Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Woodside v Robert Harrison and Simon Knox... [2013] NIIT 327_13IT (02 August 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/327_13IT.html
Cite as: [2013] NIIT 327_13IT
[New search] [Printable PDF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 327/13
CLAIMANT: Anton Woodside
RESPONDENT: Robert Harrison and Simon Knox t/a K & H Joinery
DECISION
The unanimous decision of the tribunal is as follows:-
1. That the claimant was automatically unfairly dismissed and the respondent is hereby ordered to pay the claimant compensation in the sum of £4238.10.
2. That the claimant is entitled to 1 weeks notice pay and the respondent is hereby ordered to pay to the claimant the sum of £269 (net).
3. That the claimant is entitled to unpaid wages for 61 hours and the respondent is hereby ordered to pay to the claimant the sum of £386.09 (net).
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr B Schofield
Mr T Wells
Appearances:
The claimant appeared and represented himself at the hearing.
The respondent did not appear at the hearing.
The Claims
1. The claims were a claim of unfair dismissal, a claim in respect of notice pay and a claim for unpaid wages.
The Issues
2. The issues to be determined by the tribunal in relation to the claim of unfair dismissal were:-
(a) 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; and, if appropriate;
(b) the compensation to be awarded to the claimant.
3. The issues 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.
4. The issues to be determined by the tribunal in relation to the claim for unpaid wages were whether the respondent failed to make payment to the claimant in respect of the wages claimed and if so, the amount due to the claimant.
The Respondent
5. The title of the respondent was amended to read ‘Robert Harrison and Simon Knox t/a K & M Joinery’ as this was the correct employer of the claimant.
Disposal of the claim in the absence of the respondent
6. The respondent did not appear at the hearing. The respondent had not lodged a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Sources of Evidence
7. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant. The tribunal also considered and took account of the content of the claim form submitted by the claimant.
Facts of the Case
8. Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-
9. The claimant was employed by the respondent as a joiner from 8 March 2011. Initially, the claimant was paid £7.00 per hour. He worked 42½ hours per week.
10. At the beginning of his employment, the claimant worked a “lying week” and it was agreed that he would receive the pay for this week at the end of his employment.
11. From time to time, the claimant had problems with his pay cheques being received late, but before the events which are the subject of this claim, the claimant always received his pay eventually.
12. In July 2012, the claimant received a pay rise with his pay rising to £7.50 per hour.
13. The claimant was on holiday from 27 December 2012 for 2 weeks for the Christmas break. He returned to work on Monday 7 January 2013. On that day, the claimant and a colleague were at a job together. They had to wait for Mr Harrison, one of the partners in the respondent, to arrive. He told the claimant and his colleague that he had no money for materials. Mr Harrison told them to go on home.
14. The next day Tuesday 8 January 2013, the claimant and his colleague worked as usual. That evening, the claimant’s colleague received a voicemail message from Mr Harrison saying that the respondent’s business was being closed up, that was it. The colleague phoned the claimant and told him to phone Mr Harrison. The claimant went to Mr Harrison’s door to talk to him. Mr Harrison told the claimant that he had no money and the claimant would have to sort out any issues with the insolvency company appointed by the respondent. Mr Harrison told the claimant not to come back, that there was no work. The claimant clearly understood from this conversation that his employment had ended with immediate effect. A number of other employees were also dismissed at this time.
15. The claimant has not received any pay for the pay for Friday 21 December 2012 nor did he receive any pay for the 1½ hours he worked on Monday 7 January 2013 nor the full day worked on Tuesday 8 January.
16. The claimant did not receive any letters regarding the termination of his employment. He was not invited to any meeting. He was not given any right of appeal.
17. Following his dismissal from the respondent, the claimant did not claim benefits. The claimant started a new job on 18 January 2013, but this lasted for 3 weeks only so that the claimant was out of work again in February. The claimant did not claim benefits. He then started work again after 5 weeks and remained in this job at the date of hearing. The claimant’s earnings in his new job are higher than those in his job with the respondent.
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) Order 1996 (“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. By article 154(1) (a) of the Order, where the employer is responsible for the non-completion of the statutory dismissal procedure, the basic award must be increased to 4 weeks pay unless the tribunal considers that this would result in injustice to the employer.
21. 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 compensatory award made to the employee by 10 per cent 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%.
22. 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.
23. By Article 45 of the Employment (Northern Ireland) Order 1996 (“the 1996 Order”), 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
24. In light of the facts found, the tribunal had no hesitation in concluding that none of the requirements of the statutory dismissal procedure were complied with in this case. In effect, the claimant’s employment was terminated verbally. This was a clear breach of the statutory dismissal procedure as described at paragraph 17 above. 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. 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.
Notice pay
26. It is clear from the facts found that the claimant received no notice of dismissal. He was dismissed with immediate effect. The claimant had been employed for a continuous period of 1 year at the date of his dismissal and he was therefore entitled to 1 weeks notice.
Unpaid wages
27. The tribunal found as a fact that the claimant did not receive any pay for the lying week worked at the commencement of his employment in respect of which he should have received pay at the end of his employment. He also received no pay for Friday 21 December 2012, for 1½ hours worked on Monday 7 January 2013 and a full day worked on Tuesday 8 January 2013.
Compensation for Unfair Dismissal
28. 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.
29. The claimant was out of work for the period between 9 January 2013 and 18 January and a further 5 weeks between February and March 2013. The tribunal considered it appropriate to award the claimant his loss of earnings for those periods.
30. The tribunal considered the appropriate uplift to the compensatory award for unfair dismissal pursuant to article 17 of the 2003 Order as described at paragraph 20 above. The respondent in this case failed to comply with any of the requirements of the statutory dismissal procedure. The claimant was effectively dismissed verbally. Accordingly, 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 higher 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%.
31. 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
Minimum of 4 weeks pay due to breach of the statutory dismissal procedure
£7.50 x 42 ½ (gross weekly wage) X 4 = £1275
(B) Compensatory award
Immediate loss to date of hearing:-
6 weeks and 3 days x £269 (net weekly wage) = £1775.40
Future loss of earnings: - NIL
Loss of statutory rights £ 300
Total compensatory award for unfair dismissal (B) = £1775.40
Increase in monetary award of 50% ADD £ 887.70
TOTAL compensatory award after increase = £2663.10
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 total sum of £4238.10.
32. The claimant is also entitled to 1 weeks pay in respect of notice pay calculated as follows:-
Award in respect of notice monies 1 x £269 (net weekly pay) = £269.
33. In addition, the claimant is entitled to payment in respect of unpaid wages calculated as follows:-
Lying week = 42½ hours
21 December = 8½ hours
7 January = 1½ hours
8 January = 8½ hours
Total = 61 hours
Net pay for 42 ½ hours = £ 269
Net pay for 61 hours = 61/42 ½ x £269 = £ 386.09
Award in respect of unpaid wages = £ 386.09
34. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 11 June 2013, Belfast.
Date decision recorded in register and issued to parties:
.gif)