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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smith v Richard Millar, t/a Takeaway2G... [2012] NIIT 02090_11IT (08 March 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02090_11IT.html
Cite as: [2012] NIIT 2090_11IT, [2012] NIIT 02090_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2090/11
CLAIMANT: Karl Smith
RESPONDENT: Richard Millar, t/a Takeaway2Go
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed. Accordingly the tribunal orders the respondent to pay the claimant £4,872 compensation as set out below.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mrs C Lewis
Mr B Irwin
Appearances:
The claimant appeared and was represented by Mr Thomas Doherty, Solicitor of Thomas Doherty and Company Solicitors, Shipquay Street, Londonderry.
The respondent did not appear and was not represented.
The Claim and the Response
1. The claimant lodged a claim form on 8 September 2011 claiming unfair dismissal by reason of redundancy, redundancy pay, notice pay, holiday pay, loss of earnings for the period between 12 July and 1 August 2011 and compensation for unfair dismissal.
2. The respondent presented a response denying all of the claims.
SOURCES OF EVIDENCE
Witnesses
3. The tribunal heard from the claimant.
Documents
4. The tribunal was furnished with a claim form and the response and two further documents that were submitted to the tribunal at hearing. These were the claimant’s grievance letter dated 4 August 2011 and a transcript of the text messages exchanged between the claimant and the respondent on 12 July 2011. The tribunal also had sight of the Office file.
At Hearing
6. In view of the fact that the respondent did not appear and was not represented the tribunal considered Rule 27 (5) and (6) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Paragraph (5) states:-
If a party fails to attend or to be represented (for the purpose 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) goes on to state:-
If the 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.
7. The tribunal heard evidence from the claimant in this regard. The claimant had had no correspondence or contact with the respondent since he had received his response form and had received no indication that the respondent was unlikely to appear at this hearing.
8. The tribunal considered documents in the Office file. The tribunal noted correspondence between the Office and Murphy Irwin and Company, solicitors dated 16 January 2012. This correspondence indicated that these solicitors had been retained solely to write (to the Office) to notify that Takeaway2Go Ltd had ceased in business, was no longer trading and was dormant awaiting strike off. The tribunal noted that there was no reference to the fact that the respondent would or would not be at the hearing.
9. The tribunal noted that both the claimant and the respondent had been sent a Notice of Hearing on 19 December 2011 indicating that this case would be heard on 25 January 2012.
10. In view of the above, the tribunal concluded that it would dispose of the case as the tribunal considered it had no information in its possession to suggest the respondent had a good reason for not appearing at hearing.
11. The tribunal next addressed the issue of the title of this case. In his ET1 the claimant had referred to the respondent as Richard Millar, t/a Takeaway2Go. In the ET3, signed by Mr Richard Millar, the respondent was identified as Richard Millar, t/a Takeaway2Go.com. There was no reference in the respondent’s ET3 to the business ever being a limited company.
12. The tribunal noted
correspondence from the solicitors, Murphy Irwin, in relation to the
reference to the business no longer trading and being dormant awaiting
striking-off and the tribunal noted that messrs Murphy Irwin and Company
Solicitors referred to “Karl Smith v Takeaway2Go Ltd”.
13. The tribunal noted that the correspondence from Murphy Irwin and Company Solicitors enclosed correspondence between them and Jas Campbell and Company, accountants. This correspondence referred to “Takeaway2Go.com Ltd”. This correspondence enclosed a copy of form DS01 submitted to Companies House asking that the business described as Takeaway2Go.com Ltd be advertised as struck off in the Belfast Gazette and enclosing a cheque for £10.00, administration fee.
14. The tribunal heard evidence from the claimant in relation to this issue. The claimant stated that he had never received any documentation from Mr Millar and specifically had no written contract of employment, no statement of terms and conditions, had itemised payslips and had received no reply to his grievance letter of 4 August 2011.
15. The claimant added that he had been personally employed by Mr Millar at all times. The claimant also stated that at the beginning the shop was known for a while as ToGo.com and that this was on the shop sign. However, the claimant added that the shop thereafter became known as Takeaway2Go and the sign had been changed. However, the claimant stated that at no time was the business ever described to him or put on the sign as Takeaway2Go Ltd or Takeaway2Go.com Ltd.
16. The tribunal concluded that the claimant had been employed by Mr Richard Millar t/a Takeaway2Go. The tribunal gained no assistance from correspondence between the solicitors and the accountants. The tribunal concluded that it had no clear evidence before it from which the tribunal could conclude that the respondent, Mr Millar, had been trading as a limited company. Additionally, the tribunal concluded that it had no evidence before it to conclude that Mr Millar trading as Takeaway2Go had been struck off or had ceased to trade.
FINDINGS OF FACT
17. The tribunal noted that there was a considerable divergence between the description of his employment and events leading up to his dismissal and that of the respondent, as contained in the respondent’s ET3. However, taking account of the fact that the respondent failed to appear or to be represented the tribunal found the following facts as proven on a balance of probabilities.
18. The claimant was employed by the respondent, Mr Richard Millar, t/a Takeaway2Go in late January or early February 2009. He worked as a catering assistant in the respondent’s business. The claimant did not receive a written contract of employment but that the general running of his employment was governed by a verbal contract between himself and the respondent. The claimant stated that he had never received any itemised pay statements and that he had not received any holiday pay throughout the period of his employment.
