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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mullin v Shane Kealey t/a North West In... [2013] NIIT 00817_13IT (06 September 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/817_13IT.html
Cite as: [2013] NIIT 817_13IT, [2013] NIIT 00817_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 817/13
CLAIMANT: Ciaran Mullin
RESPONDENT: Shane Kealey t/a North West Independent Testing Services
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed by the respondent for asserting his statutory right to written terms and conditions of employment and we order the respondent to pay the claimant the sum of £3,163.19 as set out in this decision.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mrs D Adams
Mr H Fox
Appearances:
The claimant was represented by Mr Casey of Casey and Company Solicitors.
The respondent appeared in person.
ISSUES
1. The issue for the tribunal to consider was whether the claimant had been unfairly dismissed by the respondent due to him having asserted his statutory right to written terms and conditions of employment contrary to Article 15 of the Employment Rights (Northern Ireland) Order 1996 or whether he had been dismissed for some other reason.
THE FACTS
2. We heard evidence from the claimant and from the respondent. There was a substantial conflict of evidence between the two parties and we set out below what we considered to be the relevant findings of fact in relation to the issues in this case.
2.1 The claimant was employed by the respondent as a Technician from 19 November 2012 until 30 January 2013. The respondent confirmed that the correct title of the respondent was “Shane Kealey t/a North West Independent Testing Services”, and accordingly we order that the name of the respondent shall be amended accordingly.
2.2 There was a dispute between the parties as to the correct rate of pay for the job. The respondent indicated that the salary was £16,000 and that this was the rate the claimant had been paid. The claimant produced an email (sent by the respondent to the claimant prior to him taking up the job) which showed the salary as £17,000 per annum, but the respondent indicated this was the rate for the manager’s job. He said that the “going rate” for the technician’s job was £16,000 per annum and that this was the amount that the claimant had actually been paid. The claimant did not pursue this matter any further and did not pursue any evidence of the correct figures for his gross net pay at the rate of £17,000 per annum. Accordingly we find that his salary was £16,000 per annum.
2.3 There was conflict of evidence between the parties as to how their working relationship had progressed. The respondent’s case was that the standard of the claimant’s work was not good, that he had been disappointed in his work and had in fact discovered while the claimant was employed with him that the claimant had misrepresented his work experience on his curriculum vitae. He also indicated that the claimant had not been frank with him in relation to penalty points on his driving licence, although the job advertisement stipulated a clean driving licence was required. The respondent indicated that at the interview, and when he offered the job to the claimant, he made it clear that there was a trial period of 12 weeks. The claimant denied this, saying that he understood he had been offered a full-time permanent job. Indeed, he had turned down other offers of work at around the same time, which he would not otherwise have done, if he thought the job was a temporary post. He modified this at the hearing to say that he believed he had been offered a one year fixed-term contract. It is clear however that the Job Centre advertisement which the claimant responded to in relation to the post did not indicate that it was a short term contract. There was no mention of a trial or probationary period, but we note that this would not often be included in a job advertisement.
2.4 Under cross-examination, the respondent indicated that his practice was to give a job to someone on a temporary contract which would be renewed every three months. He also indicated that no written terms and conditions would be provided to an employee until the temporary period had been completed and this was in his view an appropriate practice. He also indicated that since this case had occurred, he now provided new staff with written terms and conditions on the basis that they would have a temporary contract. Previously, however, he said that there was “no way” he would issue a temporary contract before a trial period was up and until he knew whether or not the person concerned would be “good enough” to remain in the job.
2.5 The claimant indicated that this had not been his understanding of the basis of his employment. He said that he had asked the respondent on a weekly basis for written terms and conditions of employment and had not received a satisfactory response. He also indicated that he had not received any payslips. Over the Christmas period, the claimant had not received any holiday pay and he had asked the respondent for holiday pay but had been refused. He also said that he had checked the position with the Citizens Advice Bureau and had again approached the respondent about his written terms and conditions on a Monday at the end of January 2013. The respondent’s reply was that he would get on to it.
2.6 The next day, the claimant’s evidence was that he had been speaking to another employee about the holiday pay and contract issue. This employee was the respondent’s brother. There was a conflict of evidence between the parties in relation to this matter. The respondent’s evidence was that the claimant had approached his brother Kevin Kealey who was also an employee of the respondent. Kevin Kealey had then telephoned the respondent saying that the claimant was asking for his accountant’s telephone number so that he could raise the issue of holiday pay with the accountant. The claimant indicated that he had simply enquired from Kevin Kealey whether or not he had a contract and whether he had received holiday pay. Either way, the significance of this is that within a couple of hours, the claimant had received a telephone call from the respondent, sacking him from his post. The respondent’s account of this telephone conversation was that he had had enough of the claimant refusing to take instruction, refusing to do his job properly and generally not behaving as a responsible employee, despite repeated requests. The claimant indicated that he had received little or no training and that he had not received any criticism of his work. It is extremely difficult for us to make a finding in relation to those issues. However, we can and do find that the claimant was dismissed a couple of hours after raising with the respondent’s brother issues relating to terms and conditions of employment and holiday pay, and we also find that the claimant raised this issue verbally with the respondent the previous day (28 January). The claimant had been asked to come and see the respondent on 30 January, which he did. On that day, he sent texts to the respondent seeking his terms and conditions of employment. The respondent’s view of this was that the claimant had done this to “set up” a claim for automatic unfair dismissal. We do not accept this, as we accept the claimant’s evidence that he had previously raised the question of the contract of employment with the respondent verbally on a number of occasions.
THE RELEVANT LAW
3. The relevant law in relation to unfair dismissal is set out at Article 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). In this particular case the claimant did not have one year’s service to ground a claim for unfair dismissal and so is relying on Article 135 of the 1996 Order which reads as follows:-
“135 (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee -
(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or
(b) alleged that the employer had infringed a right of his which is a relevant statutory right.
(2) It is immaterial for the purposes of paragraph (1) -
(a) whether or not the employee has the right; or
(b) whether or not the right is being infringed;
but, for that paragraph to apply, the claim to the right and that it has been infringed must be made in good faith.
(3) It is sufficient for paragraph (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.
(4) The following are relevant statutory rights for the purposes of this Article -
(a) any right conferred by this Order for which the remedy for its infringement is by way of a complaint or reference to an industrial tribunal,…”
3.1 The right to written terms and conditions of employment is set out in Article 33 of the 1996 Order and that right may be enforced before the industrial tribunal under Article 43 of the 1996 Order.
3.2 In relation to the issue of procedural fairness regarding the dismissal, the relevant legislation is Article 130 of the 1996 Order which provides as follows:-
“130A (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -.”
(a) one of the procedures set out in Part I of Schedule I to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed; and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of the employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”
3.3 Article 146 of the 1996 Order has been amended to provide that an industrial tribunal shall make an award of four weeks’ pay to be paid by the employer to the employee if the correct procedures have not been followed. However an industrial tribunal is not required to make an award under this article if it considers that such an award would result in injustice to the employer (Article 146(6)).
3.4 Furthermore under Article 17 of the Employment (Northern Ireland) Order 2003 the tribunal has discretion, where the statutory disciplinary procedures apply, to increase any award which it makes to an employee by between 10 and 50% where the employer has failed to comply with a requirement of the procedure. The amount to be awarded is such that the tribunal considers “just and equitable in all the circumstances”.
DECISION
4.1 We have considered the evidence before us. We are aware that it is in some ways contradictory and we do not feel that either the claimant or the respondent has been entirely forthright with us. However, we are persuaded that the reason why the claimant was dismissed on 29 January 2013 was that he had asserted his right to written terms and conditions of employment and that he had been refused these. We therefore find that the claimant was unfairly dismissed for asserting a statutory right.
4.2 The claimant’s evidence was that he had found temporary work for three weeks from 8 March 2013 until 29 March 2013. He claimed Jobseeker’s Allowance at £71.00 per week for approximately 10 weeks, both following his employment and following the period of temporary work, until he found a full-time position starting on 8 May 2013. His salary in that new job is £16,000.00 per annum.
4.3 We were also satisfied that the claimant had been paid any holiday pay due to him and was in fact paid to the end of the week that he was dismissed. Accordingly, we believe that the award to be made to the claimant is as follows:-
Loss of pay from 31 January 2013 to 7 March 2013 and 31 March 2013 to 8 May 2013.
10 weeks’ pay @ £288.29 per week = £2,882.90
Notice pay: 1 week £280.29
Total award: £3,163.19
4.4 The claimant was in receipt of Jobseeker's Allowance between 31 January 2013 and 7 March 2013 and again from 30 March 2013 to 7 May 2013. The amount of the compensatory award which relates to this period is £2,882.90. The protected period is from 31 January 2013 to 7 March 2013 and from 30 March 2013 to 7 May 2013 the amount by which the compensatory award exceeds the protected award is £280.29.
4.5 This is a decision to which the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 (as amended) apply.
3.11 In light of the conflict of evidence in relation to these matters between the parties and given also that we believe that the claimant was not entirely straightforward with the respondent in relation to matters regarding his Curriculum Vitae and the penalty points from his driving licence, we do not consider it to be just and equitable in all the circumstances of the case to award any uplift.
3.12 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21 August 2013, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 817/13
CLAIMANT: Ciaran Mullin
RESPONDENT(S): Shane Kealey t/a North West Independent Testing Services
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.
|
|
|
|
(a) Monetary award |
£3,163.19 |
|
(b) Prescribed element |
£2882.90 |
|
(c) Period to which (b) relates: |
31 January 2013 to 7 March 2013 and 30th March 2013 to 7th May 2013 |
|
(d) Excess of (a) over (b) |
£280.29 |
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 respond 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.