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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Perry v Eclipse Construction Managemen... Eclipse Construction Managemen... Eclipse Construction Managemen... Eclipse Construction Managemen... [2012] NIIT 00207_12IT (26 March 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/00207_12IT.html
Cite as: [2012] NIIT 207_12IT, [2012] NIIT 00207_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 2803/11
207/12
209/12
211/12
CLAIMANTS: 1. Trevor Robert Alexander Barr
2. Carol Perry
3. Francis Ann McClure
4. Cooper Albert McClure
RESPONDENT: Eclipse Construction Management Ltd
DECISION
The unanimous decisions of the tribunal are as follows:
The Barr Case
(A) We granted the claimant leave to amend his claim form so as to include a claim for a redundancy payment.
(B) The claimant’s claim in respect of wages is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £3,640 in respect of wages.
(C)
The claimant’s claim in respect
of notice pay is well-founded and it is ordered that the respondent shall pay
to the claimant the sum of £1,837 in respect of notice pay.
(D) The respondent is liable to make a redundancy payment to the claimant. The amount of that redundancy payment is £3,600.
(E) The claimant’s unfair dismissal claim is well-founded. It is ordered that the respondent shall pay to the claimant the sum of £1,575 in respect of unfair dismissal.
Ann McClure
(A)
The claimant’s claim in respect
of wages is well-founded and it is ordered that the respondent shall pay to the
claimant the sum of £2,163 in respect of wages.
(B)
The claimant’s claim in respect
of notice pay is well-founded and it is ordered that the respondent shall pay
to the claimant the sum of £1,656 in respect of notice pay.
(C) The respondent is liable to make a redundancy payment to the claimant. The amount of that redundancy payment is £4,635.
Carol Perry
(A)
The claimant’s claim in respect
of wages is well-founded and it is ordered that the respondent shall pay to the
claimant the sum of £889 in respect of wages.
(B)
The claimant’s claim in respect
of notice pay is well-founded and it is ordered that the respondent shall pay
to the claimant the sum of £868 in respect of notice pay.
(C) The respondent is liable to make a redundancy payment to the claimant. The amount of that redundancy payment is £889.
Cooper McClure
(A) The claimant’s claim in respect of wages is well-founded and it is ordered that the respondent shall pay the sum of £110 to the claimant in respect of wages.
(B) The claimant’s claim in respect of notice pay is well-founded and it is ordered that the respondent shall pay the claimant the sum of £780 in respect of notice pay.
(C) The respondent is liable to make a redundancy payment to the claimant. The amount of that redundancy payment is £1,870.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mrs S Butcher
Mr D Hampton
Appearances:
The claimants were represented by Mr B McKee, Barrister-at-Law, instructed by E J Lavery and Co Solicitors.
There was no appearance on behalf of the respondent.
REASONS
1. In the course of the main hearing, we announced our decisions. At the same time, we gave reasons for those decisions. Accordingly, what follows is by way of summary only.
2. All of the claimants, in these consolidated cases, were employees of the respondent in October 2011. All of the claimants were dismissed by the respondent during that month.
3. The respondent presented a response in the Barr case and were represented in that case by Hinds and Small, a firm of solicitors. However, the respondent company has now ceased trading. At a Case Management Discussion, which was held on 16 February 2012, Mr Small, of Hinds and Small, expressed doubt that any responses would be presented on behalf of the respondent company in any of the three other cases. Prior to the date of the main hearing, Mr T Lavery (in his role as solicitor for the claimants) was in touch with the solicitor for the respondent and was informed on that occasion that there would be no appearance at the main hearing on behalf of the respondent, even in the Barr case.
4. The failure to present responses in the Carol Perry, Ann McClure and Cooper McClure cases has the effect of debarring the respondent from being represented at the main hearing in those cases.
5. Against the background outlined above, we decided to dispose of the Barr case, even though no representative of the respondent was present.
6. In disposing of all of these cases, we took due account of such information, emanating, from the respondent company and/or its representative and/or from the claimants, as was available to us.
7. We were satisfied that there was a TUPE relevant transfer, during the Autumn of September 2010, and that each of the claimants in these cases was assigned to the relevant entity at the time of the transfer, and that the transferor under that transfer was Building Concepts Ltd, and that the transferee under that transfer was the respondent company.
8. Accordingly, in calculating the period of continuous employment, of each claimant, in the context of the claims in the present proceedings, we regarded each claimant as having an entitlement to be regarded as having his/her continuity of service with the respondent company deemed to be enhanced by his/her period of service with Building Concepts Ltd. We also concluded that the respondent had become liable for wages which Building Concepts owed to the claimants prior to the relevant transfers.
9. In calculating the amount of wages due to each claimant, we took the view that wages should be awarded on a gross weekly pay basis (with the employer being obliged to account to HMRC, in respect of PAYE deductions, when paying the amount of the wages award).
10. We calculated each claimant’s entitlement to notice pay on the following basis. First, we calculated the net wages which the claimant would have received if he/she had continued to be employed by the respondent during the notice period. Secondly, from that sum, we deducted the following:
(1) The amount of any net pay received by the relevant claimant from other employers (from employers other than the respondent) in respect of work carried out during the notice period, if the claimant’s availability for that work was the result of the respondent’s failure to comply with its duty to provide due notice of dismissal.
(2) We also deduced any sum paid to the relevant claimant by way of Job Seekers Allowance in respect of the notice period.
11. In each instance, the relevant claimant’s redundancy pay was calculated in light of that claimant’s number of years of completed service and in light of his/her age during those years of service.
12. We were satisfied that the employer had admitted and accepted that the dismissals of Ms Perry, Mrs McClure and Mr McClure were occurring because of the economic downturn. Accordingly, even on the basis of the employer’s version of events, it is clear that those dismissals occurred because of redundancy.
13. In the case of Mr Barr, the employer told him that he was being dismissed because of alleged failures on his part in relation to the way in which he carried out his job. However, we are satisfied that Mr Barr believes that this was merely a pretext for reducing the company’s staff costs, at a time when the respondent company was facing very difficult financial circumstances. In light of the factual context of this case, we consider that to be a reasonable belief on the part of Mr Barr.
14. In any event, we are satisfied that the claimant’s dismissal must be regarded as being a dismissal by reason of redundancy. The effect of Article 198(2) of the Employment Rights (Northern Ireland) Order 1996 is that, for the purposes of the redundancy pay claims in the present proceedings, an employee who was dismissed by his employer must, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy. In each of these claims of redundancy, the “contrary” has not been proven.
15. For the purpose of calculating entitlements, in these four cases, we had to come to conclusions about the amounts of each claimant’s weekly gross and net pay at the time of each relevant dismissal. Our conclusions on those matters are as follows:
(1) Barr (gross pay of £700 per week and net pay of £525 per week).
(2) Ann McClure (gross pay of £309 per week and net pay of £246 per week).
(3) Perry (gross pay of £127 per week and net pay of £124 per week).
(4) Cooper McClure (gross pay of £340 per week and net pay of £276 per week).
16. Mr Barr was entitled to notice pay in respect of his dismissal unless he was guilty of gross misconduct at common law. Even on the basis of the conduct alleged by the respondent (in their response in these proceedings), the relevant acts and omissions on the part of Mr Barr did not amount to gross misconduct at common law. Therefore, in our judgement, he was entitled to notice, as calculated in accordance with Article 118 of the Employment Rights (Northern Ireland) Order 1996. He was given no such notice. Therefore he is entitled to succeed in his claim for breach of contract in respect of notice.
17. Mr Barr’s claim for unfair dismissal also succeeds, against the following background and for the following reasons.
18. First, it is clear, in the context of this dismissal, that there have been flagrant breaches of the statutory dismissals procedures (as provided for in Article 130A of the Employment Rights (Northern Ireland) 1996). Those breaches render the dismissal automatically unfair, in the sense in which automatic unfairness is used within the context of Article 130A(1) of the 1996 Order.
19. Secondly, in relation to a claim for unfair dismissal, it is up to the employer to “show” the reason for dismissal, and that the reason for dismissal was a potentially fair reason for dismissal.
20. In this case, the respondent has failed to “show” the reason. Nobody was present on behalf of the respondent, at this main hearing, and therefore nobody has “shown” the true reason for dismissal on behalf of the respondent. The claimant, during his evidence, told us on oath that he considered that he had not been guilty of any conduct which justified dismissal. He also told us that he thought that the reason for dismissal was the financial and economic situation then facing the respondent company (as distinct from any failures on his own part, which he denied).
21. We have made an award to Mr Barr in respect of redundancy pay. Accordingly, because of that redundancy pay award, the claimant is not entitled to any unfair dismissal basic award (See Article 156(4) of the 1996 Order).
22. As Mr McKee realistically recognised, any compensatory award due to Mr Barr has to be limited because of the fact that the company ceased trading very soon after the date of his dismissal. We have decided to award the claimant the sum of £1,575 by way of compensatory award in respect of unfair dismissal.
23. The Recoupment Regulations apply to the unfair dismissal award which has been made in favour of Mr Barr. The prescribed period was the period from 4 October 2011 to 25 October 2011. The prescribed amount was £1,575. The amount of the unfair dismissal award does not exceed the prescribed amount.
24. Our understanding is that the company has no funds to make payments in respect of the awards which we are making.
25. Our understanding is that the claimants intend to pursue applications to the Department for Employment and Learning, in the Department’s role as the statutory guarantor in respect of certain debts, in relation to the redundancy payments.
26. The claimants know that unless and until the respondent becomes formally “insolvent” (in the sense in which the term “insolvent” is used in the relevant part of the Employment Rights (Northern Ireland) Order 1996), the Department will have no power, in its statutory guarantee role, to make payments in respect of wages, notice pay or the unfair dismissal basic award.
27. It will be a matter for the claimants, in light of such legal advice as may be provided to them to them by their advisers, to determine whether it is in their interests to seek to have the respondent company declared formally insolvent (with a view to triggering the Department’s powers, in its role as statutory guarantor, in relation to wages and notice pay and the unfair dismissal compensatory award).
28. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 6 March 2012, Belfast.
Date decision recorded in register and issued to parties: