Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 5640/17IT

 

 

CLAIMANT: Aidrian William McCrudden

 

 

RESPONDENT: Manor Petroleum Limited

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant is awarded the sum of £1,852.88 calculated as set out in this decision.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms D Adams

Mr I Foster

Appearances:

The claimant appeared in person.

The respondent company was represented by Mr Aaron Beckett and Mr Dale Beckett.

 

1. The claimant had been employed for just over a year as a supervisor of the delicatessen counter attached to the respondent company's garage.

 

2. The delicatessen was in significant financial difficulty and had to close its operations.

 

3. A redundancy was therefore inevitable.

 

4. The respondent company consulted with the claimant and warned him on several occasions of an impending redundancy if things did not improve.

 

5. The claimant was orally invited to a meeting to discuss this matter just before his employment terminated. He was told orally at that meeting that his employment would terminate and he received some written notification to that effect.

 

6. The claimant did not received a written invitation to that meeting at which the termination of his employment was to be considered, setting out the reason why termination was being considered. Furthermore the claimant was not offered an appeal against that decision and no appeal took place.

 

7. The respondent company considered suitable alternative employment within its business for the claimant but no such suitable alternative employment existed at the time.

 

8. The tribunal is satisfied that the respondent company genuinely attempted to retain the claimant in employment. It could have, if it had wished to do so, terminated the claimant's employment at any point before he acquired 52 weeks continuous service and it would not have faced any legal consequences.

 

9. Unfortunately, the respondent company has not complied with the statutory three step procedure set out in the Employment Rights (NI) Order 1996 and the Employment (NI) Order 2013.

 

10. Article 154(1)(A) of the 1996 requires that in such circumstances the claimant should be awarded a basic award of a minimum of 4 weeks' gross pay. The exception provided in that Order does not apply. The provision contemplates a situation where the dismissal had been otherwise fair. There had been a clear disregard for the statutory procedures and there were no grounds on which the tribunal could conclude that the penalty would result in "injustice" to the employer.

 

11. The claimant obtained further employment two weeks after the termination of his employment. He is awarded two weeks net pay compensation for that loss of wages. That payment covers any period which might have been covered by statutory notice, if statutory notice had not been given.

 

12. The tribunal makes no further award for future loss in this matter. The tribunal is satisfied, after hearing the evidence and from its own knowledge of the labour market the claimant could have obtained alternative employment at the same salary level as he had received in the respondent company but has chosen not to seek such employment as a matter of personal convenience.

 

Remedy

 

13. The claimant's hours per week were reduced two weeks before the termination to 37.5 hours per week. Before that point the hours were 40 hours per week. Therefore over the 12 weeks up to the date of termination the average hours per week were 39.5 hours.

 

14. The claimant is entitled to a minimum basic award of 4 weeks gross pay which is calculated as follows:

 

39.5 hours x £8 x 4 = £1,264.00.

 

15. The claimant is also awarded 2 weeks net pay for loss of earnings as a result of the technically unfair dismissal. That is calculated as £534.64. That is subject to a statutory adjustment under Article 17 of the Employment Order (NI) 2003 of between 10% and 50%. In all the circumstances of this case, the tribunal awards 10%. There were no circumstances under Article 17(4) which were exceptional circumstances which made that increase unjust or unequitable. The total figure is £588.28.

 

16. The claimant is entitled in total to a payment of £1,852.28.

 

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

 

 

 

 

Vice President:

 

 

Date and place of hearing: 27 March 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: