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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Woodburn v William Ross & Sandra Ross t/a... [2010] NIIT 6217_09IT (20 May 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/6217_09IT.html Cite as: [2010] NIIT 6217_09IT, [2010] NIIT 6217_9IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6217/09
CLAIMANT: William Woodburn
RESPONDENTS: William Ross & Sandra Ross t/a Ross Companies
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondents and is entitled to compensation for unfair dismissal and certain other sums as set out in the Schedule below and amounting to £8,205.08.
Constitution of Tribunal:
Chairman: Mr P Cross
Members: Mr J Devlin
Mr A Crawford
Appearances:
The claimant was represented by Mr N Richards, Barrister-at-Law, instructed by Messrs Samuel Cumming & Son Solicitors.
The respondents did not appear before the tribunal and were not represented.
Findings of Fact
1. The claimant commenced work with the respondents who traded as a partnership, on 1 September 2007. He worked a 40 hour week as a manager in charge of four men. His gross pay was £420.00 per week (net £305.40). The claimant was born on 16 December 1961. Although the claimant asked for a copy of his terms and conditions of employment these were never given to him by the respondents.
2. Towards the end of his employment there was difficulty in the business and the wages were not paid on a regular basis. As a result of this the claimant raised a grievance with the respondents. A meeting with Sandra Ross the second named respondent was arranged for 24 March 2009. At that meeting the claimant was told that his hours were to be cut. He was not happy about this and asked for an appeal on his grievance. The claimant heard nothing further about the grievance procedure, but on 1 April 2009, he received a letter dated 31 March, from the respondents purporting to terminate his contract of employment, which was referred to as, “your verbal contract.” The claimant at that time was on sick leave and was owed one week of sick pay together with certain accrued holiday pay. He was dismissed without notice, or pay in lieu of notice.
3. The claimant wrote to the respondents on 5 April 2009, to appeal this decision to dismiss him and to complain that the respondents had failed to observe the statutory procedures. The claimant heard nothing in response to this letter and consequently instructed his solicitor to write to the respondent. Messrs Samuel Cumming & Son wrote to the respondent on 23 April, asking for the claimant’s contract of employment and for copies of his disciplinary record and reasons for his dismissal. They also requested that the appeal be implemented. No reply was received to that letter and the claimant heard nothing further from the respondents, until this claim was before a different tribunal on 27 November 2009. On that day, after negotiations between the parties, the case was withdrawn as settled, subject to the rights of the parties to apply for the case to be re-listed, in the event of the settlement not being implemented. Unfortunately the respondents have not honoured the terms of settlement that were agreed.
4. The case is thus re-listed before this tribunal for determination.
The Law
5. The claimant claims that he was unfairly dismissed. Under the provisions of Article 126 of The Employment Rights (Northern Ireland) Order 1996 (the 1996 Order):-
“An employee has a right not to be unfairly dismissed by his employer.”
Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question.
6. Certain dismissals are declared by Statute to be automatically unfair. One such is where the employer fails to comply with the terms of Article 130A of the 1996 Order. This states that a dismissal is to be regarded as unfair, if one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), has not been complied with and the non compliance is wholly or mainly attributable to the failure of the employer/ respondent. The procedure referred to in Schedule 1 of the 2003 Order provides for the employer to give written information to the employee as to its reason for wishing to terminate the employment of the employee and to invite the employee to a meeting to discuss the matter. The meeting must take place before the action of dismissal is implemented and if the employer is still intent on dismissing the employee it must give the employee a right of appeal. If it fails to carry out this procedure then the subsequent dismissal is automatically unfair. This is known as a failure to follow the statutory dismissal procedure.
7. If the tribunal is satisfied that the claimant has been unfairly dismissed, it can award the claimant compensation, payable by the respondent. The tribunal, if the statutory procedures are not complied with, must increase the award of compensation that it makes by 10 per cent, (Article 17 of the 2003 Order). The tribunal also has power, under the same Article, to increase the award by a further percentage, up to 50 per cent, if the tribunal considers it just and equitable so to do. Furthermore, the tribunal must award the claimant a sum equal to 4 weeks salary, if the basic award would otherwise be less than four weeks, if the respondent has failed to implement the statutory dismissal procedure; unless the tribunal decides that it would unjust and inequitable to so award. (Article 146 of the 1996 Order).
8. Under Article 27(2) of the 2003 Order, in the event that an employer fails to give to an employee a written statement of particulars of employment, as required by Article 33 of the 1996 Order, a tribunal shall award to the employee/claimant at least 2 weeks pay, as compensation and has power to raise this compensation to 4 weeks pay if it considers this to be just and equitable.
DECISION
9. The tribunal hold that the claimant was dismissed by the respondents in breach of the statutory procedures set out in the 2003 Order and described above. This being the case the dismissal is automatically unfair and consequently the claimant is entitled to compensation as set out in the Schedule below. In accordance with Article 17 of the 2003 Order the tribunal increases its award by 30% to reflect the failure of the respondent to comply with the statutory procedures. The tribunal also awards four weeks salary as the basic award, to reflect the respondent’s complete disregard for the statutory dismissal procedure.
10. The claimant was fortunate to obtain an alternative job, at a higher wage than that paid to him by the respondents and consequently the compensatory award only covers the period when he was out of work on his dismissal to his reemployment. During this period the claimant was in receipt of Job Seekers Allowance.
11. Despite the fact that the claimant asked the respondents, on a number of occasions, for a copy of his terms and conditions of employment, he never received it. The tribunal therefore award the claimant compensation of four weeks pay at the statutory maximum of £350.00 per week.
12. The tribunal also award to the claimant, one weeks pay in lieu of the notice that he never received and 12 days holiday pay and one week pay at the statutory sick pay rate for the period before he was dismissed, when he was on sick pay.
Schedule
13. Basic award
This is increased to 4 weeks, as the statutory procedures were
not followed. 4 x £350.00 (statutory maximum at date of
dismissal. £1,400.00
14. Compensatory award
Loss of earnings from date of dismissal to date claimant
Started new job on 8 June 2009 being 10 weeks at £305.40 £3,054.00
Loss of statutory rights £ 250.00
Uplift to compensatory award 30 % of £3304.00 £ 991.20
Failure to provide written employment particulars 4 weeks pay at
Statutory maximum £350.00 £1,400.00
Pay in lieu of notice 1 week at £305.40 £ 305.40
Unpaid holiday pay 12 days at £61.08 per day £ 732.96
Unpaid wages 1 week at statutory sick pay rate of £ 71.52
Total compensation payable £8,205.08
15. The Recoupment Regulations apply. Attention is drawn to the notice below, which forms part of this Decision.
16. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 30 March 2010, Belfast.
Date decision recorded in register and issued to parties:
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.
|
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£ |
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(a) Monetary award |
£8,205.08 |
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(b) Prescribed element |
£3,054.00 |
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(c) Period to which (b) relates: |
1 April 2009 to 8 June 2009 |
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(d) Excess of (a) over (b) |
£5,151.08 |
The applicant 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 applicant in respect of that period; (b) is not payable until the Department of Health and Social Services 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 applicant 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 applicant.
2. 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.
3. The applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services 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 applicant, 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 applicant and regardless of any dispute between the applicant and the Department.
