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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Prochownik v O'Neill Contracts Ltd (in admi... Skipway Waste Management [2012] NIIT 00774_12IT (30 January 0 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/774_12IT.html
Cite as: [2012] NIIT 774_12IT, [2012] NIIT 00774_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 774/12
CLAIMANT: Jacek Prochownik
RESPONDENTS: 1. O'Neill Contracts Ltd (in administration)
2. Skipway Waste Management
DECISION
It is the unanimous decision of the tribunal that the claimant was unfairly dismissed by reason of unfair selection for redundancy. The claimant’s claims for holiday pay and for statutory procedural unfairness are dismissed.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mr E Grant
Mr J Magennis
Appearances:
The claimant appeared in person and represented himself.
The respondents did not appear.
SOURCES OF EVIDENCE
1. The claimant gave evidence on his own behalf and the tribunal also considered certain documents which he had produced, as well as correspondence from KPMG, the administrators of the company.
THE CLAIM AND THE DEFENCE
2. The claimant claimed that he was unfairly dismissed. His claims for redundancy payment and notice pay had been met by the time of the hearing and accordingly were dismissed.
THE RELEVANT LAW
3. The relevant law in relation to unfair dismissal is found in Article 130 of the Employment Rights (Northern Ireland) Order 1996.
THE FACTS
4. The claimant was employed by O’Neill Contracts Ltd working in the Skipway Waste Management Division. On the basis of payslips provided by the claimant, the tribunal finds that the actual employer and correct respondent to the claim is O’Neill Contracts Ltd and Skipway Waste Management is hereby dismissed from these proceedings.
5. The claimant was employed by the respondent from 16 May 2007 to 22 February 2012 giving him four completed years of service.
6. On 22 February 2012 he was invited to a meeting by KPMG representatives. On that day he was told that he had been moved to the Civilis department (which was the other Department in the company). At the meeting he was told that he was going to be made redundant and indeed everyone in the Civilis department of O’Neill Contracts Ltd in administration was in fact made redundant.
7. By KPMG’s letter of 16 February 2012, the claimant was told that the respondent would carry out a consultation exercise with appropriate representatives of employees who may be affected and this was to cover proposed selection criteria and ways of avoiding or reducing the number of redundancy dismissals. This did not happen. Accordingly, we find that the claimant was unfairly dismissed by reason of unfair selection for redundancy. The claimant is entitled to receive compensation as follows:-
At the time of dismissal, the claimant was 31 years of age, making the appropriate multiplier one, as all of his four years of employment had taken place in the age group from 21 to 40.
The gross weekly wage of the claimant was £400.00, therefore his redundancy payment is calculated as follows:-
|
£400.00 x 4 x 1 = |
£1,600.00 |
However, the claimant has received a redundancy payment which is equal to the basic award and so has been deducted there from.
8. The claimant has successfully mitigated his loss as he started a new job on 16 May 2012. Accordingly, this is a period of 12 weeks from the date of dismissal.
IMMEDIATE LOSS
9. The claimant earned £323.00 net per week.
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12 x 1 x £323.00 = |
£3,876.00 |
LOSS OF STATUTORY RIGHTS
10. The tribunal is awarding the amount of £300.00 in respect of this head of claim.
FUTURE LOSS
11. The claimant’s new job gives him a weekly net wage of £290.00, making him £33.00 less well-off per week. In the current job market, the tribunal considers it could be some time before the claimant actually obtains a job of equal remuneration to that enjoyed with the respondent. The tribunal, however, commends the claimant for his successful mitigation of his loss because at the time of hearing not only does he have a job but he is also on a waiting list for Translink. In all the circumstances of the case, the tribunal considers that it is just and equitable to award the weekly differential of £33.00 for a period of 26 weeks:-
|
£33.00 x 26 = |
£858.00 |
RECOUPMENT
12. The claimant was in receipt of Jobseeker’s Allowance from 2 April to 15 May. This is a period of six weeks and the attention of the parties is drawn to the recoupment notice that accompanies this decision.
THE HOLIDAY PAY CLAIM
13. The claimant indicated that his holiday year ran from April to March. As the claimant was dismissed with effect from 22 February 2012 and as he had taken 26 days in this holiday period, the tribunal considered that he had no accrued holiday untaken at the time of dismissal and this claim was dismissed.
14. The tribunal finds that Article 216 of the Employment Rights (Northern Ireland) Order 1996 applies in this case in that 20 or more employees were proposed to be dismissed as redundant at the one time. This means that the administrators are released from the requirement to comply with the statutory dismissal procedure in Schedule One of the Employment (Northern Ireland) Order 2003 and the claimant’s claim to be procedurally unfairly dismissed is hereby dismissed.
SUMMARY OF COMPENSATION
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15. |
Basic Award: |
Nil. |
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|
|
|
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Immediate Loss: |
£3,876.00 |
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|
|
|
|
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Loss of Statutory Rights: |
£300.00 |
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|
|
|
|
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Future Loss: |
£858.00 |
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Total: |
£5,034.00 |
16. The attention of the parties is drawn to the recoupment notice that accompanies this decision.
17. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 29 August 2012, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 774/12
CLAIMANT: Jacek Prochownik
RESPONDENTS: 1. O'Neill Contracts Ltd (in administration)
2. Skipway Waste Management
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT ALLOWANCE/ INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.
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£ |
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(a) Monetary award |
£5,034.00 |
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(b) Prescribed element |
£1,938.00 |
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(c) Period to which (b) relates: |
2 April to 15 May 2012 |
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(d) Excess of (a) over (b) |
£3,096.00 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.