Kenny v Staffing Recruitment Ltd T... [2017] NIIT 01547

THE INDUSTRIAL TRIBUNALS

CASE REF: 1547/16

CLAIMANT: Michael Kenny

RESPONDENT: Staffing Recruitment Limited

T/A Diamond Recruitment Group

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The respondent shall pay the claimant compensation in the sum of £13,366.05 .

Constitution of Tribunal:

Employment Judge: Employment Judge Bell

Members: Mrs V J Foster

Ms N Wright

Appearances:

The claimant was represented by Mr Ronan McCaughey, Barrister-at-Law, instructed by Aidan Quinn Solicitor.

The respondent was represented by Ms Isobel McWilliams, Group HR Manager of the respondent company.

THE CLAIM

1. The claimant in his claim complained that he had been unfairly dismissed after informing the respondent on 30 March 2016, that he was leaving work due to stress and having been presented with a form to sign, following which he submitted a medical certificate on 5 April 2016 and then received a call from the respondent on 7 April 2016 querying the certificate given that he had resigned from his employment, which he told them he did not want to do, was not his intention and that he wanted to return to work.

2. The respondent in its response resisted the claimant's unfair dismissal claim and contended the claimant had stated he wished to resign; it was processing final payments when a medical certificate arrived following his resignation and it had processed his resignation prior to 7 April 2016.

THE ISSUES

3. The issues for the tribunal were as follows:

(1) Was the claimant dismissed?

If so,

(2) Was the dismissal fair? That is:

Has the respondent shown a potentially fair reason for the dismissal?

And if so,

Did the respondent act reasonably in treating it as sufficient reason for dismissing the claimant?

If not,

(3) What remedy is appropriate?

SOURCES OF EVIDENCE

4. The tribunal considered the claim, response, agreed bundle of documentation, claimant's agreed schedule of loss, written statements of the witnesses together with their oral testimony. The tribunal heard evidence from the claimant on his own behalf and on behalf of the respondent from Ms Julia Danet employed by the respondent as an Account Co-ordinator and Ms Deimante Draskinyte employed by the respondent as a Trainee Account Co-ordinator.

FINDINGS OF FACT AND CONCLUSIONS RELEVANT TO LIABILTY

5. The claimant's background is in Sports Management but on returning to Northern Ireland with his wife who was unwell he took a job with the respondent. On 16 December 2014 the claimant was contracted by the respondent as an agency worker to work as a Process Operative in Retail Dispatch at Moy Park, Dungannon, commencing on 26 December 2014.

6. Initially the claimant worked twelve hour night shifts 8pm-8am, Friday to Sunday. In March 2015 at his request he changed to weekday night shifts 12.30am - 8am Tuesday to Saturday.

7. In September 2015 the claimant's shifts were changed by Moy Park to twelve hour shifts, 7am- 7pm alternating between Sunday, Wednesday, Thursday one week and Monday, Tuesday, Friday, Saturday the following week. The claimant was of the view that the respondent took no effective action on workers behalf in respect of safety concerns relating to the new twelve hour shift but following taking advice from the Citizens Advice Bureau he accepted the proposed changes to his shift pattern.

8. On 18 December 2015 the claimant had an accident at work injuring his foot while using an electric pallet truck. The claimant was on 22 December 2015 certified as unfit for work by his doctor and absent from work for two weeks thereafter by reason of 'situational stress' in connection with his wife undergoing surgery for cancer that day. The incident report in respect of the claimant's accident on 18 December 2015 was completed in January 2016 and found both the claimant and the electric pallet truck to be partly at fault, which the claimant accepted. The pallet truck was subsequently removed from service due to malfunction.

9. On or about 20 January 2016 the claimant attended a meeting with Ms Danet investigating lateness at work. At the conclusion of the meeting Ms Danet confirmed due to the number of occasions involved she would have no option but to escalate the matter to disciplinary.

10. By letter dated 21 January 2016 the respondent requested the claimant attend a disciplinary meeting on 26 January 2016 to respond to the alleged offence of 'Lateness at work on more than 20 occasions in the last 3 months' the possible consequence of which could be a verbal warning.

11. The claimant considered the respondent's allegations of lateness incorrect for the majority of instances recorded. On 26 January 2016 the claimant accompanied by his trade union representative, attended for the disciplinary hearing but were informed that Sandra Zaleckaite, the respondent's Site Manager with whom he was to meet had been called away and the meeting would be re-arranged.

12. A number of the respondent's agency workers were regularly selected by Moy Park to transfer into Moy Park's direct employment.

13. On or around 27 January 2016 the claimant was informed by his Moy Park Manager that he was going to be offered a Moy Park Contract. The claimant believed that as a result of an intervention by his trade union representative on his behalf and in light of the Moy Park Contract offer that the disciplinary matter against him was no longer being pursued by the respondent, in particular because to his knowledge an offer would not be made by Moy Park where there were disciplinary proceedings. The claimant considered that direct employment by Moy Park would place him in a preferential position for advancement into management with Moy Park than if he were to remain an agency worker because of the scoring system used by Moy Park in recruitment and their practice of promotion from within. The claimant understood that new contracts for workers transferring to Moy Park to include him were due to start on 2 March 2016.

14. By email dated 29 February 2016 Moy Park requested managers inform workers listed therein, which included the claimant, that there had been issues with their pre-employment medicals and that they would need to be seen by the nurse before they could start.

15. In March 2016 the claimant attended Moy Park induction training, signed documentation and attended with Moy Park's nurse for clearance in preparation for being employed directly by them and understood following this that everything was in order for his proposed employment by Moy Park.

16. One evening in early March 2016 the claimant was transporting a pallet at work which broke and landed on his foot, the claimant did not consider that he was at fault and he reported the matter to the respondent.

17. In an email from Moy Park to the respondent dated 14 March 2016 confirming the names of transferring employees and their transfer dates, Moy Park stated 'Michael Kenny will not be transferring', no reason why was provided.

18. On 16 March 2016 Catherine Glendenning a Moy Park senior manager informed the claimant that Human Resources (HR) had told her Moy Park were not going to honour his contract because he had been involved in two previous accidents. The claimant put to Ms Glendenning that neither accident was his fault and he had not been disciplined and Ms Glendenning told him she would investigate.

19. On 17 March 2016 Ms Glendenning informed the claimant she had not heard back from HR, the claimant was due to be off on holiday between 18-24 March 2016 and they agreed to discuss it again on his return from holiday.

20. The claimant returned to work on Friday 25 March 2016 and did not hear anything further that day about his Moy Park Contract. On 26 and 27 March 2016, the following days worked by the claimant, the respondent's office staff were off on holiday for Easter.

21. On the morning of Wednesday 30 March 2016, the claimant's next day at work, he was handed a letter dated 29 March 2016 from the respondent's site manager notifying him of a disciplinary meeting to take place on Monday 4 April 2016 in respect of ' Lateness at work on more than 20 occasions in the last 3 months'. We find more probable the respondent's evidence that it was Ms Danet who delivered the letter to the claimant whilst carrying out the respondent's usual morning checks in the factory.

22. The claimant was extremely distressed by the respondent's letter being of the view that the disciplinary matter with the respondent had been resolved and considering himself meant to be a Moy Park employee as from 2 March 2016, the date initially proposed for his transfer.

23. The claimant raised the matter with Ms Glendenning on her arrival to work but found her not to know what was going on and was informed she would check with someone else whom he did not know. The claimant could not understand why the respondent had issued him with a notice of disciplinary hearing given his belief that the matter had been dealt with, nor why accidents at work had been raised by Moy Park on 16 March 2016. The claimant felt his blood pressure rising and fearing that he was being unfairly disciplined and at risk of losing his Moy Park Contract became extremely agitated, stressed, angry and tearful. The claimant immediately proceeded to the respondent's on-site office and in the words of Ms Dreskinyte, the other person present in the office with Ms Danet, the claimant 'busted in' through the door, at approximately 8.30am.