19. In late April 2011 the claimant was approached by the respondent who told him that he was going to have to reduce the claimant’s working hours. The claimant was told that the respondent could no longer afford to pay the claimant his full working week. The claimant stated that he felt he had no choice but to agree to this arrangement and worked four days, Tuesday to Friday, thereafter. The claimant stated that from the reduction in his working hours the respondent became very critical of the claimant’s work, that he belittled the claimant and questioned his competency. The claimant stated that this had never happened prior to April 2011 and that it increased in intensity towards his ultimate dismissal.
20. At this time the respondent advised the claimant that he (the respondent) would have to work the claimant’s former hours himself. At first the respondent did so but the claimant stated that this had only happened for approximately two weeks. Thereafter, a female member of staff worked what had been the claimant’s hours on Mondays. The claimant spoke to the respondent about this and the respondent told the claimant that the female staff member was being paid £1.00 per hour less than the claimant had been paid and that she was therefore cheaper to employ. The claimant stated that he had to put up with the respondent’s behaviour towards him as he had not wanted to lose his job.
21. On 8 July 2011 the claimant went off work, due to return on Tuesday, 12 July 2011. The claimant attended 12 July celebrations in Ballymoney over that weekend. During this period, the claimant stated that he turned his mobile telephone off. However, the claimant stated that during this weekend he became aware of the fact that the respondent had been trying to contact him because the respondent rang the claimant’s fiancée. The claimant stated that his fiancée had told the respondent that the claimant was out with his mates and that he had turned his telephone off.
22. On the morning of 12 July 2011 the claimant switched on his mobile telephone and noticed that he had received numerous missed calls from the respondent and he then began to realise there was a problem at work. The claimant sent the respondent a text asking “is it ok for me to come to work”, the respondent texted back “no I have it covered. Didn’t know if you were going to turn up when you didn’t answer telephone”. The claimant sent a further text saying “do I still have a job”, to which the respondent replied “no”. The claimant received no further correspondence or other indications from the respondent advising him that he had lost his job.
23. The claimant wrote a grievance letter to the respondent on 4 August 2011 and received no reply, either within the statutory 28 day period or since. The claimant lodged a claim on 8 September 2011.
24. In relation to there being any redundancy the claimant stated that the respondent was still in business although the shop was now called “Oscar’s Kitchen”. The claimant stated that this business was on the same premises as the previous shop and that the respondent was working there. The claimant also stated that the respondent’s dog was called Oscar and that he believed that this was the reason for the name of the shop.
25. The claimant also stated that the respondent was recruiting for staff as recently as the week commencing 16 January 2011.
26. In October 2011 the claimant secured employment for one day per week in a friend’s chip shop in Coleraine. This work was on no specific day but on whatever day his friend could give him. He received £40 per week for this work. The claimant also stated that he had not claimed any benefits preferring to register as self-employed and keep up his working tax credits.
27. The claimant stated that he had been seeking employment by checking on the Job Centre On-line Job Search but that he had not applied for anything. He stated that he relied on word of mouth but had been unsuccessful in gaining employment. The claimant stated that he had not ever been previously unemployed and believed that he was now, at over 30 years of age, with limited qualifications, in a very bad position to get employment.
THE LAW
28. The Employment Rights (Northern Ireland) Order 1996 provides at Article 126, Paragraph 1:-
“An employee has the right not to be unfairly dismissed by his employers.”
The Order goes on to state at Article 127, Paragraph 1(c):-
“For the purposes of this Part an employee is dismissed by his employer if (and, subject to Paragraph (2) and Article 128, only if) –
(a) the contract under which he is employed is terminated by the employer (whether with or without notice).”
Article 130 of the Order goes on to state that:-
“(1) In determining ... whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or, if more than one, the principle reason) for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”
The Tribunal’s Conclusions and Remedy
29. The tribunal concluded on the claimant’s evidence that he had been unfairly dismissed by reason of redundancy.
30. The tribunal was not convinced that the claimant had made any significant efforts in relation to gaining further employment and concluded that he had failed in his duty to mitigate his loss. The tribunal reflected this in not awarding any loss of earnings and awarding no future loss.
31. The tribunal concluded that the claimant had been unfairly dismissed by reason of redundancy. The tribunal also concluded that the claimant had been automatically unfairly dismissed by virtue of the respondent’s failure to comply with the statutory dismissal procedures.
Compensation
Basic Award
32. The tribunal augmented the basic award in view of the fact that the respondent had failed to comply with the statutory disciplinary procedure.
However the tribunal deducted the amount of the claimant’s redundancy pay from this figure.
Thus, basic award = 4 weeks x £400 = £1600 less Redundancy pay (30hrs x £5.75 = £172.50 x 2 = £345.00) = £1,255
Notice pay 30hrs x £5.75 = £172.50 x 2 = £345.00
Holiday pay £172.50 x 8 weeks (4 weeks per complete years worked) = 8 x £172.50 = £1,380.00.
Loss of Statutory Rights £500
Total = £3,480
. In line with the Regulations in this regard the tribunal exercised its discretion to increase this award by 40% on the basis that the respondent demonstrated a complete failure to comply with the dismissal procedure.
Thus total amount awarded = £4,872
And the tribunal orders the respondent to pay the claimant accordingly.
33. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 January 2012, Belfast.
Date decision recorded in register and issued to parties: