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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Grzeskowiak v Talbot Maintenance 29 Ltd [2014] NIIT 1580_13IT (27 January 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1580_13IT.html
Cite as: [2014] NIIT 1580_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1580/13
CLAIMANT: Beniamin Grzeskowiak
RESPONDENT: Talbot Maintenance 29 Ltd
DECISION
1. The respondent unfairly dismissed the claimant.
2. The respondent is ordered to pay the claimant an award totalling £7,514.78.
Constitution of Tribunal:
Chairman sitting alone: Mr H Travers
Appearances:
The claimant was unrepresented and appeared in person assisted by an interpreter.
The respondent was not represented other than as set out under the preliminary issue below when it was represented by Michelle Brown barrister.
REASONS
Preliminary issue
1.
The claim form was received at
the Office of the Industrial Tribunals on
2 September 2013. Under cover of a letter dated 12 September 2013, the tribunal
sent a copy of the claim form to the respondent.
2. In accordance with usual practice the letter informed the respondent that: ‘If you wish to respond to the claim made against you, you must present your response to the Office of the tribunals within 28 days from the date of this letter…If your response is not received by 10 October 2013 and no extension of time has been agreed by a Chairman, you will not be entitled to resist this claim.’
3. Subsequently, the respondent neither filed a response nor applied for an extension of time for doing so.
4. The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 as amended, at Schedule 1 rules 4, 8 and 9 set out the procedural requirements concerning the presentation of a response and the consequences of failing to do so.
5. Under rule 4(1), if a respondent wishes to respond to a claim made against him, he must present the response to the Office of the Industrial Tribunals within 28 days of the date on which he was sent a copy of the claim.
6. Rule 4(5) sets out the procedure to be followed where an extension of time is sought for presenting a response.
7. A respondent who has not presented a response to a claim shall not be entitled to take any part in the proceedings save in the limited circumstances set out in rule 9.
8. The respondent attended the hearing represented by counsel. It was clear from counsel that the respondent anticipated being heard at and contesting the proceedings despite its failure to present a response. The tribunal raised with the respondent’s counsel the issue arising from the procedural regulations relating to the respondent’s entitlement to take part in the proceedings.
9. Following submissions on the issue, the tribunal determined that the respondent should not be permitted to take part in the proceedings. There had been a wholesale disregard of the procedural rules in respect of filing a response. Consequently the tribunal has disregarded any information referred to by or on behalf of the respondent during the hearing.
The issues
10. The following issues fall to be determined:-
(i) Was the claimant unfairly dismissed?
(ii) If so, what award should be made against the respondent?
Facts
11. The tribunal makes the following findings of fact on the basis of the information presented to it. The tribunal heard evidence from the claimant.
12. The claimant was born on 11 November 1985. He is Polish.
13. On 22 October 2010 the claimant commenced employment as a factory worker/ forklift driver. He was given a written contract to sign which was taken from him. The contract was in English with some points in Polish.
14. The premises at which he was employed bore a sign with the name ISL Waste Management and the claimant believed that this was the name of the company which employed him.
15. In fact over the course of his employment the claimant was to receive payslips bearing the names of four different companies. The claimant produced payslips dated respectively: 26/01/12 from MHS Services; 18/10/12 from Jogorman Services; and 27/12/12 from Talbot Maintenance 29 Ltd.
16. The tribunal notes that the total gross pay for the year to date in the payslip from Jogorman Services dated 18/10/12 (week 10) totals £7,044.38.
17. The total gross pay for the year to date in a payslip in the name of Talbot Maintenance 29 Limited dated 27/12/12 (week 38) is stated to be £9,417.75.
18. In view of the hourly rate of pay of £6.19 per hour, the cumulative total gross pay in the year to date on the Talbot Maintenance 29 Limited payslip must take into account the totals shown on the MHS Services payslip.
19. The claimant asked his supervisor Tomek Mazak why there was the change of name on the payslips. Mr Mazak didn’t know but speculated that it might be something to do with taxes.
20. Initially when he commenced employment the claimant worked as a picker on the line, then he worked as a forklift driver before going back to the line. Throughout his period of employment a gentleman called Barry Donaghy was in charge. Everybody called Barry Donaghy boss.
21. The first that the claimant knew that there was a problem at work was following an incident on 30 May 2013. On that date the claimant’s car had broken down and he telephoned work to ask for the day off because he couldn’t start his car. The claimant says that his English is not good and that there was no-one to translate for him when he telephoned. He spoke to Barry Donaghy. The claimant says that he explained that he had had an incident with his car and he asked for the day off to go and fix it. Barry Donaghy agreed.
22. On the claimant’s account it seems that Mr Donaghy misunderstood what the claimant had said. Instead of understanding that the claimant had had an incident with his car, Mr Donaghy thought that the claimant had said that it was an accident with the car.
23. It appears that on 30 May, sometime after his conversation with the claimant, Mr Donaghy became aware that the claimant had not had an accident with his car. On 30 May, the claimant was called by Mr Mazak and told by him that he did not have to come back for his night shift. Mr Mazak told the claimant that it was Mr Donaghy’s decision.
24. On 4 June 2013 the claimant was summoned to a meeting with Mr Donaghy. It is clear that Mr Donaghy was angry and felt that he had been misled by the claimant over the telephone into believing that the claimant couldn’t come to work on 30 May because he had had an accident. The claimant told the tribunal: ‘I told Barry that I wanted to apologise for the misunderstanding on the phone and he said no, no, no. Barry said that I am a fucking liar and a big piece of shit. Barry thought that I had had an accident not an incident.’ Mr Donaghy told the claimant that he didn’t want him there and that he didn’t have a job for the claimant but that he wasn’t dismissing him.
25.
The claimant asked Mr Mazak
whether he was dismissed and in response
Mr Donaghy said that he wasn’t the claimant’s boss. Mr Donaghy said that the
claimant’s boss was Talbot Maintenance 29 Ltd and he said that the claimant
should email that company to see if it wanted the claimant to work. The
claimant asked Mr Donaghy for his P45 but was told that he had to ask Talbot
Maintenance 29 Ltd. The claimant received a P60.
26. Following the termination of his employment on 4 June 2012, the claimant’s trade union wrote to ISL Waste Management on his behalf seeking clarification of his employment status and indicating that he wished to appeal any decision to dismiss him. Mr Donaghy sent a reply asserting that the claimant was employed by Talbot 29 Maintenance Ltd and not ISL Waste Management consequently he could not comment on the claimant’s employment status. Subsequent emails from the union to Mr Donaghy went unanswered. Similarly correspondence from the union to Talbot Maintenance 29 Ltd has gone unanswered.
27. The claimant was subsequently unemployed and in receipt of JobSeekers Allowance until he found new employment on 21 October 2013. No case is raised in respect of future loss of earnings.
28. The claimant’s weekly pay is stated to be £297.12 gross, £250.79 net.
Law
29. Part XI of The Employment Rights (Northern Ireland) Order 1996 [‘the ERO’] sets out the basis of the right not to be unfairly dismissed and the remedies for breach of that right. It is for the claimant to establish on the balance of probabilities that he has been dismissed. Article 127(1)(a) of the ERO provides that an employee is dismissed if the contract under which he is employed is terminated by the employer, with or without notice. Article 127(1)(c) further provides that an employee is dismissed where the employer terminates the 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. In order to constitute such a constructive dismissal the employer’s conduct must amount to a fundamental breach of contract (see Western Excavating (ECC) Ltd v Sharp [1978] QB 761).
30. Pursuant to Article 14 of the ERO, where there is a change of employer the necessary continuity of employment for an unfair dismissal claim is not broken if the business is transferred from one person to another, or if the second employer is an associated employer of the first within the terms of Article 4 of the ERO.
31. Articles 130 and 130(A) of The Employment Rights (Northern Ireland) Order 1996 apply to this case. Where an employer has failed to comply with the requirements of the statutory dismissal and disciplinary procedures set out in Part 1 Schedule 1 to the Employment (Northern Ireland) Order 2003, the dismissal is automatically unfair. Article 17 of the 2003 Order provides that where that occurs the tribunal must increase the compensatory element of any award by 10 – 50% unless there are exceptional circumstances which would make an increase of that amount unjust or inequitable.
Conclusion
32. Since the commencement of his employment until its termination, the claimant worked in the same way, in the same factory, under the same day to day management. The only potential hint to him of a change in his employer was that evidenced by the changing names on his payslips. There is no evidence that his employer ever informed him of a change in his employment status or interruption of his continuous employment.
33. The tribunal must determine the issue of continuity of employment on the basis of the information and evidence available to it. In all the circumstances the tribunal is satisfied on the balance of probabilities that it is proper inference to draw that within the terms of Article 14 of the ERO the claimant’s continuity of employment has been preserved with Talbot Maintenance 29 Ltd. In any event, notwithstanding the claim made against it, Talbot Maintenance 29 Ltd has not filed a response denying the claimant’s assertion that it is his employer. The tribunal finds that the claimant’s employment commenced on 22 October 2010 and terminated on 4 June 2013.
34. The tribunal finds that the claimant was dismissed. Mr Donaghy was his manager who by his actions demonstrated that he possessed the authority to decide whether or not the claimant should be offered any shifts pursuant to his contract of employment. The tribunal is satisfied that Mr Donaghy’s conduct on 4 June 2013 in telling the claimant that he didn’t want him there and was not going to offer him shifts amounted to actual or constructive dismissal. Telling the claimant that he was not dismissing him was meaningless, when the words were accompanied by the assertion that the claimant was unwanted and would not be getting any work.
35. The respondent failed to follow any dismissal procedure whatsoever. Consequently the dismissal was automatically unfair. In all the circumstances of the case the tribunal finds that it is just and equitable to increase the compensatory element of the award by 30% pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.
36. The following award is made:-
Basic award
2 completed years of employment = (2 weeks x £297.12) = £594.24
Loss of earnings
4 June – 21 October 2013 = 20 weeks x £250.79 = £5015.80
30% uplift = £1504.74
Loss of statutory rights
£400
Total award
£7,514.78
Recoupment
37. The parties are referred to the recoupment notice attached to this decision which requires the respondent to withhold part of the award pending the recoupment of social security benefit.
In accordance with the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996:-
(i) the monetary award in full is £7,514.78
(ii) the prescribed element is £5,015.80
(iii) the relevant dates are 4 June 2013 and 21 October 2013
(iv) the amount by which the monetary award exceeds the prescribed element is £2,498.98
38. This decision is a relevant decision under the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 November 2013, Belfast.
Date decision recorded in register and issued to parties: