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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Krkoska v Paul McAleer t/a Sperrin Engin... [2012] NIIT 00873_11IT (19 June 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/873_11IT.html
Cite as: [2012] NIIT 873_11IT, [2012] NIIT 00873_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 873/11
CLAIMANT: Dusan Krkoska
RESPONDENT: Paul McAleer t/a Sperrin Engineering
DECISION
The unanimous decision of the tribunal is as follows:-
1. that the claimant was unfairly dismissed and the respondent is hereby ordered to pay the claimant compensation in the sum of £11,258.00;
2. that the claimant is entitled to 1 week’s wages in respect of a “lying week” and the respondent is hereby order to pay to the claimant the sum of £250.00; and
3. that the claimant is entitled to 4 weeks notice pay and the respondent is hereby ordered to pay to the claimant the sum of £1,000.00.
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr W Irwin
Mrs T Kelly
Appearances:
The claimant did not appear, but was represented at the hearing by Mr Eamon O’Neill, lay representative.
The respondent did not appear at the hearing.
At the beginning of the hearing, the tribunal sought to clarify the identity of the respondent.
The claimant confirmed that his employer was Paul McAleer trading as Sperrin Engineering and the title of the proceedings is hereby amended accordingly.
The Claims
1. The claims before the tribunal were:-
(a) a claim of unfair dismissal;
(b) a claim for a statutory redundancy payment;
(c) a claim for 1 week’s wages in respect of a “lying week”; and
(d) a claim in respect of notice pay.
The Issues
2. The issues to be determined by the tribunal in relation to the claim of unfair dismissal were:-
(a) whether the claimant was dismissed by the respondent;
(b) if so, whether the respondent had complied with the statutory dismissal procedure pursuant to The Employment (Northern Ireland) Order 2003 and The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and therefore whether the dismissal of the claimant was automatically unfair;
(c) the compensation to be awarded to the claimant.
3. The claimant also brought a claim in respect of a statutory redundancy payment. The claimant’s representative accepted at the outset of the hearing that this may be effectively subsumed by the basic award for unfair dismissal if the tribunal found that the claimant had been unfairly dismissed.
4. The issue to be determined by the tribunal in relation to the claim in respect of unpaid wages was whether the claimant had worked a “lying week” without pay at the beginning of his employment and whether pay in respect of that week was still outstanding at the termination of his employment.
5. The issue to be determined by the tribunal in respect of the claim for notice monies was whether the claimant had received the required period of notice of termination of his employment. If not, had he received pay in lieu of notice and, if not, the sum to which the claimant was entitled.
Disposal of the claim in the absence of the respondent
6. The respondent did not appear at the hearing. The tribunal was satisfied 1that the Notice of Hearing had been sent to the respondent at his last known address in good time before the hearing. The respondent contacted the Office by e-mail very late in the evening before the hearing indicating that he would not be able to attend the hearing and inviting the tribunal to proceed to hear the case in his absence. The respondent’s message did not contain any request for a postponement of the hearing nor any indication that the respondent would attend any postponed hearing. In the circumstances, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Contentions of the parties
7. The claimant’s representative contended that the claimant had been dismissed in January 2012 without the respondent following any dismissal procedure. On behalf of the claimant, it was also contended that he was owed a week’s pay in respect of a “lying week” and that he had been dismissed without notice.
8. The respondent accepted in his response form that the claimant had been dismissed. The response form made no reference to any dismissal procedure followed by the respondent. The respondent contended that he had made an offer of redundancy to the claimant and was waiting for the claimant’s response.
Sources of Evidence
9. The tribunal reviewed a number of documents submitted on behalf of the claimant. The tribunal also considered and took account of the content of the claim form submitted by the claimant and the response form submitted by the respondent and the submissions of the claimant’s representative.
Facts of the Case
10. Having considered the claim form submitted by the claimant, and considered the documents submitted by the claimant, and the response form submitted by the respondent, the tribunal found the following relevant facts:-
11. The claimant who was born on 24 September 1976 was employed by the respondent as a steel worker from 15 January 2007. At the end of his employment, the claimant’s wages were £302.00 per week gross, £250.00 per week net.
12. At the beginning of his employment, the claimant worked a “lying week”. He did not receive any pay until the end of his second week of employment. This was customary in the industry and the claimant understood that he would receive payment for this lying week upon the termination of his employment.
13. The claimant started his Christmas holidays on 17 December 2010. The claimant was due to return to work on 3 January 2011, but the claimant did not return to Northern Ireland until 9 January due to illness.
14. On the claimant’s return, he received a text message from the respondent advising him not to report for work as there was no work for him and the respondent did not know whether there would ever be more work.
15. The claimant was then asked to work for 3 days, namely 15, 16 and 17 January 2011. After these days, the claimant was told by the respondent that there would be no more work.
16. On 20 February 2012, a hand-written letter from the respondent was put through the claimant’s letter box. This stated that the respondent had no money and no work and he did not know how long this would continue. The claimant was advised to sign “on the dole” and tell them his last day of work was 31 December 2010. The claimant was also advised, if he got another job, to take it.
17. The claimant understood that he had been dismissed. The claimant signed on for benefits from 18 January 2011. He was not able to obtain alternative employment and left Northern Ireland to return home to Slovakia around July 2011 when his entitlement to benefits ran out.
Statement of Law
18. The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case. In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-
Step 1
Written statement of grounds for action and invitation to meeting – the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee.
Step 2 – Meeting
The meeting must take place before action is taken. The meeting must not take place unless:-
(a) the employer has informed the employee what the basis was for including in the statement the grounds given in it, and;
(b) the employee has had a reasonable opportunity to consider his response to that information.
After the meeting, the employer must inform the employee of his decision and notify him/her of the right to appeal against the decision.
Step 3 - Appeal
If the employee informs the employer of his/her wish to appeal, the employer must invite him/her to attend a further meeting. After the appeal meeting, the employer must inform the employee of his final decision. The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.
19. By Article 130A (1) of the Employment Rights (Northern Ireland) Order1996 (“the Order”), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair. A tribunal is required to consider whether the dismissal is automatically unfair under Article 130A even where this issue has not been specifically raised by the claimant – see Venniri v Autodex Ltd (EAT 0436/07).
20. Pursuant to Article 17 of The Employment (Northern Ireland) Order 2003, where it appears to the tribunal that the non-completion of the statutory dismissal procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10% and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50%.
21. By Article 118 of the 1996 Order, the notice required to be given by an employer to terminate the contract of employment of an employee is one week where the claimant was employed for a period between one month and two years and an additional week for each completed year of continuous employment thereafter.
22. By Article 45 of the Employment (Northern Ireland) Order 1996, an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction. A complete failure to pay wages on any occasion constitutes a deduction from wages.
Conclusions
Unfair dismissal
23. In light of the facts found, the tribunal was satisfied that the respondent’s words and actions towards the claimant made it clear that his employment was terminated immediately after the 3 days he worked on 15, 16 and 17 January 2011. The respondent accepted in his response form that the claimant was dismissed. Accordingly, the tribunal concluded that the claimant was dismissed by the respondent on 18 January 2012.
24. Neither the claimant in his claim form nor the respondent in his response form make any mention of any procedure having been followed by the respondent. The claimant’s employment was terminated instantly. The respondent did not right to the claimant about the possible termination of his employment nor meet with him nor was he offered the right to be accompanied or any appeal. The tribunal had no hesitation in concluding that none of the requirements of the statutory dismissal procedure were complied with in this case. The tribunal was satisfied on the basis of the facts found that the non-completion of the statutory dismissal procedure was wholly attributable to the respondent. The tribunal therefore concluded that the dismissal of the claimant was automatically unfair. Furthermore, the respondent failed to show the reason for the dismissal of the claimant and that the reason was one of the statutory potentially fair reasons for dismissal. In the circumstances, it was not therefore necessary for the tribunal to consider whether the dismissal was fair in all the circumstances.
25. Accordingly, the unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the claimant is entitled to compensation for such unfair dismissal.
Statutory redundancy payment
26. Since the tribunal has concluded that the claimant was unfairly dismissed, as conceded by the claimant’s representative, any entitlement of the claimant to a statutory redundancy payment is effectively subsumed by the basic award for unfair dismissal.
Lying week’s pay
27. The tribunal found as a fact that the claimant worked 2 weeks at the beginning of his employment before he received any pay. It was understood by the parties and customary in the industry that pay in respect of such a lying week would be paid on termination of the employment. The claimant did not receive such pay on termination or thereafter. Accordingly, the claimant is still owed a week’s pay in respect of this lying week.
Notice pay
28. In light of the facts set out above, the tribunal determined that the actual date of dismissal in this case was 18 January 2011. The dismissal of the claimant took effect immediately so that the claimant received no notice of termination.
Compensation
29. Having determined that the claimant was unfairly dismissed, the tribunal went on to consider the appropriate remedy. The claimant did not seek reinstatement or re-engagement. The tribunal therefore considered that the appropriate remedy was compensation.
30. The claimant had begun to look for alternative employment and signed on for benefits immediately after he was dismissed. The claimant was not able to find another job. In view of the unemployment rate within County Tyrone, the tribunal does not find it surprising that the claimant had difficulty in obtaining alternative employment. The claimant remained on benefits for a period of 6 months, returning to his home country when he found himself destitute after his entitlement to benefits ran out. The tribunal considered it just and equitable to award the claimant loss of earnings for the period of 6 months when he remained in Northern Ireland seeking alternative employment.
31. Accordingly, the tribunal determined that it would be just and equitable in all the circumstances for the claimant to be awarded ongoing loss of earnings for a period up to 18 July 2011.
32. The tribunal considered the appropriate uplift to the award for unfair dismissal pursuant to Article 17 of the 2003 Order as described at paragraph 20 above. In view of the facts found, the tribunal considered that the respondent’s non-compliance with the statutory dismissal procedure was extremely serious. The tribunal concluded that the uplift should be at the end of the scale between 10 and 50 %. Therefore, the tribunal determined that it was just and equitable in all the circumstances for the award to the claimant in respect of unfair dismissal to be increased by 50%.
33. The tribunal considers that the appropriate compensation in this case in accordance with Article 152 to 158 of the Employment Rights (Northern Ireland) Order and Article 17 of the Employment (Northern Ireland) Order is as follows:-
(A) Basic award
£302.00 (gross weekly wage) X 4 (years continuous employment) = £1,208.00
(B) Compensatory award
Immediate loss to date of hearing:-
26 weeks at £250.00 net per week = £6,500.00
Total compensatory award for unfair dismissal (B) = £6,500.00
Increase in compensatory award of 50% ADD £3,250.00
TOTAL compensatory award after increase = £9,750.00
(C) Loss of statutory rights = £300.00
Prescribed element = £6,500.00
Dates to which the prescribed element is attributable – 18 January 2011 to 18 April 2012.
Amount by which the monetary award exceeds the prescribed element = NIL
The tribunal considers that a reduction for contributory fault is not appropriate in this case.
Accordingly, the tribunal hereby orders the respondent to pay to the claimant compensation for unfair dismissal in the sum of £11,258.00.
34. The claimant is entitled to 1 weeks pay in respect of his lying week as follows:-
Award in respect of unpaid wages - 1 week’s net pay = £250.00 (net)
35. The claimant is also entitled to 4 weeks pay in respect of notice pay for the weeks calculated as follows:-
Award in respect of notice monies 4 x £250.00 = £1,000.00 (net)
36. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 18 April 2012, Belfast.
Date decision recorded in register and issued to parties: