Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Doherty v Darin Lace Limited (in liquida... [2013] NIIT 01673_12IT (21 February 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1673_12IT.html
Cite as: [2013] NIIT 1673_12IT, [2013] NIIT 01673_12IT
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 1673/12
CLAIMANT: Barry Doherty
RESPONDENT: Darin Lace Limited (in liquidation)
DECISION
It is the unanimous decision of the tribunal that the claimant was dismissed unfairly both substantively and procedurally. The respondent is ordered to pay the claimant the sum of £20,900.00.
Constitution of Tribunal:
Chairman (sitting alone): Ms W A Crooke
Members: Mrs C Stewart
Mr B Hanna
Appearances:
The claimant appeared in person and represented himself.
The respondent did not appear. The company as at 14 January 2013 was confirmed to be in Creditors’ Voluntary Liquidation and Stephen Powell and Gordon Johnston of HJS Recovery, 12-14 Carlton Place, Southampton, Hampshire SO15 2EA were appointed as joint liquidators. Although the joint liquidators were notified of the hearing they indicated that they would not be able to assist the tribunal with any information concerning the subject matter of the claim or any documents relating thereto and as such would not be entering a response or becoming a party to the claimant’s claim.
SOURCES OF EVIDENCE
1. The claimant gave evidence on his own behalf and he also produced some documents relating to his employment with the respondent which the tribunal perused in the course of its deliberations.
THE CLAIM AND THE DEFENCE
2. The claimant claimed that he had been unfairly dismissed by the respondent.
THE RELEVANT LAW
3. The relevant law relating to unfair dismissal is found in Article 130 of The Employment Rights (NI) Order 1996.
PRELIMINARY MATTERS
4. The tribunal noted that the claimant’s claim had been entered against the Mandarin Karma and Darin Lace Limited (in liquidation). It appeared that the Mandarin Karma was the name of the restaurant in which the claimant had been employed as a bar tender. A company search against Darin Lace Limited showed that it operated licensed restaurants, takeaway food shops and mobile food stands. Therefore the tribunal considers that the claimant was actually employed by Darin Lace Limited and that the Mandarin Karma was simply the trading name of the restaurant in which he worked. Therefore we have removed the name of the Mandarin Karma as a respondent to the claimant’s claim.
THE FACTS
5. The claimant was employed by the respondent as a bar tender from 1 November 2010 to 5 August 2012. The claimant confirmed that the date of 1 November 2010 appearing in his contract of employment before the tribunal was the correct commencement date of his employment. Therefore at the time of termination of his employment the claimant had one completed year of service and was 28 years of age. The claimant had a disciplinary history for which he had received a final written warning which was active at the time of the events which led to his dismissal. The relevance of the papers relating to this disciplinary offence in the opinion of the tribunal was that it showed that the respondent was perfectly aware of the way to carry out a disciplinary matter. There was an investigation with notes. There was a stage 1 letter. There was a hearing and an outcome. There was an outcome letter dated 2 March 2012 which explained that the claimant had the right of appeal against the sanction.
6. The events which led to the claimant’s dismissal took place on 4 August 2012. The claimant had suggested to another colleague that an elderly frequent customer with mobility difficulties should be seated downstairs in the restaurant. When the claimant attended for his next shift the next day (5 August 2012) he was met in the office by Stanley Lee, the owner/company director and Brendan, the manager. Essentially, the claimant was dismissed at once without any compliance with the now standard disciplinary procedures set down by the Employment (NI) Order 2003.
7. There was no investigation of the claimant’s alleged offence. The claimant was not given prior notice of the hearing. He was simply dismissed for showing concern in respect of a customer.
8. The company went into administration in or around 20 August 2012. The claimant entered his claim with the Industrial Tribunals on 28 August 2012.
CONCLUSIONS
9. The tribunal finds that the claimant’s dismissal was substantively unfair. Under Article 130A it is for the employer to show that the reason for a dismissal is a reason falling within paragraph 2 or some other substantial reason such as to justify the dismissal of an employee holding the position the claimant held. Subsections two and three of this article define the term “reason”. Once the employer has fulfilled the requirements of paragraph 1 of this article the determination of whether the dismissal was fair or unfair depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The tribunal does not consider that the employer has complied with its requirement to show the reason for the dismissal and the tribunal also considers that it is unable to consider that the circumstances in which the claimant was dismissed constituted a sufficient reason for his dismissal. Essentially, he was showing concern for a frequent customer at the restaurant. Having perused the claimant’s contract of employment, the tribunal does not consider that this is behaviour falling within the various examples of gross misconduct set out therein. Furthermore the tribunal does not consider that this is capable of being described as any form of misconduct.
10. The tribunal also considers that the claimant’s dismissal was unfair on procedural grounds. From a perusal of the papers relating to the previous offence which resulted in a final written warning, it was plain to the tribunal that this respondent was very well aware of how to carry out a disciplinary investigation, notification of hearing, hearing and provision of outcome letter. Furthermore this respondent was able to employ an independent Human Resources consultant to assist it in conducting this previous disciplinary matter. None of this happened in relation to the events of 4 August 2012. Put very simply the claimant arrived for his shift, was called into the office and informed that he was dismissed for what took place in relation to his suggestion that the elderly customer could be better accommodated downstairs in the restaurant. Whilst the requirements of the case of British Homes Stores v Burchell [1978] ICR 327 were complied with in relation to the previous disciplinary offence, they most certainly were not even considered in relation to the events of 4 August 2012. Neither was there any consideration of whether or not the alleged behaviour of the claimant was a sufficient reason for his dismissal. The tribunal has no hesitation in considering that no reasonable employer would have dismissed the claimant for his conduct in the events of 4 August 2012.
11. CALCULATION OF COMPENSATION
Basic Award
The claimant did not receive any payslips from the respondent but his oral evidence to the tribunal was that he estimated in the 14 week period proceeding his dismissal, whilst he worked varying numbers of hours, he would have received £350.00 gross per week and £250.00 net per week. As he was 28 years of age at the time of dismissal and had worked one year with the respondent, these facts attract a multiplier of one.
On a substantive basis the calculation of the basic award would have been as follows:-
£350.00 x 1 x 1 = £350.00
However, the tribunal considers that as the claimant was procedurally unfairly dismissed he is entitled to an uplift in respect of his basic award to the sum of 4 weeks gross pay which is £1,400.00.
Compensatory Award
Immediate Loss
The claimant was dismissed on 5 August 2012 and has not been able to replace his lost wage from that date to the date of the hearing.
This is a period of 25 weeks and the tribunal considers that his immediate loss is calculated as follows:-
£250.00 (net weekly wage) x 25 weeks = £6,250.00
Future Loss
The claimant has been trying to replace his employment but has found it difficult in the current economic circumstances. However, he considered that a period of 26 weeks would give him a good opportunity to replace this lost employment.
Consequently, the tribunal awards future loss calculated as follows:-
26 x £250.00 = £6,500.00
Loss of Statutory Rights
The claimant is going to have to once more accrue the right not to be unfairly dismissed. The tribunal awards the sum of £250.00 in respect of this head of damage.
|
|
Compensatory Award: |
|
|
|
|
|
|
|
Immediate Loss: |
£6,250.00 |
|
|
|
|
|
|
Future Loss: |
£6,500.00 |
|
|
|
|
|
|
Loss of Statutory Rights: |
£250.00 |
|
|
|
|
|
|
Total: |
£13,000.00 |
12. UPLIFT
The tribunal is entitled to uplift the compensatory award to reflect a failure to comply with the statutory disciplinary procedures. In the circumstances of this case, the tribunal considers that it is justified in awarding the maximum uplift of 50%. This was not a case in which the employer did not know what to do and that makes its failure to comply extremely flagrant. Therefore, the compensatory award is uplifted by 50% and the total compensatory award is therefore £19,500.00.
|
|
Basic Award: |
£1,400.00 |
|
|
|
|
|
|
Compensatory Award + Uplift: |
£19,500.00 |
|
|
|
|
|
|
Total Award: |
£20,900.00 |
14. RECOUPMENT
Recoupment does not arise in this case as the claimant has not claimed any Social Security benefits.
15. INTEREST
Interest in accordance with the Industrial Tribunals (Interest) Order (Northern Ireland) 1990 applies in respect of this award.
Chairman:
Date and place of hearing: 25 January 2013, Belfast.
Date decision recorded in register and issued to parties: