Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2552/15

 

 

CLAIMANT:                          Grant Molloy

 

 

RESPONDENT:                  Nexus Power Limited

 

 

DECISION ON REMEDY

It is hereby ordered that:-

 

(i)         the respondent company do pay to the claimant the sum of £12,576.00 in respect of his unfair dismissal; and

 

(ii)        that it do pay to him the sum of £2,502.00 in respect of sums owing by way of its breach of his contract of employment.

 

Constitution of Tribunal:

Employment Judge:          D Buchanan

Members:                             Ms M Mulligan

                                                Mr I Foster

Appearances:

The claimant was represented by Mr S Magee, Barrister-at-Law, instructed by RJW, Solicitors.

The respondent company was represented by Mr P Warnes, Consultant, of Peninsula Business Services Ltd (Mr Warnes did not appear at the previous hearing).

 

1.         Evidence and submissions in this case were heard on 21 – 23 March 2016 and 26 April 2016.  A decision, on liability only, issued on 23 September 2016.  We considered that much of the evidence we heard in this case was unsatisfactory.  That applied to quantum as much as liability.  In those circumstances we gave the parties an opportunity to agree compensation between themselves.                              (See : Paragraph 5 of the decision of 23 April 2016.)  That turned out to be of no avail, and it was therefore directed that the matter be listed before us for hearing on those aspects of remedy on which agreement had not been reached.

 

2.         When the matter came before us the essential disagreement between the parties revolved around the amount of the claimant’s claim for immediate loss of earnings following his dismissal.  (He had subsequently obtained a new job at a better salary.)  There was also an issue in respect of alleged loss of earnings for banked overtime hours.

 

3.         The claimant’s loss of immediate earnings

 

(i)         The claimant claims £18,879.90 in respect of immediate loss from 11 August 2015 until 8 February 2016, the date of his new employment.  This is 26 weeks x £726.15, which it is agreed was his net weekly wage. 

 

            The date of termination of his employment was 11 August 2015, not 23 September 2015, as incorrectly stated in the decision.

 

            The date of 11 August 2015 was agreed by the representatives at the earlier hearing, and such submissions as related to quantum as were made then were predicated on it being the correct date.  In these circumstances we do not consider it is necessary to invoke any specific provision of the Rules (eg the ‘slip’ rule, or a review of our own motion) to correct it.

 

(ii)        The respondent company’s representative has satisfied us, however, that the claimant has failed to mitigate his losses.  We find that the claimant did not take the steps that a reasonable person would have taken to secure new employment.  He applied for less than half a dozen jobs in a six month period.  We consider that if he had devoted more time to searching for new employment, he would have found a job within a period of 14 weeks.

 

(iii)       The respondent company alleged that the claimant was working as a male model during his period of unemployment.  He admittedly did take part in photo shoots to raise his profile in the hope or expectation of following such a career.  There is no evidence that he received any payment for this.  His bank statements do show that he received minimal expenses.  It would be strange if his expenses were being paid into his bank, but he was being paid cash in hand for work done.

 

4.         Loss of earnings for banked overtime hours

 

(i)         We are satisfied that the claimant is owed £2,502.00 for loss of banked overtime hours.  The respondent’s representative pointed out that he had never separately claimed for that amount and referred to Box 7(i)(c) of the claimant’s claim form.

 

(ii)        We are satisfied, however, that it was clear from the claim form and pleadings that such a claim was being made, the previous hearing proceeded on that basis, and submissions at that hearing were again based on this being part of his claim, albeit that although constructive dismissal involves a breach of contract, the claim in respect of banked overtime hours should have been pleaded as a separate breach of contract.

 

5.         We now assess compensation for unfair dismissal as follows:-

 

                        (i)         Basic Award (agreed)                                                          £  1,960.00

 

                        (ii)        Compensatory Award

 

                                    Loss of statutory rights (agreed)                                        £    450.00

 

                                    Loss of immediate earnings

                                    14 weeks x £726.15 net (rounded)                                   £10,166.00

 

                                    Total                                                                                      £12,576.00

 

6.         We also find that the sum of £2,502.00 (rounded) is owing to the claimant by the respondent company as a result of its breach of contract.

 

7.         The claimant did not receive any benefits to which the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.

 

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

 

9.         In the course of submissions, the respondent’s representative referred us to the decision of the Supreme Court in Fairclough Homes Limited  v  Summers [2012] UKSC 26.  We are not satisfied that the claimant has been in any way deceptive, dishonest, or fraudulent in his claim.  In any event, at Paragraph 65 of that decision (which does not relate to an employment tribunal decision) it is stated as follows (per Lord Clarke):-

 

“Although we have accepted the defendant’s submission that the court has power under the CPR and under its inherent jurisdiction to strike out a statement of case at any stage of the proceedings, even when it has already determined that the claimant is in principle entitled to damages in an ascertained sum, we have concluded that that power should in principle only be exercised where it is just and proportionate to do so, which is likely to be only in very exceptional circumstances. We have further concluded that this is not such a case.”  

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:          12 December 2016, at Belfast

 

 

Date decision recorded in register and issued to parties: