused to do this on the basis that he did not have a lorry licence and that he believed that the lorry was unfit for the road and unsafe to drive.
10. When the claimant advised the respondent that he would not drive the lorry for these reasons the respondent told the claimant that he was sacked and to go home.
11. The claimant was shocked and upset by this decision as he had never received a verbal or written warning in the seven years he had worked for the respondent.
12. The claimant received his week’s pay on Friday, 22 January 2010. The claimant subsequently received a letter from the respondent dated 20 January 2010 stating:-
“Dear Mr Hopps
As of today your services are no longer required due to irreconcilable differences.
Yours sincerely Danny Zecevic”
13. Shortly after his dismissal the claimant secured alternative employment. The claimant now works in a tyre shop and although he is receiving approximately £220.00 per month less in his wages the work is less physically stressful and he prefers it.
The Tribunal’s Conclusions
14. The Tribunal noted the respondent’s response in this case and that it contained a version of events entirely at odds with the claimant’s. However the claimant denied the respondent’s version of events and in the absence of any challenge the Tribunal concluded that the claimant had been unfairly dismissed.
15. The Tribunal also noted that the respondent had failed to comply with the statutory dismissal procedures or any procedures at all.
16. The tribunal awarded the claimant the following:-
Basic Pay
Gross Pay x 6 weeks = £360.00 x 6 = £2,160.00
Notice Pay
£285.65 x 6 = £1,713.90
Holiday Pay
£285.65 x 1 = £285.65
Loss of Statutory Rights £500.00
Compensatory Award
Future loss
The tribunal noted that the claimant had obtained employment.
The Tribunal also noted that this employment earned the claimant £220.00 net per month less than his previous employment with the respondent. In considering future loss the Tribunal took into account that although the claimant was unhappy with the differential in his wages he was happier in this job and would be unlikely to be seeking alternative higher paid employment in the near future. However the Tribunal balanced this with the fact that the claimant found himself in this position as a direct result of the respondent’s actions and accordingly have awarded future loss at £220.00 per month for six months equal to £1,320.00.
Lying Week
£285.65 x 1 = £285.65
Uplift
The Tribunal decided to uplift the claimant’s award of £4,105.20 by 50% i.e. £2,052.60. In reaching this decision the Tribunal had consideration to all the circumstances of this case and noted that the respondent had dismissed the claimant not only without reference to any statutory dismissal procedure or other procedures but also without reference to any clear reason for the dismissal. The Tribunal noted that the claimant stated that other employees had left the respondent but that otherwise the Tribunal had no information as to whether these people had been replaced or whether the respondent was experiencing any downturn in business or other financial difficulties accordingly the Tribunal increased the claimant’s award by 50%.
Total Award £8,317.80
17. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 28 September 2010, Belfast.
Date decision recorded in register and issued to parties: