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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Harkin v Alastair McKee, trading as Sam... Alastair McKee, trading as Sam... [2012] NIIT 01244_11IT (28 February 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/01244_11IT.html Cite as: [2012] NIIT 1244_11IT, [2012] NIIT 01244_11IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1244/11
1667/11
CLAIMANT: Nigel Harkin
RESPONDENT: Alastair McKee, trading as Sam Plant Hire
DECISION
The decision of the tribunal is that the claimant is entitled to £4,104.00 in respect of unfair dismissal, holiday pay and failure to provide written terms of employment.
Constitution of Tribunal:
Chairman: Ms F Oliver
Members: Ms T Madden
Mr J McAuley
Appearances:
The claimant represented himself.
The respondent did not appear and was not represented.
SOURCES OF EVIDENCE
1. The tribunal considered the claim form and the oral evidence of the claimant.
THE ISSUES
2. In his claim form, the claimant claimed unfair dismissal, failure to pay holiday pay, failure to provide a written statement of terms of employment and failure to provide itemized payslips.
3. At hearing the claimant accepted that he had received payslips.
4. At hearing the claimant requested compensation for the respondent’s failure to provide written reasons for dismissal. The tribunal noted that this had not been claimed in the claim form and nor did the claimant give any evidence that he had ever asked for written reasons.
FINDINGS OF FACT
Unfair dismissal
5. The claimant commenced employment with the respondent on 5 April 2008. The claimant went on sick leave on 24 May 2010 and was paid by his employer until 4 December 2010 when his sick pay ceased.
6. The claimant was earning £320.00 gross per week being £260.00 net per week, which equates to £52.00 net per day.
7. The claimant received a letter dated 23 February 2011 enclosing his P45. When he phoned the respondent upon receipt of his P45 to request an explanation for his dismissal he indicated that the respondent simply replied “just”.
8. The tribunal noted that the business has now entered into a Voluntary Arrangement with its creditors. The claimant informed the tribunal that although the business is still trading the number of employees has reduced from ten to four.
9. The respondent did not go through any procedures before dismissing the claimant. The dismissal is therefore automatically unfair and the claimant is entitled to four weeks gross pay in respect of the basic award.
10. The claimant was unable to work due to sickness and claimed Employment and Support Allowance. This was paid until 12 September 2011 when the claimant then claimed Jobseeker’s Allowance of £60.00 per week.
Written statement of employment particulars
11. The claimant did not receive a written statement of employment particulars.
Holiday pay
12. The claimant did not receive holiday pay.
13. The tribunal accepts that the holiday year ran from 1 April 2010 and the claimant was entitled to 28 days annual leave.
14. The claimant was entitled to 25 days holidays on a pro rata basis at the date of dismissal.
15. The claimant took three days holidays at Easter and May Day 2011.
Reasons for dismissal
16. The claimant did not provide any evidence that he had asked for written reasons.
THE DECISION
17. The claimant is entitled to £1,280.00 in respect of the basic award of Unfair Dismissal being four weeks gross pay.
18. Taking into account the fact that the claimant was not fit to work until 12 September 2011 and bearing in mind the economic downturn which has obviously affected the business, the tribunal considered it likely that the claimant may well have lost his job and been fairly dismissed by the middle of October 2011. The tribunal therefore considered that a compensatory award of four weeks net pay was appropriate. The tribunal therefore awards £1,040.00 in respect of the period from 12 September 2011 to 10 October 2011.
19. The claimant is entitled to £1,144.00 being 22 days holidays on a pro rata basis at £52.00 net per day.
20. The claimant is entitled to £640.00 being two weeks gross pay in respect of the failure to provide written terms of employment.
21. The Recoupment Regulations apply. The prescribed element is £1,040.00 for the period 12 September 2011 to 10 October 2011.
22. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 31 January 2012, Belfast.
Date decision recorded in register and issued to parties:
