Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  252/15

 

 

 

CLAIMANT:                          James McNeill

 

 

RESPONDENT:                  Laverty Property Limited

 

 

 

DECISION

(1)       The unanimous decision of the tribunal is that the claimant was unfairly dismissed        by the respondent and that the respondent failed to provide the claimant with written           terms and conditions of employment.

(2)       The respondent is ordered to pay to the claimant the sum of £5,184.00 as             compensation for unfair dismissal as set out at paragraph 24 of this decision.

(3)       The respondent is ordered to pay the claimant the sum of £1,880.00 in respect of             failure to provide written terms and conditions of employment.

 

 

Constitution of Tribunal:

Employment Judge:          Employment Judge McCaffrey  

Members:                             Mr D I Atcheson

                                                Mr A Kerr

 

Appearances:

 

The claimant appeared in person.

 

The respondent did not attend and was not represented.

 

 

ISSUES

 

1.         The issues for the tribunal to consider were:-




            (1)       Whether the claimant had been dismissed by the respondent on or about 21 November 2014?

 

            (2)       If the claimant had been dismissed by the respondent, was he unfairly dismissed? 

 

            (3)       Had the respondent failed to provide the claimant with written terms and conditions of employment contrary to Articles 33(1) and 36(1) of the Employment Rights (Northern Ireland) Order 1996 and Article 27 of the Employment (Northern Ireland) Order 2003?

 

            The tribunal found in favour of the claimant. Oral reasons were given at the hearing and what follows is a summary of the evidence and reasons given.

 

The history of the complaint

 

2.         The claimant lodged a claim alleging unfair dismissal, failure to provide holiday pay, notice pay and failure to provide written terms and conditions of employment which was received at the Office of the Tribunals (‘OITFET’) on 23 February 2015.  He alleged he had been unfairly dismissed by his employer on 21 November 2014.  The respondent did not complete the tribunal response form, but sent a letter to OITFET dated 9 March 2015, the contents of which read as follows:-

 

                          “Dear Sirs

 

                          Case reference no. 252/15

 

With regard to your letter received 2 March 2015 this is to advise that
James McNeill had left his position of employment through a health issue.

 

Mr McNeill had terminated his position with Laverty Property Limited off [sic] his own accord and subsequently he had been for interview with another haulage company.

 

His position remains available should he wish to commence employment again with Laverty Property Limited.

 

Regards

 

Paddy Laverty

Director”

 

This letter was treated as a response.

 

3.         The case had been listed for hearing on 1 July 2015 following a telephone Case Management Discussion on 17 April 2015 when the claimant was represented by Ms Lisa Sturgeon of Napier and Sons Solicitors and the respondent was represented by Mr P Laverty, Director.

 

4.         Following this an email was sent to the OITFET by the respondent on 23 June 2015 indicating that due to Mr Laverty having treatment for cancer, he would not be in a position to attend tribunal hearings for a period up to three months.  With the claimant’s consent, the hearing scheduled for 1 July 2015 was therefore postponed.  The matter was re-listed for hearing on 21 and 22 October 2015.  At that time neither the claimant nor the respondent attended.  When telephone contact was made with the claimant, he had advised that he had been working in Scotland only returning home at weekends, was not aware of the hearing and had not received the Notice of Hearing.  Tribunal staff also spoke to Ryan Laverty, son of Mr Paddy Laverty who indicated that his father was still off work sick, that he was not aware of the hearing and that he was not due to return to work until January 2016.  On this basis the hearing scheduled for 21 and 22 October 2015 was postponed at the tribunal’s own motion and the case was re-listed for hearing on 28 and 29 January 2016.  Notices of Hearing were sent to both the claimant and the respondent on 23 October 2015.

 

5.         On the morning of 28 January 2016 the claimant was in attendance at 10.30 am as advised by the Notice of Hearing.  Due to other hearings the tribunal was not able to start the case until 11.00 am, by which stage the respondent had still not arrived at OITFET.  The clerk checked in case there had been any message from the respondent to say they that they had been delayed, but no message or correspondence had been received from the respondent in relation to the matter.  The tribunal was satisfied that the respondent had been notified of the hearing in good time and had had the opportunity to attend.  Given that this matter had been previously postponed on two occasions and that there was no information as to why the respondent was not in a position to attend on this date, the tribunal decided to proceed with the hearing under the powers set out in Rule 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 

SOURCES OF EVIDENCE

 

6.         The tribunal heard oral evidence from the claimant and had also taken into account the contents of the letter of 9 March 2015 received from the respondent.  Following the hearing the tribunal was made aware that the respondent had sent in some copy statements to the Office of the Industrial Tribunals on 8 May 2015.  It was not clear whether these had been shared with the claimant in advance of the hearing.  However we have taken these statements and the respondent’s response into account as required by Rule 27. We can give minimal weight to these statements, as the respondent’s witnesses were not present to give evidence and accordingly these statements (which are photocopies) are at best unsworn evidence and were not tested in cross-examination. The claimant’s evidence on the other hand was clear and cogent and so we prefer his evidence.

 

7.         The claimant commenced employment with the respondent in June 2013.  He remained in this employment until November 2014.  The claimant’s claim form said that his employment ended on Friday 21 November 2014 while in fact according to his evidence (see below), the final conversation which he had with Mr Laverty took place on Saturday 22 November 2014.  The claimant’s evidence was that he was due to go on a week’s holiday commencing on 22 November 2014 and that he had been paid for that week’s holiday in full but had not resumed work after it.  We find as a matter of fact that the claimant’s employment with the respondent ended on Friday 28 November 2014, following the week’s leave for which he was paid.  We note that his claim form was lodged with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 23 February 2015 and we are satisfied that this claim was lodged within the statutory three month time-limit for unfair dismissal claims, given that the claimant’s employment ended on 28 November 2014.

 

8.         The claimant’s evidence was that his working relationship with Mr Laverty had been good until November 2014.  He said that Mr Laverty phoned him on a Saturday evening, spoke to him an aggressive tone and asked him if he had “any ******* problems with another employee”.  The claimant told him that he had no problem with any other employee.  The claimant’s evidence was that he was unsure as to whether perhaps Mr Laverty had been drinking.  On Monday 10 November 2014 Mr Lavery rang the claimant again about 10.00 pm, again speaking in an aggressive matter and saying that he would receiving a call from another employee named John Forrest, insinuating that the claimant was about to be fired.  On Wednesday 12 November 2014 while the claimant was working as a driver in Scotland, he phoned the office because he was about to go over his legal driving hours. He could not reach Paddy Laverty and tried to phone Ryan Laverty but again was unable to reach him.  Later on Ryan Laverty returned the call and advised the claimant to contact a driver in Stranraer and arrange a bed and breakfast. 

 

9.         The following week the claimant had arranged to take a day’s leave to attend his GP.  The next day the claimant went to collect his wages at the respondent’s office and was told by Mr Laverty that he would have to come back the following day because they were having an inspection from the VAT authorities. The next day the claimant returned and Mr Laverty at this stage said to the claimant that he was “bullshitting” about his health and that he was seeing someone else about a job.  The claimant said that he was not.  The claimant’s evidence was that Mr Laverty told him to go out the lane and not come into his yard again.  The claimant said that he didn’t know how to take this as he had never previously had any problems.  He went home and as he was due to be on leave the following week, he called at the office to get his holiday pay and leave in a letter of grievance but no one was there.  The claimant said that he subsequently posted a letter of grievance to the respondent but that this was returned as the respondent would not sign for it.  He tried to deliver the letter personally but Mr Laverty was never in the office.  The day that the claimant tried to deliver the letter personally, he said that Mr Laverty accused him of stealing, which the claimant was adamant was untrue. 

 

10.      The claimant said that he was on holiday until 29 November but he did not go back to work.  He never received any response from the respondent or any further contact from them.  The claimant produced to the tribunal a copy of the letter of grievance which he had attempted to deliver to the respondent and which was dated 25 November 2014.  That letter sets out the conversation on 22 November in relation to the claimant’s health and Mr Laverty’s allegation that he was seeking alternative employment.  It also contains the sentence:-

 

                        “to date you not have informed me of the future for me within the Company          and this has left a cloud over me while I am getting to grips with my health”. 

 

            The letter sought a response by 9 December 2014, but no response had been given.

 

11.      The claimant advised that he had subsequently been accused of theft by Mr Laverty and had been interviewed by the police but that nothing further had come of it.  The claimant said that he had been upset by this behaviour.  He was adamant that Mr Laverty’s allegations were unfounded and he said that he would not take up the offer of a job set out in Mr Laverty’s letter of March 2015 because of the way he had been treated.

 

12.      The claimant advised that he started work with another employer on or about 15 December 2014.  In that work he earned £550.00 per week (net) and his gross pay was £675.00 per week.  When working for the respondent, his take-home pay had been £600.00 per week.  The claimant then found further employment with Turtle Transport Limited commencing on 16 March 2015.  In that job he currently earns £600.00 per week (net), the same as with the respondent.  He received no benefits while out of work.  The claimant also confirmed that he had never received written terms and conditions of employment while employed by the respondent.

 

THE RELEVANT LAW UNFAIR DISMISSAL

 

13.      It is well established that the claimant has the right not to be unfairly dismissed as set out Articles 130 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  We have not set out the relevant case law as it is well-established and easily accessible.

 

14.      Article 130 of the 1996 Order provides as follows:-

 

                         “130(1) 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 principal 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;

 

 

                        (2)     the reason falls within this paragraph if it

 

(a)       relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do;

 

(b)       relates to the conduct of the employee;

 

(c)       is it the employee was redundant, or

 

(d)       is it that the employee could not continue to work in the position which he held without contravention (either on his part of that of his employer) of a duty or restriction imposed by or under a statutory provision ...”

 

15.      In relation to the issue of procedural fairness, the appropriate provisions are to be found in Article 130A 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 at Part I of Schedule 1 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 an employee shall not be regarded for the purposes of Article 130A(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)     For the purposes of this Article any question as to the application of a procedure set out in paragraph 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to Regulations under Article 17 of that Order.”

 

16.      The Statutory Disciplinary and Dismissal Procedures set out in Schedule 1 of the 2003 Order comprise three stages: a letter from the employer to the employee, setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and, if appropriate, the right to appeal the decision.

 

17.      Under Article 154(1A) of the 1996 Order, where an employee is regarded as unfairly dismissed  under Article 130A(1), and the basic award (before reduction) is less than 4 weeks’ pay, the industrial tribunal shall increase the award to 4 weeks’ pay, unless it considers the increase would result in injustice to the employer.

 

18.      Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in the case to which the statutory procedures apply, but they have not been followed due to the failure of the employer.  The tribunal must increase the award by 10% and may, in situations where it considers it just and equitable to do so increase it by up to 50%.  It is only in exceptional circumstances where the tribunal considers that awarding an uplift would be unjust, that the minimum award of 10% would not be awarded.

 

19.      Written terms and conditions of employment

          An employee is entitled to receive written terms and conditions of employment by virtue of Articles 33(1) and 36(1) of the 1996 Order.  By Article 27 of the 2003 Order, where the tribunal finds that no contract has been provided, it shall award two weeks’ gross pay and may award up to four weeks’ gross pay if it considers it just and equitable to do so.




REASONS AND DECISION

 

20.      In this case we heard evidence only from the claimant.  We are satisfied on the basis of his evidence that Mr Laverty’s behaviour towards him on 22 November 2014 constituted a dismissal, in that he told him to leave and not to come back into his yard.   We are satisfied that the claimant was not finally dismissed until a week later as he had a week’s holidays to take and was paid for that week.  We are also satisfied that the claimant tried to clarify the situation and to raise a grievance in relation to his treatment but was not entertained in any way by the respondent. 

 

21.      We are satisfied that the claimant was dismissed by Mr Laverty and that he did not resign, as alleged by the respondent.  We are also satisfied that that dismissal was an automatically unfair dismissal in that the Statutory Disciplinary and Dismissal Procedures set out in Schedule 1 to the 2003 Order and set out at paragraph 16 above were not followed.  There was no letter, no disciplinary meeting and no appeal, so the employer completely failed to follow the statutory procedures.  Accordingly, we consider an uplift of 40% on the compensatory award would be appropriate.

 

22.      We have considered carefully that the appropriate award to be made to the claimant in this case.  We are satisfied that the claimant made every effort to find alternative work quickly.  He took a new job within three weeks of having been dismissed by Mr Laverty at a lesser rate of pay and then was successful in obtaining other employment, with no ongoing loss, from March 2015.  The claimant was aged 55 at the date of his dismissal.  In accordance with Article 152 and following of the 1996 Order which set out the rules in relation to awards and unfair dismissal cases, we order the respondent to pay the following compensation to the claimant.

 

1.            Basic Award

 

The claimant had one year’s service and was aged 55 at the date of dismissal.  His net pay was £600 per week.  This amount is subject to the statutory cap on a week’s pay, which at the time was £470 per week.  The basic award is increased under Article 154 (1A) to 4 weeks’ pay.

 

£470 x 4 weeks                                                                     =          £1,880.00

 

2.    Compensatory Award

 

      Loss of earnings 29 November 2014 to

      15 December 2014.

      3 weeks x £470                                                                     =          £1,410.00

 

      Ongoing loss from 15 December 2014 to

      16 March 2015.

      £50 per week x 13 weeks                                                   =          £  650.00

 

      Loss of employment rights                                                 =          £  300.00

                                                                                                                    ______

 

      Sub-Total for unfair dismissal:-                                                     £4,240.00




      Uplift regarding breach of statutory dismissal and

      disciplinary procedures 40%                                              =          £944.00

 

      TOTAL AWARD FOR UNFAIR DISMISSAL                  =          £5,184.00

 

3.         Failure to provide written Terms and Conditions of

      Employment

 

      We consider the appropriate award in this matter would be four weeks’ gross pay. The amount of a week’s pay is subject to the statutory cap which at the time was £470.  We therefore order the respondent to pay to the claimant the sum of £470 x 4                                                                          =          £1,880.00

 

23.      In total we order the respondent to pay to the claimant the sum of £7,064.00 in respect of compensation for unfair dismissal and failure to provide written terms and conditions of employment.  The claimant did not receive any Social Security Benefits and so the Recoupment Regulations to not apply. 

 

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

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:          28 January 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: