Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Silvinskas v Gary McBrien Mary Elizabeth Sweeney (in IVA... Ruairi Sweeney Robert Armstrong and C B Armst... [2013] NIIT 00682_12IT (25 October 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/682_12IT.html
Cite as: [2013] NIIT 00682_12IT, [2013] NIIT 682_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 682/12

CLAIMANT: Darius Slivinskas

RESPONDENTS: 1. Gary McBrien

2. Mary Elizabeth Sweeney (in IVA)

3. Ruairi Sweeney

4. Robert Armstrong and C B Armstrong,

t/a as Squires Bar and Restaurant

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and we order the first-named respondent to pay to the claimant the sum of £6,973.82 as set out at paragraph 9 of this decision.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Ms N Wright

Mr M Grant

Appearances:

The claimant was represented by Ms Leanne Cooey, Barrister-at-Law instructed by John Quinn and Co. Solicitors.

None of the respondents appeared or were represented.

1. At the outset of the hearing Ms Cooey made me aware that checks had shown that Mrs Sweeney, the second-named respondent was now in a voluntary arrangement and I therefore direct that the title of the second-named respondent be amended to read Mary Elizabeth Sweeney (in IVA).

2. The claimant was employed as a Chef at Squires Restaurant in Enniskillen from 7 July 2006 to 24 January 2012. Initially his employer was a man named Wesley Creighton who subsequently sold the business to the second and third-named respondents. They continued to own the premises but in the summer of 2010, Gary McBrien the first-named respondent took over the premises from the second and third-named respondents. On 24 January 2012, the first-named respondent closed the business. All of the staff apart from the claimant were told that they were being made redundant. The first-named respondent told the claimant at that stage that someone else was taking over the business and that his job was safe but this did not occur. The business remained closed until 7 April 2012 when the claimant became aware that the business had reopened and at that stage was being run by the fourth respondent. He went to the premises to enquire and was told by a bar man whom he knew that a relation of the fourth respondent was employed as Chef. At that stage the claimant went to the third-named respondent who told him that if there was no place for the claimant at Squires he could go to work at the third-named respondent’s restaurant, Franco’s Pizzeria. The claimant was unhappy with this option and decided not to take up the job at Franco’s. He had received no contact from the first-named respondent apart from the P45 which the first-named respondent had given him at the end of January when the business closed, and we find that he was dismissed by the first-named respondent at that date.

3. The claimant remained in Northern Ireland until the summer of 2012 when he returned to Lithuania and started another job in August of 2012.

4. The claimant indicated that he had taken four weeks’ holiday in 2011 and he indicated therefore that the only holidays which were outstanding were the holidays he had accrued during the month of January 2012. For the 13 weeks before the business closed, the claimant’s average net pay was £383.10 per week. His gross weekly pay was approximately £500 per week. At the date of his dismissal the statutory maximum pay which is recoverable in relation to unfair dismissal was £400 per week.

5. The claimant had five complete years service at the date of his dismissal and his date of birth was 5 October 1985. Accordingly, he was aged 26 at the date of dismissal.

THE RELEVANT LAW

6. The relevant law in relation to unfair dismissal is to be found at Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996. In particular we refer to Article 130 of the Order, which specifies that an employee is to be considered automatically unfairly dismissed if the dismissal and disciplinary procedures have not been followed and the non-completion of the procedures is wholly or mainly attributable to failure by the employer to comply with its requirements. Ms Cooey also drew our attention to the fact that failure by an employer to follow a procedure in relation to dismissal of an employee is not to be regarded for the purposes of Article 130(4)(A) as by itself making the employer’s action unreasonable, if the employer shows he would have decided to dismiss the employee anyway if he had followed the procedure.

7. Ms Cooey also directed us to the relevant provisions of Article 17 of the Employment (Northern Ireland) 2003 which permits an uplift to be made to the compensatory award for the respondent’s failure to comply with the statutory dismissal and disciplinary procedure.

DECISION AND REASONS

8. We are satisfied that in this case the correct employer is the first-named respondent, Gary McBrien. This is based on the bank statements which we were shown and also the fact that a response was lodged by Mr McBrien which acknowledged that the claimant had been his employee, but then alleged that the claimant had transferred to a new employer, i.e. the third-named respondent or the new owners of the business, the fourth-named respondents, by virtue of the provisions of the Transfer of Undertakings Regulations.

9. We do not accept that the claimant’s employment transferred when the business at Squires closed. It is clear to us that there was some uncertainty as to the claimant’s position and he had been told by Mr McBrien that his employment would transfer to the new owner of the business. This did not however occur and the claimant was left without any job. We appreciate that there was period of uncertainty for the claimant and so we believe that it would fair to compensate him in relation to his loss for an initial period following his dismissal on 24 January 2012. However, the claimant himself told us that he was offered alternative employment by the third-named respondent no later than April 2012 and the claimant decided not to take this job. Accordingly, we do not believe it would be appropriate to compensate him for loss which he incurred after that date.

10. We order that the first-named respondent pay to the claimant the following amounts:-

Basic Award

The claimant’s average take-home pay while working for the first-named respondent was £383.10. His gross pay was approximately £500 per week, and this is subject to the statutory cap at the time of £400 per week. A day’s pay was £76.62.

He was aged 26 at the date of dismissal and had five complete years service, one of them under the age of 22. The basic award is therefore calculated as follows:-

0.5 x 1 x £400 = £200

1 x 4 years x £400 = £1,600 £1,800.00

Holiday pay

The claimant had eight days holiday untaken for the previous holiday year ending on 31 December 2011 and had accrued 2.3 days holidays in the month of January 2012. This is rounded up to three days. His total holiday entitlement accrued but not taken was therefore 11 days.

11 x £76.62 = £ 842.82

Loss of earnings – 24 January 2012 to 7 April 2012 is:-

Compensatory Award

10 weeks x = £3,831.30

Loss of statutory rights = £ 500.00

Total Compensatory award = £4,331.30

Total Award = £6,974.12

The claimant received Jobseekers allowance of £67.50 per week after his employment terminated. This is therefore a relevant decision for the purposes of the Recoupment Regulations. The protected period is from 24 January 2012 to 7 April 2012. The amount of the compensatory award which applies to the protected period is £3,831.30. The amount by which the compensatory award exceeds the protected amount is £500.00.

11. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 15 October 2013, Belfast.

Date decision recorded in register and issued to parties:

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