Sinclair v Evans [2009] NIIT 4056_09IT (03 December 2009)

THE INDUSTRIAL TRIBUNALS

CASE REF: 04056/09

CLAIMANT: Ryan James Sinclair

RESPONDENT: Gareth Evans

DECISION

The unanimous decision of the tribunal is claimant was unfairly dismissed by the respondent and the tribunal also finds the claimant’s claims for unpaid notice pay and holiday pay to be well-founded. The tribunal makes a declaration that the respondent has failed as required by Article 40 of the Employment Rights (Northern Ireland) Order 1996 to provide itemised wage slips and in the requirement contained in Articles 33 and 34 of said 1996 Order to provide a written statement of main terms of conditions of employment. The tribunal Orders the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of

£10,262.80.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Panel Members: Mr P Sidebottom

Mr J Law

Appearances:

The claimant was unrepresented and appeared personally.

The respondent was not represented and did not appear.

1. By claim form dated 12 March 2009 the claimant claimed against the respondent breach of contract, redundancy payment, unfair dismissal, unauthorised deduction of wages and also that he had never been issued with a P45. He also indicated in his claim form that he had never been provided by the employer with a written contract, itemised payslips and that the employer did not follow the correct procedure in regard to grievance and disciplinary matters. He indicated that he might well be also owed holiday pay. There was no response by the respondent to the claim form.

THE ISSUES TO BE DETERMINED

2. The issues to be determined in this case are whether or not the claimant’s claims in the originating claim form were made out to the satisfaction of the tribunal and are well-founded. In addition, certain issues rising from the statutory disciplinary and dismissal procedures also had to be addressed by the tribunal. In the event of the claimant’s claim being successful, the tribunal had to determine appropriate remedy, including compensation.

THE EVIDENCE

3. The tribunal heard oral evidence from the claimant and inspected the documentation which was before it at the hearing.

THE TRIBUNAL’S FINDINGS OF FACT

4. On the basis of the oral and documentary evidence, on the balance of probabilities the tribunal determined the following material facts:-

4.1 The claimant commenced employment with the respondent in June of 2006. The claimant was uncertain as regards the exact commencement date. However, he indicated to the tribunal that the employment possibly commenced in the middle part of the month of June. He was engaged as an apprentice electrician by the respondent and he eventually concluded the apprenticeship and he became fully qualified in either August or September of 2008. The claimant was never issued by the respondent with a written contract of employment or statement of main terms and conditions. The respondent did not issue to him any itemised wages documentation for a year after he commenced employment. However, he then seems to have received a bundle of such wages advice slips at some point in 2007, but he never received anything further after that point in time.

4.2 The orally agreed terms of employment, or customary terms, provided that the claimant worked for the respondent from Monday through to Friday from 7.00am to 4.00pm. The evidence available to the tribunal regarding customary holidays was somewhat unsatisfactory. However, the claimant indicated that he had taken 18 days leave in total in the previous year prior to the events that caused the employment to be terminated.

4.3 In this employment, the claimant received a wage of £210.00 per week, which sum was paid by cheque to him on a weekly basis. This appears probably to have been the nett pay figure; the claimant was never informed to what his gross pay figure amounted.

4.4 The claimant requested from the respondent a day’s leave in regard to what the tribunal believes to be Monday, 22 December 2008. The tribunal is unsure as to when that leave request was made. However, it was refused by the respondent. The claimant had it seems worked the previous Saturday, 13 December and apparently he had a birthday celebration organised for the weekend in question and he thus had hoped to get that Monday, 22 December off work. As it turned out, the claimant stayed in a friend’s house on the Sunday evening and when he awakened on Monday, 22 December he seemingly found that he had no charger for his mobile phone which was “flat”, so, as he informed the tribunal, he was unable to contact the respondent that morning. He did eventually send a mobile phone text message to the respondent on that Monday afternoon, but there was no response from the respondent to his text. He attended work the following day as normal and at the customary time, 7.00am, on Tuesday 23 December. It seems that the respondent saw the claimant waiting in the yard but did not approach him and the respondent drove off in his car. The claimant it appears awaited the respondent making contact with him for approximately 15 minutes. He then sent to the respondent a text message at approximately 7.25am stating, “I’m at the yard here, what’s happening?” He then appears to have received a text message from the respondent at approximately 7.30am to his mobile phone which message, as the tribunal understands it from the claimant’s evidence, read, “Call me in the New Year to see if I have a job for you or not”. The claimant stated to the tribunal that he was not sure whether to take this message seriously or not. He sought information from an apprentice of the respondent named “Ross”. Ross informed the claimant that the respondent had said to him (Ross), being annoyed at the claimant’s absence on the Monday, that if the claimant was not in on Tuesday he would not be going to the staff night out. This was it appears a reference to the annual firm’s pre-Christmas evening out for all of the staff.

4.5 In the claimant’s presence, Ross then telephoned the respondent on his mobile phone and after having a conversation apparently with the respondent, Ross informed the claimant that he had received a message from the respondent which apparently it was intended by the respondent that Ross was to convey to the claimant. The claimant informed the tribunal that this message as relayed to him by Ross was, “Tell Ryan to go home”. Having received this message, the claimant then drove home at around 8.00am on that morning. The claimant then tried to contact the respondent by telephone. He sent him a text message apologising for his absence from work on the Monday. The claimant informed the tribunal that on account of the foregoing events he did not think that it was appropriate to go into work on the following day, Wednesday 24 December, as he believed that he was not expected by the respondent to go into work. The claimant had endeavoured to contact the respondent by telephone on a number of occasions, approximately five times, on the Tuesday, and he had sent one text message apologising for his absence on the Monday. On the Wednesday he endeavoured to make approximately five telephone calls to the respondent, without any response and he also sent one text message to the respondent. It appears that the business then closed at some time on that Wednesday 24 December for the Christmas break.

4.6 The claimant again sent text messages to the respondent on 27 and 28 December 2008 and he asked the respondent what was happening. He did not get any response. Ordinarily, he would have returned to work after the Christmas break period on Monday, 5 January 2009. However, as he informed the tribunal, the claimant wished to avoid a confrontation with the respondent and he was quite clear in his mind that the respondent did not wish him to return to work. However, he did nonetheless regard himself as available for work if the respondent indeed wished him to return, as and from 5 January 2009. Eventually the claimant approached his local advice service and Magherafelt District Advice Service Ltd wrote to the respondent by letter dated 6 February 2009 outlining the claimant’s version of events and seeking clarification from the respondent concerning whether or not there was a dismissal. The letter also highlighted the statutory dismissal procedures (referred to below) and the fact that no P45 form had been issued by the respondent to the claimant. The said letter also mentioned the employer’s obligation to provide a written statement of main terms and conditions of employment, itemised payslips, pay in lieu of notice and holiday pay entitlement. There was no response from the respondent to that said letter.

4.7 The claimant claimed Job Seekers’ Allowance from 17 February 2009. He produced some documentation for the information of the tribunal in response to a request on the tribunal’s part indicating that he had commenced receipt of Job Seeker’s Allowance on 17 February 2009. The claimant in his evidence at hearing to the tribunal had alluded to the possibility of becoming self-employed in other employment. Regrettably, notwithstanding a number of requests on the tribunal’s part to elicit further information from the claimant, none was forthcoming save the foregoing documentation in respect of Job Seeker’s Allowance. It was quite unclear to the tribunal whether or not the claimant had secured any alternative employment or if he had possibly commenced in self-employment. For some reason, the claimant failed to impart any further information by way of evidence to assist in computation of possible loss. The tribunal’s assessment of the appropriate remedy and compensation is accordingly based upon the foregoing information as nothing further was available to assist the tribunal.

THE APPLICABLE LAW

5. In respect of the law in regard to unfair dismissal, the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal. If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award and a compensatory award. Under Article 153 of the 1996 Order the basic award is calculated with reference to the effective date of termination of employment. For the compensatory award under Article 157 of the 1996 Order, the award is such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.

The Employment (Northern Ireland) Order 2003 ("the 2003 Order") amends the 2006 Order and includes provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals and under Article 23, in relation to procedural fairness in unfair dismissal. Article 130A (1) of the 1996 Order (as amended by the 2003 Order) provides that an employee who is dismissed, whether or not his dismissal is unfair or regarded as unfair for any other reason, is to be regarded as being unfairly dismissed if a statutory dismissal and disciplinary procedure (as set out in the 2003 Order) applies in relation to the dismissal, the procedure has not been completed, and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures. Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures. Article 17 (3) of the 2003 Order provides for an adjustment of compensation as follows:- “ If, ..... it appears to the industrial tribunal that— the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it shall…. increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent”. The jurisdictions to which that adjustment applies are set forth in Schedule 2 to the 2003 Order and these include the claims of unauthorised wages deductions, unfair dismissal, redundancy payments, breach of employment contract and termination, and breach of the Working Time Regulations (Northern Ireland) 1998.

The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”), at Regulation 3 provide for the application of the standard disciplinary and dismissal (and the modified dismissal) procedures, the former being when the employer contemplates dismissing the employee (and the latter post-dismissal). Regulation 4 provides for situations where these statutory procedures do not apply and Regulation 5 provides for situations where the parties are to be treated as complying with these statutory procedures.

Article 154(1A) of the 1996 Order provides that the basic award in any automatically unfair dismissal pursuant to Article 130A (1) must amount to at least four week’s pay unless that would be unjust to the employer.

In regard to redundancy, Article 170 of the 1996 Order provides that an employer shall pay a redundancy payment to any employee in the event that 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 forth in Article 174 of the 1996 Order.

In regard to unpaid wages Article 45 of the 1996 Order provides that where the total amount of wages paid by an employer to a worker employed by him is less than the total amount of the wages properly payable, the amount of the deficiency shall be treated as a deduction made by the employer from the worker’s wages and the tribunal may make an appropriate order.

In regard to notice pay the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 is applicable in relation to breach of contract by non-payment of notice pay and the tribunal may make an appropriate order.

In relation to annual leave, Regulation 13 of the Working Time Regulations (Northern Ireland) 1998 as amended by the Working Time (Amendment) Regulations (Northern Ireland) 2007 applies and the tribunal may make an appropriate order.

Finally, Article 40 of the 1996 Order requires an employer to provide itemised wage slips and Articles 33 and 34 of 1996 Order require the provision of a written statement of main terms of conditions of employment. Article 118 of the 1996 Order provides for a minimum period of statutory notice dependant upon length of service. Article 27 of the 2003 Order applies to proceedings before a tribunal relating to unfair dismissal. In any proceedings if the tribunal finds in favour of the employee, but makes no award to him in respect of unfair dismissal, but the employer was in breach of the duty to provide a written statement of terms and conditions of employment, the tribunal must make one of the specified awards unless there are exceptional circumstances which would make such an award unjust or inequitable.

THE TRIBUNAL’S DETERMINATION OF THE ISSUES

6. In this case, one of the primary issues for determination was whether or not there was, or was not, a dismissal of the claimant by the respondent. Regrettably, the tribunal notes that it is not uncommon for there to be no clear express words of dismissal on an employer’s part. On occasions, the tribunal is required to determine the issue of dismissal in the light of all of the evidence and by endeavouring to assess that issue by determining the intention or understanding of the parties to be derived from the evidence of any conduct or default of either party. Assessing all of the evidence and the matters of fact to be determined from this, the tribunal accepts the claimant's contention that the conduct of the respondent as employer in this case was such as to effect a dismissal of the claimant. On the strength of all of the evidence available to it, the tribunal therefore determines that the claimant was dismissed by the respondent with effect from Tuesday 23 December 2008. This is for the reason that it was on that foregoing date that the respondent appears to have made the determination that he did not wish to have the claimant return to the workplace and the respondent engaged in conduct evidencing an intention to effect a dismissal. This is indeed so, although that determination was not entirely clear to the claimant at that point in time. The tribunal therefore determines that 23 December 2008 is the effective date of termination. The dismissal of the claimant is borne out by the respondent’s quite evident failure to contact or to have any dealings with the claimant in any manner on Tuesday 23 December and his failure to respond to the various attempts to contact him by the claimant by telephone on that date and thereafter whether that be by telephone calls or by text messages, the only direct contact being the message, “Call me in the New Year to see if I have a job for you or not”. It is also the case that this was a dismissal without any endeavour on the part of the respondent to engage in the applicable statutory procedures which are mentioned above. The dismissal is therefore automatically unfair on foot of the provisions of Article 130(A) of the 2006 Order. In the alternative, if such provisions had not been applicable, the tribunal would have found the dismissal to be unfair procedurally, in any event.

7. In respect of the claimant's claims for redundancy pay and unpaid wages, there is no evidence of such a redundancy situation as is provided for in Article 174 of the 1996 Order existing at the time of dismissal. There is also no evidence of any wages being due and owing to the claimant but unpaid save such as are provided for in this decision under other heads of claim. In regard to pay in lieu of notice, at the effective date of termination the claimant had been employed for two complete years. Therefore (in the absence of any contractual provisions giving an enhanced entitlement) the claimant would have been entitled to two week’s pay in lieu of notice. In respect of the claimant's claim for annual leave, in the absence of any specific information as to when the leave year commenced, the tribunal has no way of computing how many days’ pay might be due to the claimant for untaken leave. Looking at the evidence as to leave taken, the tribunal notes the evidence that the claimant states that he took very little leave. In his claim details as set forth in the letter from Magherafelt District Advice Service Ltd of 6 February 2009, it is contended that the claimant was entitled to 24 days’ holiday pay. The tribunal does not see how that could be possible, given the claimant’s evidence at hearing. Notwithstanding the vagueness of the claimant's oral evidence, it seems that the claimant took a number days’ leave towards the start of 2008, perhaps 5 and 6 January 2008. Then he took leave for St Patrick’s Day, 17 March, and two days at Easter, and indeed some further leave during the summer time. In the absence of specific information, all the tribunal can do is to settle upon the most probable number of day’s leave on the strength of the evidence and the tribunal determines that the appropriate figure is 12 days.

8. Turning then to the issue of appropriate compensation for unfair dismissal, in the absence of a figure for gross pay, the tribunal is unable to determine that figure. The tribunal therefore bases the computation of the basic award upon the only pay figure of which it is aware, that is to say the sum of £210.00 per week. Under Article 154(1A) of the 1996 Order, when an employee is dismissal by an employer without adherence to the statutory procedures, the tribunal shall award a figure of four weeks’ wages if otherwise the basic award would be a lesser sum unless that would be unjust to the employer. In this case the tribunal awards four week’s pay in respect of the basic award.

9. In respect of the compensatory award, this is a somewhat difficult part of the tribunal’s decision. It is not clear to the tribunal why the claimant failed to provide information requested by the tribunal as the tribunal had endeavoured to explain clearly to the claimant the reasons why this information was required and necessary for the tribunal’s full and proper determination of the matter. The compensatory award is therefore made on that basis.

10. In this case it is clear to the tribunal that the claimant was employed by the respondent without any regard to many statutory procedures including the requirement contained in Article 40 of the 1996 Order to provide itemised wage slips and the requirement contained in Articles 33 and 34 of 1996 Order to provide a written statement of main terms of conditions of employment. In this regard, the tribunal makes a declaration that the respondent has failed to comply with these foregoing statutory provisions.

11. In respect of pay in lieu of notice, Article 118 of the 1996 Order (in the absence of any enhanced contractual provision) provides that on the facts of this case the claimant would have been entitled to be paid two weeks’ pay in lieu of notice. As the claimant received nothing in regard to this, two weeks’ pay would be due to him under this heading.

12. In respect of unpaid holiday pay, the tribunal is satisfied that the claimant was owed twelve days’ pay in respect of untaken leave at the time of termination of the contract. He would therefore be entitled to twelve days’ pay in respect of this.

13. In determining appropriate compensation, firstly, the tribunal finds that the loss flowing from the unfair dismissal continued from the date of dismissal until the date of the tribunal hearing. The tribunal has little further information about the matter and therefore has considerable difficulty in making any further assessment of any endeavours on the claimant's part to secure alternative employment or to enter into self-employment and any further loss. Therefore the tribunal determines that the appropriate period of loss flowing from the dismissal is until the tribunal date but no further, a total period of 32 weeks being properly compensatable. The calculation of compensation set out below is based on that assessment on the tribunal’s part.

14. Turning then to the enhancement of compensation, the statutory provisions mentioned above provide that, unless there is reason otherwise to do so (which the tribunal determines does not apply in this case), an enhancement of 10% must be applied by the tribunal to compensation to the heads of compensation mentioned below. The tribunal has a further discretion beyond that up to a figure of 50%. In this case, looking at all of the facts, the tribunal determines that an appropriate enhancement for compensation is 20% for the failure on the part of the respondent to follow the statutory procedures. That percentage enhancement is applied to the calculation of compensation that is set out below.

15. Accordingly, the tribunal finds the following of the claimant’s claims to be well-founded and the tribunal orders the respondent to pay to the claimant compensation, as follows:-

(a) Notice Pay

The tribunal awards 2 weeks’ pay = £420.00

(b) Holiday Pay

The tribunal awards 12 days’ pay = £504.00

(c) Basic Award for Unfair Dismissal

The tribunal determines that a basic award is applicable. The claimant’s weekly pay as assessed for this award was £210.00 per week. The claimant was aged 24 years and he had been continuously employed for two years. Article 154 (1A) of the 1996 Order provides that the tribunal shall under these circumstances increase the award under Article 152(1)(a) of the 1996 Order (the basic award) to the amount of four weeks' pay.

£210.00 x 4 = £840.00.

(d) Compensatory Award for Unfair Dismissal

The pay for the purposes of this award was £210.00 per week. The employment was terminated with effect from 23 December 2008. The claimant signed on for Job Seeker’s Allowance from 17 of February 2009 and he remained in receipt of that up to the hearing date. The tribunal has determined that compensation for loss flowing from the dismissal shall continue up to the hearing date but not beyond that date, representing a total period of 32 weeks. The applicable loss calculation is therefore as follows:-.

£210.00 x 32. = £6,720.00

(e) Compensation for Loss of Statutory Rights

The tribunal’s award for loss of statutory rights = £250.00.

Balance = £8,734.00

(f) Enhancement of Compensation

The enhancement applied to the foregoing heads (a), (b) and (d), which total £7,644.00, on foot of the discretion afforded to the tribunal by Article 17(3) (c) of the 2003 Order is 20% = £1,528.80.

Total = £10,262.80

16. Recoupment of Benefit from Awards

The claimant did receive social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply the following recoupment of benefit is therefore applicable in this case:-

(a) Monetary Award: £10,262.80

(b) Prescribed Element: £ 10,012.80

(d) Excess of (a) over (b): £250.00

AND the attached Recoupment Notice forms part of the decision. Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Interest

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

Chairman:

Date and place of hearing: 31 July 2009, Limavady.

Date decision recorded in register and issued to parties:

Case Ref No: 04056/09

CLAIMANT: Ryan James Sinclair

RESPONDENT: Gareth Evans

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£
(a) Monetary award	£10262.80
(b) Prescribed element	£10012.80
(c) Period to which (b) relates:	17/02/09 – 31/07/09
(d) Excess of (a) over (b)	£250.00

2. The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

3. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

4. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sinclair v Evans [2009] NIIT 4056_09IT (03 December 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/4056_09IT.html Cite as: [2009] NIIT 4056_09IT, [2009] NIIT 4056_9IT

Industrial Tribunals Northern Ireland Decisions

CLAIMANT: Ryan James Sinclair

ANNEX TO THE DECISION OF THE TRIBUNAL