Crate v JCS Aviation [2007] NIIT 1378_05 (1 May 2007)


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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Crate v JCS Aviation [2007] NIIT 1378_05 (1 May 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/1378_05.html
Cite as: [2007] NIIT 1378_5, [2007] NIIT 1378_05

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 1378/05

    CLAIMANT: Michael Crate

    RESPONDENT: JCS Aviation

    DECISION

    The unanimous decision of the tribunal is that the claimant was unfairly dismissed before a transfer for a reason connected with the transfer and that the respondent shall pay the claimant the amount of £4631.24 in respect of the unfair dismissal, breach of contract, and loss of statutory rights. The claimant's application for costs is dismissed.

    Constitution of Tribunal:

    Chairman: Mr S A Crothers

    Members: Mr Cecil

    Mr Dodds

    Appearances:

    The claimant appeared and represented himself.

    The respondent did not appear and was not represented.

  1. The claimant's claim as set out in the originating claim was for unfair dismissal, notice pay and redundancy pay. The tribunal had before it the decision of a previous tribunal on a pre-hearing review that there was a relevant transfer of part of an undertaking from Helicopter Training & Hire Ltd to the respondent within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981, the said transfer having taken place on 1 September 2005. The tribunal does not propose to rehearse the contents of the pre-hearing review decision which is appended hereto.

  2. As the respondent did not appear and was not represented the tribunal decided to proceed under Rule 27 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and to consider information in its possession from the respondent comprised in the response to the claimant's claim.

  3. The issue before the tribunal was as to whether the claimant was entitled to compensation for unfair dismissal, notice pay and redundancy pay.

  4. The tribunal heard evidence from the claimant and received a bundle of documents from him.

  5. Having analysed the evidence relevant to the issue set out above, the tribunal, in accordance with Paragraph 23 of the pre-hearing review decision, confirms the tribunal's conclusions and makes the additional finding of fact, that the work in which the claimant was involved prior to the transfer had not diminished and therefore there was no redundancy situation. The claimant had been employed by the transfer of Helicopter Training & Hire Ltd from 11 July 2000 until his effective date of termination on 31 March 2005. He was still owed 26 days notice pay at his effective date of termination.

  6. The relevant law at the date of transfer was the Transfer of Undertakings (Protection of Employment) Regulations 1981. In addition, the tribunal took into account the cases of Lister and Others v Dry Dock and Engineering Company Limited [1989] IRLR 161 HL, Wilson and Others v St Helens Borough Council, British Fuel Limited v Faxentale and Meade [1998] IRLR 706 HL and Kerry Foods Limited v Kreber [2000] IRLR 10 EAT. The tribunal also took into account the relevant provisions in the Employment Rights (Northern Ireland) Order 1996 in relation to unfair dismissal, redundancy, and unauthorised deductions from wages, and the tribunal also considered the relevant provisions of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

  7. Having applied the principles of law to the additional facts as found by this tribunal and the conclusions as set out in the pre-hearing review decision, the tribunal concludes as follows:-

    8. (i) The claimant was unfairly dismissed before the transfer for a reason connected with the transfer. There was no evidence before the tribunal that the main reason for the dismissal by the transferor was for an economic, technical or organisational reason entailing changes in the workforce. Therefore, in accordance with the legislation and case law set out above, the respondent must meet all of the transferor's contractual and statutory obligations. The claimant is therefore entitled to an amount for his period of unpaid notice calculated on the basis of a net wage of:-
    £87.74 x 26 days = £2281.24

    The claimant is entitled under the heading of unfair dismissal to the basic award calculated on the basis of:-

    71/2 weeks @ £280.00 per week = £2,100.00

    There was no evidence before the tribunal that the claimant had suffered any further losses after 1 September 2005 arising out of the dismissal for the purposes of a compensatory award.

    In addition the claimant is entitled to a sum for loss of statutory rights of £250

    (ii) The claimant also made a claim for costs against the respondent. He based his claim on Rule 40(4) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. However Rule 38(2) of Schedule 1 to the said Order states that:-
    "A Costs Order may be made under Rules 39, 40 and 47 only where the receiving party has been legally represented at the hearing under the Rule 26 … if the receiving party is legally represented when the proceedings are determined. If the receiving party has not been so legally represented a tribunal or chairman may make a Preparation Time Order (subject to Rules 42 to 45) …".

    There was no basis laid before the tribunal by the claimant for a Preparation Time Order and therefore the claimant's application for costs is dismissed.

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

    9. Chairman:

    Date and place of hearing: 2 November 2006, Belfast.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2007/1378_05.html