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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Morrison v James Walker T/A Redon Fuels [2009] NIIT 309_09IT (19 August 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/309_09IT.html Cite as: [2009] NIIT 309_9IT, [2009] NIIT 309_09IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 309/09
CLAIMANT: Thomas William James Morrison
RESPONDENT: James Walker T/A Redon Fuels
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal orders the respondent to pay the claimant the sum of £6,974.07.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr T Waite
Mr P McKenna
Appearances:
The claimant was represented by Ms Turley, of Sheridan and Leonard, Solicitors.
The respondent did not enter a response to the claim and was not present at the hearing.
The Claim
1. The claimant’s claim is crystallised in his solicitor’s letter of grievance to the respondent dated 19 December 2008 as follows:-
“Re: Our client: Thomas Morrison
We have been instructed by our client to write to you in relation to the following matter. Our client instructs that you terminated his employment with your firm on 12 December 2008. From our client’s instructions it is clear that his dismissal was both procedurally and substantively unlawful. We are therefore writing to you to seek your proposals for payment to our client in respect of the following matters:
1. Outstanding holiday pay.
2. Payment in lieu of notice.
3. Compensation for unfair dismissal.
We also require you to provide written reasons for our client’s dismissal.
We would recommend that you seek legal advice regarding this matter. In the event that we do not hear from either a legal representative or yourself by 16 January 2009, we shall lodge an application on our client’s behalf with the industrial tribunal.”
The Issues
2. The issues before the tribunal were as follows:-
(i) Was the claimant unfairly dismissed?
(ii) Is the claimant entitled to a payment in lieu of notice?
(iii) Is the claimant entitled to holiday pay?
(iv) Is the claimant entitled to a sum in relation to his right to a written statement of reasons for dismissal?
Sources of Evidence
3. The tribunal heard evidence from the claimant and considered correspondence and documentation referred to in the course of evidence.
Findings of Fact
4. Having considered the evidence in so far as same related to issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant commenced employment with the respondent on 23 November 2007. He was then aged 17. On becoming 18 on 24 October 2008 his basic pay increased to £190.80 gross per week. His average take home pay was £169.39 per week. The respondent ran a coal business and the claimant, who was employed as a labourer, bagged coal and made it ready for the coal man.
(ii) On 12 December 2008 the respondent, Mr Walker, informed the claimant that “Rosie” wanted him in the office. She told him that he was no longer needed and that they would have to let him go. He then walked down to the yard and asked Mr Walker if he wanted him to go now. Mr Walker said “just go”. The claimant then left the premises. No reason was given for the claimant’s dismissal. There was no mention of redundancy or any reference to misconduct. There is no evidence of any contributory fault or of failure to mitigate loss. The claimant was unaware that he was entitled to request reasons for his dismissal and he was also unaware of any procedures which had to be followed in relation to dismissal. The claimant’s mother had left employment with the respondent approximately a week before the claimant was dismissed. His mother encouraged him to see a solicitor as a result of which the letter of grievance was raised and a claim presented to the tribunal on 30 January 2009.
(iii) The claimant was given only 3 days leave in the year namely 11 July, 12 July and Christmas day. He was not given any notice pay.
(iv) The tribunal was shown payslips relating to the claimant’s current employment valeting cars which commenced on 1 May 2009. Prior to this he had been in receipt of Jobseeker’s Allowance at the rate of £47.95 per week from 12 December 2008. This increased to £50.95 per week from 8 April 2009.
Submissions
5. The tribunal heard submissions from Ms Turley. She submitted that the dismissal was procedurally and substantively unfair. In particular she submitted that the claimant had received no notification in writing from the respondent prior to dismissal of any alleged conduct or of any circumstances justifying his dismissal. No actual reason for dismissal was provided. There was no invitation given to the claimant to meet with the respondent to discuss the matter and he was not afforded any right of appeal. Ms Turley also relied on Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) to contend that the dismissal was automatically unfair. She also referred to schedule 1 to the Employment (Northern Ireland) Order 2003. Ms Turley also submitted that Article 118 of the Order had been breached in relation to notice of termination of employment. She also referred to the claimant as a young man who started work at the age of 17 with the respondent. He was in a vulnerable position, and had no knowledge of employment law or his rights. He did not know that he could ask for reasons for dismissal and ultimately sought legal advice. Ms Turley also submitted that the tribunal had no option other than to conclude that it was substantively unfair. The onus was on the respondent to show a reason for dismissal under Article 130 of the Order. No reasons had been put forward despite the fact that the respondent had had ample time to do so. The respondent had not replied to the solicitor’s correspondence of 19 December 2008 and in the absence of such a response, the claim form was lodged. Ms Turley also submitted that there was no question of the claimant not having mitigated his loss. His current job valeting cars was the only one he could find
The Law
6. The tribunal considered the relevant provisions in the Order relating to dismissal and automatically unfair dismissal under Article 130A. It also considered the relevant provisions regarding notice and the right to receive a written statement of reasons for dismissal. It considered the requirements in relation to statutory procedures laid out in the Employment (Northern Ireland) Order 2003. Furthermore, the tribunal considered the relevant provisions of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 in relation to breach of contract, and 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.
In relation to assessing loss for the notice period, the tribunal also took into account the case of Burlo v Langley (2000) IRLR 145 CA in which, referring to the case of Norton Tool Company Ltd v Tewson (1972) IRLR 86 NIRC, the Court of Appeal held that in calculating compensation in relation to unfair dismissal, an employee who is dismissed without notice will receive a full notice payment without having to give credit for sums earned from other employers during the notice period. Furthermore as was held in the case of Hilti (GB) Ltd v Windridge (1974) IRLR 53 NIRC, in calculating an employee’s loss of earnings due to unfair dismissal, net pay should be used in respect of all periods, including the notice period.
Conclusions
7. The tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the facts as found concludes as follows:-
(i) The tribunal is satisfied that the claimant was unfairly dismissed without notice on 12 December 2008.
(ii) The provisions contained in Article 130A of the Order apply. The tribunal is satisfied that, by virtue of Article 17 of the Employment (Northern Ireland) Order 2003, the claim is one to which the statutory procedures apply, that the statutory procedure was not completed before the claim was presented to the tribunal and that the non-completion of the statutory procedure was wholly or mainly attributable to failure by the respondent to comply with a requirement of the procedure. Apart from the provisions contained in Article 130A of the Order the tribunal is satisfied, in any event, that the decision to dismiss the claimant did not fall within the band of reasonable responses which a reasonable employer might have adopted in the particular circumstances of this case and therefore the dismissal is also unfair on this basis.
(iii) The tribunal is satisfied that there should be an uplift in the compensatory award pursuant to Article 17 of The Employment (Northern Ireland) 2003 of 25 percent and that the claimant should be entitled to 4 weeks pay by way of basic award by virtue of Article 154 (1A) of the Order.
(iv) The tribunal therefore awards the claimant the sum of £6,872.75 made up as follows:-
Basic Award £190.80 x 4 = £763.20
Compensatory Award from 12/12/08 – 9/7/2009 = £5,081.70
(30 weeks x £169.39)
Less amount received in other employment
from 01/05/2009 – 9/07/2009 = £1,285.00
Net Loss = £3,796.70
The tribunal does not consider it just and equitable to award any further amount for future loss.
Uplift on Compensatory Award for respondent’s failure to follow the relevant procedures 25% x £3,796.70 = £949.18
Total compensatory award = £4,745.88
Amount for sum in lieu of notice = £169.39
Amount for loss of statutory rights = £200.00
Amount for failure to provide written statutory
reasons for dismissal: 2 x £190.80 = £381.60
Amount due for outstanding annual leave of 21 days
x £34.00 net daily rate (23 November 2007 to
23 November 2008) = £714.00
Total amount to include basic award = £6,974.07
8. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply. The award is therefore subject to recoupment of Jobseeker’s Allowance from 12 December 2008 to 28 April 2009 totalling £947.70.
9. The attached recoupment notice forms part of the decision of the tribunal.
10. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 9 July 2009, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 00309/09
RESPONDENT: James Walker T/A Redon Fuels
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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(a) Monetary award |
6,974.07 |
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(b) Prescribed element |
947.70 |
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(c) Period to which (b) relates: |
12/12/08 - 28/4/09 |
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(d) Excess of (a) over (b) |
6,026.37 |
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.
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 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.
