Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    118/14

 

 

CLAIMANT:                          Gary Goligher

 

RESPONDENT:                  Ian Doherty T/A Woodvale Interiors

 

 

 

DECISION

 

The unanimous decision of the tribunal is the claimant was unfairly dismissed, the respondent shall pay him £1,726.80 in respect thereof.  When proceedings were commenced the respondent was in breach of his duty to provide the claimant with a written statement of employment particulars and shall pay the claimant £555.20 in respect thereof.  The claimant is not entitled to a redundancy payment or a payment in lieu of notice and his claims in respect thereof are dismissed.  The respondent shall pay the claimant in total £2,282.00.

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge Bell

 

Members:                             Mrs D Adams

                                                Mr R Hanna

 

 

Appearances:

 

The claimant was represented by Mr Thomas Henry of Limavady Community Development Initiative.

 

The respondent was self-represented.

 

 

1.            The claimant complained in his claim that he had been unfairly dismissed by the respondent, that he was given on 30 November 2013 wages due and his P45 and informed by the respondent that he could not afford to pay him the pay rise agreed with him on 16 November 2013, as a result of which the claimant had turned down a job opportunity at a higher pay rate.  The claimant also sought a redundancy payment and notice pay.  At hearing the claimant confirmed that on a finding of unfair dismissal he sought no compensatory award for loss of earnings.

 

2.            The respondent in his response disputed the claimant’s dismissal and denied the claimant’s claims, in particular setting out that on telling the claimant that he could simply not afford the pay rise he stressed that he did not wish that the claimant would leave his job and his job remained there for him but at the original rate of pay, that the claimant said he would let the respondent know his decision but did not return to work or contact him again.

 

3.            It was confirmed at the outset of the hearing that the correct title of the respondent is Ian Doherty T/A Woodvale Interiors and the title of the proceedings is accordingly amended from ‘1. Woodvale Interiors 2. Ian Doherty’ to ‘Ian Doherty T/A Woodvale Interiors.’

 

 

ISSUES

 

4.            The issues to be determined by the tribunal were:-

 

·                     What were the correct dates of the claimant’s employment?

 

·                     Who terminated the contract of employment?

 

·                     If the claimant resigned was he constructively dismissed? 

 

·                     If the claimant was dismissed, was the dismissal unfair?

 

·                     Was the claimant dismissed by reason of circumstances falling within the statutory definition of a redundancy situation and so entitled to a redundancy payment?

 

·                     Has the respondent failed to give the claimant statutory minimum notice required to terminate the contract of employment?

 

·                     When proceedings were commenced was the respondent in breach of his duty to provide a written statement of employment particulars within two month from the date of commencement?

 

 

SOURCES OF EVIDENCE

 

5.            The tribunal considered the claim, response and sworn oral testimony from the claimant and respondent. 

 

 

FINDINGS OF FACTS RELEVANT TO THE ISSUES

 

6.            The claimant was employed by the respondent as a carpenter from February 2007 until 30 November 2013.  The claimant had previously worked for the respondent from September 2002 but had a break in his continuity of employment before he recommenced working for the respondent in February 2007.  The claimant was a highly regarded and valued member of the respondent’s staff.

   

7.         On Monday 11 November 2013 the claimant informed the respondent that he would be leaving on Friday 15 November 2013 in order to start a new job at a higher rate of pay and requested his P45 which the respondent asked his accountant who prepares employee wage slips to attend to.  The respondent asked that the claimant give longer notice but the claimant informed him he did not have to as he did not have a contract of employment.  After leaving his job on 15 November 2013 the claimant and respondent met on Saturday 16 November 2013 and the respondent negotiated the claimant’s return to work on Monday 18 November 2013 by agreeing to pay him an additional £60 net per week.  The respondent informed his accountant that the claimant was returning to work and was advised that the agreed pay rise would cost the respondent almost £100 extra per week and that employers are legally required to provide a statement of employment particulars to employees.  The respondent asked his accountant to prepare a contract of employment but the respondent did not at any time issue a statement of employment particulars to the claimant.  The claimant in the meantime turned down his alternative job offer and continued to work for the claimant for the remainder of November.

 

8.         On Saturday 30 November 2013 the claimant approached the respondent for payment of his wages for November.  The respondent informed the claimant that after speaking with his accountant he could not afford to pay the agreed pay rise.  The respondent gave the claimant an envelope with wages due for November (including two weeks at the higher rate) and P45 prepared by the accountant for 15 November 2013.  After a brief conversation between the parties and indication by the claimant to the respondent that the other job offered to him at higher pay would no longer now be open to him, the claimant left.  There was a dispute in the evidence of the parties as to how the contract of employment was terminated.  The claimant contended at hearing that on being given the envelope and asked if the other job would still be open to him he believed that he was being made redundant, felt betrayed, and the meeting ended abruptly with him walking away.  Whereas the respondent contended that the claimant was devastated on receipt of the news that he could not afford to pay him the higher rate and told the respondent that he was counting on the extra money for Christmas and asked ‘what am I going to do?’, to which the respondent replied the claimant had two options, to take the other job previously offered to him or to come back to work for the respondent on Monday at his original rate of pay.  The respondent contended that on handing over the envelope of wages to the claimant he told him ‘that’s your P45 that you were looking for’, which had been prepared by the accountant in response to the claimant’s request for it on 11 November 2013 and forwarded to the respondent with the wages prepared.  The respondent put that he stressed it was not his wish for the claimant to leave his job and it was still there at the original rate of pay which the claimant said he would take on board and let the respondent know his decision but never returned to him or to work for the respondent.  As set out below, the tribunal on balance find more credible the respondent’s evidence and find as a fact that a job remained for the claimant albeit at the original rate of pay, that this was expressed to the claimant, and that the enquiry made by the respondent as to the availability of the other job was by way of putting a second option to the claimant if unhappy at reverting to his original pay rate.

 

9.         The claimant on returning home on 30 November 2013 opened the envelope he had been given and noted that the P45 therein was dated 15 November 2013.

 

10.      On the evening of 30 November 2013 the claimant called to the respondent’s house and asked was there nothing more the respondent could do for him.  The respondent said no.

 

11.      The claimant over the weekend made a number of calls seeking alternative employment from people he knew and arranged on Sunday 1 December 2013 to commence working as a workshop joiner the following day for a family member.  No evidence of the claimant’s earnings since 2 December 2013 in his new job were adduced.

 

12.      No case was made at hearing or evidence adduced of any alleged unfair treatment of the claimant by the respondent prior to 30 November 2013.

 

13.      At 30 November 2013 the claimant was paid £277.60 gross per week being £242.97 net.

 

14.      The claimant presented his complaint to the Office of the Tribunals on 7 January 2014.

 

15.       The claimant sought compensation only by way of remedy.

 

 

LEGISLATION

 

16.      Under Article 126 of The Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.  An employee does not qualify for the right however under Article 140 (1) unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.  Under Article 6 there is a presumption of continuity unless the contrary is shown and any question whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment are to be determined week by week and (save as provided therein) a week which does not count in computing the length of a period of continuous employment breaks continuity of employment

 

17.      Circumstances in which an employee is dismissed by his employer include at Article 127(c) of the 1996 Order if the employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.  Whether an employee is entitled to terminate his contract of employment is to be determined in accordance with contract law.  It is established in case law that it is not enough for the employee to leave merely because his employer acted unreasonably but is a question of whether his employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or, which shows that the employer no longer intends to be bound by one or more essential terms of the contract.

 

18.      Harvey on Industrial Relations and Employment Law /Division D1 Unfair Dismissal/3 discusses termination by the employee/constructive dismissal at paras [401]-[600].  At paragraph [403] Harvey sets out that in order for an employee to be able to claim constructive dismissal four conditions must be met:

 

            ‘(1)      There must be a breach of contract by the employer.  This may be an actual breach or anticipatory breach.

 

            (2)       That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.  Possibly a genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

            (3)       He must leave in response to the breach and not for some other, unconnected reason.

 

            (4)       He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.’

 

19.      Article 130(1) of the 1996 Order provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

 

(a)           the reason (or, if more than one, the principle reason) for the dismissal, and

 

(b)       that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) under Article 130(4) of the 1996 Order-

(a)       depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b)       shall be determined in accordance with equity and the substantial merits of the case.

 

20.      Where an Industrial Tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the Orders it may make by way of remedy are set out at Article 146 of the 1996 Order and include reinstatement, or re-engagement, and otherwise compensation.  How compensation is to be calculated is set out at Articles 152 to 161 of the 1996 Order.

 

21.      Under Article 157 of the 1996 Order the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to the action taken by the employer.  

 

22.      Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy.  Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include the fact that his employer has ceased or intends to cease to carry on the business for the purpose of which the employee was employed by him, or, to carry on that business in the place where the employee was so employed, or the fact that the requirements of that business for employees to carry out work of a particular kind, or, for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.

 

23.      Under Article 118B of the Employment Rights (Northern Ireland) Order 1996 an employer is required to give minimum notice to terminate the contract of employment of a person of not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

 

24.      Article 33 of the 1996 Order provides that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment not later than two months after the beginning of the employment.  Under Article 27 of The Employment (Northern Ireland) Order 2003 in proceedings before an industrial tribunal in respect of specified jurisdictions listed in Schedule 4 (which include unfair dismissal, redundancy payments and breach of employment contract and termination) if the tribunal makes an award to the employee in respect of the claim, and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33 of the 1996 Order the tribunal shall increase the award by the minimum amount equal to two week’s pay to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount equal to four week’s pay instead.  The tribunal’s duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.

 

 

APPLICATION OF LAW TO FACTS FOUND

 

What were the correct dates of the claimant’s employment?

 

25.      It was the respondent’s contention that he did not agree to continue to employ the claimant on 16 November 2013.  The tribunal finds that there has been no interruption in the claimant’s employment when considered week to week and his periods of employment from February 2007 to 15 November 2013 and 18 November 2013 to 30 November 2013 form a single period of continuous employment.  Accordingly at his effective date of termination on 30 November 2013 the claimant had more than one year’s continuous employment and qualifies for protection against unfair dismissal.

 

Who terminated the contract of employment?

 

26.      The claimant in his evidence confirmed he noted the P45 after he went home was dated 15 November 2013 which was the date he had earlier proposed to leave and had requested that his P45 be prepared for, also that when he called with the respondent for a second time on 30 November and asked was there nothing the respondent could do for him he meant his job at the higher rate of pay.  The tribunal found on balance more credible the respondent’s evidence and find as a fact that the claimant’s job with the respondent remained for him albeit at his original lower rate of pay and that this was expressed to the claimant.  As such the tribunal find that the claimant terminated the contract of employment by not returning to work with the respondent on Monday 2 December but instead sought and commenced a new job.

 

If the claimant resigned was he constructively dismissed? 

 

27.      The respondent clearly breached an expressly agreed contractual term in respect of pay which the tribunal are satisfied was an essential term and amounted to a fundamental and repudiatory breach which went to the heart of the employment relationship and the claimant accepted by not returning to work with the respondent.  The tribunal are satisfied the breach was the real reason for the claimant’s resignation and there was no delay by the claimant or affirmation of the breach.  As such the tribunal find that the claimant terminated his contract of employment with the respondent in circumstances in which he was entitled to do so without notice falling within Article 127 of the 1996 Order by reason of the respondent’s behaviour and so was constructively dismissed.

 

If the claimant was dismissed, was the dismissal unfair?

 

28.      The dismissal was disputed by the respondent.  No prima facie fair reason was put forward in the alternative or has been established by the respondent for the claimant’s dismissal under Article 130 of the 1996 Order and the tribunal find that the claimant’s constructive dismissal was unfair.

 

29.      The claimant sought compensation by way of remedy.  Only a basic award and compensation for loss of statutory rights was sought, the claimant did not wish to make a claim for loss of earnings.  The respondent shall pay the claimant compensation as follows:

 

            Basic Award

 

            Calculated in accordance with Article 153 of the 1996 Order:

 

            1 year   x   ½   x   £277.60         =       £138.80

 

            5 years   x   1   x   £ 277.60       =    £1,388.00

                                                                                                            =          £1,526.80

 

            Compensatory Award

 

LOSS OF EARNINGS

 

No compensation was sought by claimant for loss of earning from his effective date of termination.

 

LOSS OF STATUTORY RIGHTS

 

The tribunal consider it just and equitable to award £200 in respect of the claimant’s loss of statutory rights.

 

Was the claimant dismissed by reason of circumstances falling within the statutory definition of a redundancy situation and so entitled to a redundancy payment?

 

30.      The tribunal accept that the claimant’s job with the respondent remained open to him and find that the claimant was not dismissed by reason of circumstances falling within the statutory definition of a redundancy situation and is not entitled to a redundancy payment under Article 170 of the 1996 Order.  (A redundancy payment would in any event be set off against an unfair dismissal basic award.)

 

Has the respondent failed to give the claimant statutory minimum notice required to terminate the contract of employment?

 

31.      The tribunal are satisfied that the claimant terminated the contract of employment and find that the respondent did not fail to provide the claimant with notice contrary to Article 118B of the 1996 Order.

 

When proceedings were commenced was the respondent in breach of his duty to provide a written statement of employment particulars within two months from the date of commencement?

 

32.      On the respondent’s own evidence he did not provide to the claimant a written statement of employment at any time and the tribunal find that the respondent was in breach of his duty under Article 33 of the 1996 Order and in light of the award made for unfair dismissal the tribunal must under Article 27 of the 2003 Order increase the award to the claimant by a minimum of two week’s gross pay.  The tribunal are not persuaded that it would be just and equitable in all the circumstances of this case to instead award the higher amount equal to four week’s pay nor that that there are exceptional circumstances which would make an award unjust or inequitable.  The respondent shall pay to the claimant £555.20 in respect thereof.

 

 

CONCLUSION

 

33.      The tribunal find that the claimant terminated his contract of employment with the respondent in circumstances in which he was entitled to do so without notice by reason of the respondent’s behaviour and was constructively dismissed.  The claimant’s dismissal was unfair under Article 130 of the 1996 Order and the respondent shall pay the claimant £1,726.80 in respect thereof.  When proceedings were commenced the respondent was in breach of his duty to provide the claimant with a written statement of employment particulars and shall pay the claimant £555.20 in respect thereof.  The claimant is not entitled to a redundancy payment or a payment in lieu of notice and his claims in respect thereof are dismissed.  The respondent shall pay the claimant in total £2,282.00.

 

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

 

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:    25 March 2014, Belfast.

 

Date decision recorded in register and issued to parties: