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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Costa v S & S Hygiene [2013] NIIT 00908_12IT (04 January 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/908_12IT.html
Cite as: [2013] NIIT 908_12IT, [2013] NIIT 00908_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 908/12
CLAIMANT: Joao Costa
RESPONDENT: S & S Hygiene
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed. He is entitled to compensation in the sum of £19,230.73 to include £220.00 in respect of notice pay. This award is subject to the attached recoupment notice.
Constitution of Tribunal:
Chairman: Mrs A Wilson
Members: Mr I Savage
Mr P Kearns
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented. In any event no appearance was entered by or on behalf of the respondent and so the respondent would have no entitlement to take any part in the proceedings.
1. The tribunal considered the IT1, the claimant's sworn testimony and documents handed in during the hearing.
2. The claimant was employed by the respondent for one full year. He was employed from 2 July 2010 until his employment was terminated without notice on 21 February 2012.
3. No procedures whatsoever were followed in connection with the dismissal of the claimant. In these circumstances and in the absence of evidence from the respondent as to whether the claimant would have been dismissed even if procedures were followed the tribunal find that the claimant was automatically unfairly dismissed in accordance with Article 130A of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order").
4. In the alternative it is for the respondent to establish the reason for the dismissal and that it was a potentially fair reason. The tribunal has no evidence from the respondent in this regard and so cannot be satisfied that the claimant was dismissed for a fair reason within the meaning of Article 130 of the 1996 Order. In these circumstances the tribunal is satisfied that the claimant was unfairly dismissed.
5. The claimant is entitled to compensation calculated as follows:
BASIC AWARD
6. In accordance with Article 153 of the 1996 Order the claimant is entitled to a basic award of £257.12 (gross pay) x 1.5 weeks = £385.68.
COMPENSATORY AWARD
7. In accordance with Article 157 of the 1996 Order the claimant is entitled to a compensatory award. The claimant has satisfied the tribunal that he has been actively and diligently seeking work and has made all reasonable efforts to mitigate his loss. He is currently unemployed and has been since the termination of his employment. The tribunal awards the following amounts in respect of lost pay:
Loss of pay from 21 February 2012 until 12 December 2012 (date of hearing) amounting to £9,472.90 (43 weeks x £220.30).
Future Loss
In current recessionary times the tribunal is satisfied that the claimant is likely to remain unemployed for another 3 months and awards the sum of £2,643.60 (£220.30 net pay x 12) in respect of future loss.
The tribunal awards the sum of £300.00 in respect of loss of statutory rights.
The claimant is entitled to a total compensatory award in the sum of £12,416.50.
8. The claimant is entitled to an uplift of his compensatory award in accordance with the Employment Rights (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004. In circumstances where the respondent summarily dismissed the claimant and failed to follow any procedures whatsoever (see paragraph 3) the tribunal awards the maximum uplift of 50%. The compensatory award is increased to £18,624.75. (50% of 12,416.50 = 6,208.25 + £12,416.50 = £18,624.75).
NOTICE PAY
9. The claimant was dismissed without notice in circumstances where he was entitled to one weeks notice. He is entitled to £220.30 representing of one week’s notice pay in accordance with Article 118 of the 1996 Order.
10. The tribunal awards the claimant the total sum of £19,230.73.
11. This is a relevant decision for the purposes of recoupment of benefit (job seekers allowance) received by the claimant in accordance with the Employment Protection (Recruitment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996 (the 1996 Regulations).
12. The 1996 Regulations require the tribunal to set out:-
(a) The monetary award;
(b) The amount of the prescribed element, if any;
(c) The dates of the period to which the prescribed element is attributable; and
(d) The amount if any by which the monetary award exceeds the prescribed element.
13. For the purposes of this case, the monetary award is £19,230.73.
14. The prescribed element is that amount of the monetary award which represents compensation for loss of earnings. In this case the prescribed element is £12,116.50.
15. The prescribed element is attributable to the period from 21 February 2012 to 12 December 2012.
16. The amount by which the monetary award exceeds the prescribed element is £19,230.73 less £12,116.50 = £7,114.23.
17. The attached Recoupment Notice forms part of the decision of the tribunal.
18. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman
Date and place of hearing: 12 December 2012, Belfast.
Date decision recorded in register and issued to parties
Case Ref No: 908/12
CLAIMANT: JOAO COSTA
RESPONDENT(S): S & S HYGIENE
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 |
£19,230.73 |
|
(b) Prescribed element |
£12,116.50 |
|
(c) Period to which (b) relates: |
21/02/12 to 12/12/12 |
|
(d) Excess of (a) over (b) |
£7,114.23 |
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 respondent 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.