24. The claimant does not recollect what precisely was said when he entered the respondent's office save that he felt incapable of continuing to work that day and had on entering the office expressed his immediate need to leave work urgently using terms such as 'Get me out of here, I need to leave...' but disputed that he had used the word resign or that it was his intention to do so, and he recollected then being presented with a form and signing it before leaving. Ms Danet's clear evidence supported by that of Ms Dreskinyte, was that the claimant on entering the respondent's on-site office first uttered in a raised voice the words 'I want to resign..'. It was Ms Dreskinyte's evidence that it was the respondent's procedure if a worker used informal language, for example leaving or quitting, that they were to say 'are you looking to resign?' and that 'resign' is the word used in the respondent's office. We accept on balance that the greater weight of evidence supports that the word 'resign' was used by the claimant on entering the respondent's office and in any event otherwise was put to him to seek clarity as to what he meant. Ms Danet described the claimant as being aggressive on walking through the door and accepted that his voice was raised, he was angry, seemed agitated and stressed. Ms Danet then spent at least 10 minutes attempting to talk to the claimant asking if he was sure and explaining to him their leaving procedure, that in the absence of giving one week's notice the respondent would not be able to employ him again, which she did four to five times, as confirmed by Ms Dreskinyte, in the belief that he might calm down and reconsider, but he did not and Ms Danet finally presented him with a form entitled 'Resignation/Notification of Leaving' on which the claimant ticked 'medical reasons', wrote 'undue stress' and signed and dated the form before going. Ms Danet then added in writing to the Resignation/Notification of Leaving form that the claimant had left without giving notice. The claimant clocked out from work at 8.50 am and went directly to his GP's surgery and obtained an appointment with his GP for the next day.

25. It is accepted that it was the respondent's usual practice to require a form to be completed on return to work following sickness absence but not to normally require a form to be signed to permit workers to leave work for illness during their shift.

26. On Thursday 31 March 2016 the claimant attended with his GP and was issued with a 4 week sick line in respect of acute stress and high blood pressure. He did not attend for work that evening.

27. The claimant did not attend work for his next usual shift on Monday 4 April 2016 nor did the respondent proceed with the proposed disciplinary meeting that day following the events of 30 March 2016.

28. The claimant did not attend work on Tuesday 5 April 2016 for his next usual shift (after 4 April 2016). The claimant's evidence is accepted that on 5 April 2016 he delivered the sick line obtained from his GP to his workplace for the respondent's attention. The sick line did not however come to the attention of Ms Danet (who was on the same shift pattern as the claimant) until her next shift at work thereafter on Friday 8 April 2016 when she for the first time that week was processing leavers and on opening the claimant's file came across the delivered sick line. In response Ms Danet telephoned the claimant to query his submission of a sick line given her understanding that he had resigned mid-shift. The claimant denied having resigned and stated he thought he had just signed a paper to go home. Ms Danet recorded immediately following the telephone call, 'Wanted to sort Michael Kenny as a leaver, when I took his file I found an SSP that was brought in ..., phoned Michael, asked him why did he bring it in as he resigned on 30.03.2016 in the middle of his shift with me, tried to explain to him that day if he doesn't give at least 1 week notice Diamond can't represent him anymore, his answer was: "At this point I don't give a shit anymore!" I tried to explain to him again and he just walked out, my colleague Deimante Dreskinyte was witnessing all this. Today he informed that this situation is in the hands of his solicitor and he thought that day that he just signed a paper to go home (on the 30.03.2016 when he came in the office he specifically asked to resign and after that I explained all from the above I issued him the Resignation form), tried to remind him the conversation about notice but he still denied it and after that he said we shouldn't even have this conversation.' The respondent's evidence is accepted supported by Ms Danet's record, that the claimant referred in the course of his conversation with Ms Danet to having already consulted a solicitor, rather than an intention to consult a solicitor following on from the telephone call. It is accepted the claimant put to Ms Danet that he had left mid-shift due to stress and that it was not his intention to resign but in response she informed him that he had resigned, that his resignation had been processed and it was too late to take it back.

29. The respondent subsequently issued the claimant with a P45.

30. Had the disciplinary proceedings in respect of lateness continued against the claimant and he been found at fault, as confirmed by the respondent, the claimant would at most have received a verbal warning by way of disciplinary sanction.

31. The claimant presented his complaint to the Industrial Tribunal on 17 June 2016.

THE LAW RELEVANT TO LIABILITY

32. Under Article 127(1)(a) of the Employment Rights (Northern Ireland) Order 1996 (hereafter referred to as ERO) circumstances in which an employee is dismissed by his employer include if the contract under which he is employed is terminated by the employer (whether with or without notice).

33. The burden of proof is on the employee to satisfy the tribunal that there was a dismissal in law. In determining the question of whether an employee was dismissed or resigned on the evidence before it, whatever the respective actions of the parties, the question always remains ' who really terminated the contract of employment?' A resignation is a fundamental breach and repudiation of the contract of employment by the employee which should be accepted by the employer within a reasonable time. Acceptance will often be by inference. T he preponderance of c ase law supports the application of an objective test where the language of termination used was ambiguous , that is, how would a reasonable listener have construed the words used in all the circumstances of the case; and for unambiguous statements , a combined test, as essentially approved by the Court Of Appeal in Willoughby v CF Capital Ltd [2011] IRLR 985 , CA , that is , starting from the subjective view as set out in Sothern v Franks Charlesly & Co [1981] IRLR 278 CA , that the speaker must accept the consequence of clear words being taken at face value even if a reasonable listener would not (did the words indicate a clear and present intention to sever the employment relationship and the listener genuinely think the speaker was intending to sever the employment relationship?) , but subject to an exception or 'cautious reminder' that if there are special circumstances in which the words were said, then a more objective approach may be adopted to determine what was reasonably meant (did the giver really intend to give notice?/ In the special circumstances was the employer entitled to assume that this was a conscious rational decision?).

34. Fox LJ in Sothern v Franks Charsley & Co [1981] IRLR 278 , whilst advocating an objective approach to unambiguous words or resignation contemplated the possibility that in circumstances, including a decision taken in the heat of the moment, then what might otherwise appear to be a clear resignation should not be construed as such. Dame Elizabeth Lane therein expressed similar views at p.280 such that the words spoken in that case, I am resigning, 'were not idle words or words spoken under emotional stress which the employers knew or ought to have known were not meant to be taken seriously.'

35. In Barclay V City of Glasgow District Council [1983] IRLR , Lord McDonald recognised that the employee in that case may have meant to resign when he did so in the heat of the moment but at p.315 said, 'The real question however is whether or not in the special circumstances the respondents were entitled to assume that this was a conscious rational decision.' He considered the proper approach is to have regard not merely to what was at the time but also to what happened thereafter and in that case there was at the very least an obligation when the employee presented for work upon the employer to seek some form of confirmation that the act of resignation was in fact a genuine one and fully understood.

36. In Sovereign House Security Services Ltd. v Savage[1989] IRLR 115 CA , May LJ stated at p.116:

'In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.'

37. Wood J in p.31 of Kwik- Fit ( G.B) Ltd. V Lineham [1992] ICR 183 set out:

'..... If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant....These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to elapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objectively.'

38. Rimer LJ in Willoughby v CF Capital Ltd [2011] IRLR 985 , CA at p.37 said:

'The "rule" is that a notice of resignation or dismissal (whether oral or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The "special circumstances" exception as explained and illustrated in the authorities is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. The need for such a so-called exception to the rule is well summarised by Wood J in Kwik-Fit (GB) Ltd V Lineham ...'

And at p.38:

'In my judgement, the true nature of the ... exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place- that in effect, his mind was not in tune with his words.'

39. Under Article 126 ERO an employee has the right not to be unfairly dismissed by his employer.

40 . Article 130(1) ERO provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

(a) the reason (or, if more than one, the principle reason) for the dismissal, and

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

41. Under Article 130(4) ERO where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

SUBMISSIONS AND APPLYING THE LAW TO FACTS RELEVANT TO LIABILITY

42. We accept that the respondent was not motivated to pursue disciplinary proceedings against the claimant so as to detrimentally affect his appointment to Moy Park and that the decision that the claimant was not to transfer was taken solely by Moy Park as conveyed to the respondent by email on 14 March 2016 without explanation and that it was not until some 2 weeks thereafter that the respondent issued their disciplinary invite letter to the claimant.

43. Mr McCaughey on the first hand contended that the claimant did not use the word resign but rather words to the effect of I'm leaving, I've had enough, get me out of here, coupled with the title of the 'Resignation/Notification of leaving' form signed by the claimant, both of which were ambiguous, meaning that the claimant's words and actions were ambiguous and so an objective test should be applied and accordingly the intention of the claimant and perception of the respondent are largely irrelevant. We accept the claimant's contention that the title of the 'Resignation/Notification of leaving form' signed is ambiguous and could reasonably be understood to have dual meaning, but on balance consider there to be a greater weight of evidence to support the respondent's case that the claimant on entering the respondent's office uttered or certainly had put to him the word resign and the language used as such is unambiguous.

44. Accordingly starting from a subjective view, whilst indeed it may not have been the claimant's intention, the non-disclosed intention is not properly to be taken into account in determining the true meaning of the language used and we accept that Ms Danet genuinely understood the claimant to have had a clear and present intention to sever the employment relationship at that time. This would normally be the end of the matter and what the employer understands to have happened would take effect, leaving the claimant to suffer the consequence of his words and actions.

45. The respondent contended that an employee who resigns cannot generally unilaterally withdraw a heat of the moment resignation and even if they were there was no prompt retraction of the claimant's resignation and the claimant allowed a nine day cooling off period. We consider that the relevant issue however in this case is not whether the claimant promptly retracted his resignation but whether the circumstances in which it was given required the recipient of the notice before accepting or otherwise acting upon it, first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it.

46. We accept that the circumstances of this case are very much akin to the definition of special circumstances described in the cases of Willoughby V C F Capital PLC and Kwik Fit (GB) Ltd V Lineham, as was submitted for the claimant in the alternative. We accept the claimant's unchallenged evidence that words spoken by him were in the heat of the moment and under extreme pressure, supported by the respondent's evidence that the claimant burst into the office, that his voice was raised and he was aggressive and indeed as further put by the respondent, Ms Danet in the circumstances tried to assist the claimant by repeatedly explaining their procedure to him before eventually presenting him with the 'Resignation/notification of leaving form' to sign. We note as per Wood LJ in Kwik Fit that it may be unreasonable where special circumstances exist to assume a resignation, but that a reasonable period of time should be allowed to elapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk.

47. The respondent submitted that the claimant's non-attendance at the disciplinary meeting on 4 April 2016 was taken by the respondent as a further indication of his intention to resign. We note that on Ms Danet's evidence the proposed disciplinary meeting did not proceed on 4 April 2016 given the apparent resignation by the claimant. It was Ms Danet's evidence that a week has to be allowed before the respondent processes leavers. We note when Ms Danet went to process the claimant as a leaver on 8 April 2016 ( her first shift after a week had passed from the claimant's apparent resignation) she found the claimant's medical certificate which had been delivered on 6 April 2016 but did not come to Ms Danet's attention before 8 April 2016. We are of the view that this clearly put the respondent (in the form of Ms Danet) on notice that resignation may not have been the claimant's intention and could not be properly assumed. Indeed in the circumstances, Ms Danet then correctly, as required by Wood LJ of an employer at that stage, made further enquiry of the claimant by way of a telephone call to query his submission of a medical certificate contrary to his apparent resignation. It was common case that the claimant in the telephone call with Ms Danet denied having resigned. We accept the claimant's submission that it was at this point there was a failure by the respondent to act upon the information garnished. We consider in light of the claimant's emotional state on 30 March 2016 and of which Ms Danet was clearly aware supported by her evidence as to the claimant's entry into the office, his demeanour, her repeated attempt to explain the notice requirement, the claimant's reference on completing the 'Resignation/notification of leaving form' to his reason for leaving being stress, his subsequent submission of a sick line and then his denial over the telephone of having resigned would have to a reasonable observer clearly pointed to the contrary. We consider as cautioned by Rimmer LJ that these were circumstances which clearly required the respondent, before accepting or otherwise acting upon the claimant's apparent resignation, to satisfy itself that the claimant did in fact really intend what he had apparently said, and whilst quite properly telephoning the claimant to query his submission of the sick line, then even though the claimant denied having resigned, the respondent proceeded to rely on the claimant's initial words at face value and thereafter issue him with his P45.

48. Whilst we accept that the claimant indicated in the course of the call with Ms Danet that he had consulted his solicitor we do not consider that this reasonably was viewed as acknowledgement of having resigned and could equally have related to the claimant's concerns at the proposed disciplinary action and his transfer to Moy Park.

49. We consider in light of the above special circumstances arising between 30 March and 8 April 2016 of which the respondent was aware before processing the claimant as a leaver, that the respondent was not entitled to assume that the resignation apparently tendered on 30 March 2016 was a conscious rational decision by the claimant and consider that an intention to resign was not the correct interpretation when the facts are judged objectively. Accordingly by proceeding to issue the claimant's P45 despite the special circumstances in this case we find that it was in fact the respondent that really terminated the contract under which the claimant was employed and that claimant was dismissed in law by the respondent under Article 127(1) (a) ERO.

50. At the outset of the hearing the respondent confirmed that it would in the alternative raise a defence that if there was a dismissal that it was a fair dismissal. No case was however made out in the alternative or evidence presented to show a prima facie fair reason for dismissal under Article 130 ERO or indeed that the respondent had acted reasonably in all the circumstances in dismissing for such potentially fair reason. Whilst evidence was presented regarding disciplinary proceedings against the claimant in relation to lateness it was the respondent's own evidence that had these concluded with a finding against the claimant, this at worst would have resulted in a verbal warning. Accordingly we find that the claimant's dismissal was unfair under Article 130 ERO.

SUMMARY CONCLUSION

51. We find that the claimant was dismissed by the respondent, and the dismissal was unfair under Article 130 of the Employment Rights (Northern Ireland) Order 1996.

THE LAW RELEVANT TO REMEDY

52. Where a tribunal finds the grounds of complaint of unfair dismissal are well-founded the Orders it may make are set out at Article 146 ERO and include reinstatement, re-engagement and otherwise compensation. How compensation is to be calculated is set out in Articles 152 to 161.

53. The starting point for the calculation of the compensatory award is Article 157 (1) ERO which provides:

'(1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.'

54. The compensatory award should not be increased out of sympathy for the claimant or to express disapproval of the respondent. The claimant has a duty to mitigate his loss and the onus is on the respondent to show the claimant as unreasonable in the steps taken or not taken to do so. The compensatory and basic awards may be reduced where the claimant was guilty of blameworthy conduct (i.e. perverse, foolish or 'bloody-minded' or unreasonable in the circumstances) that contributed to the employer's decision to dismiss and the tribunal considers it just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault.

55. The statutory disciplinary and dismissal procedures (SDP) must also be followed in relation to any dismissal. Where the non-completion of the minimum procedure was wholly or mainly attributable to the failure by the employer or employee, an award of compensation shall as provided under Article 17 of the Employment (Northern Ireland) Order 2003 be increased or reduced by between 10 and 50 per cent by the tribunal save if there are exceptional circumstances which would make it unjust or inequitable in which case the tribunal may make no such adjustment or of such lesser percentage as it considers just and equitable in all the circumstances.

FINDINGS RELEVANT TO REMEDY ONLY

56. The respondent treated the contract of employment as ended on 30 March 2016, the material date upon which it was in fact ended by the respondent was 8 April 2016 and the effective date of termination (EDT) to include statutory minimum notice for the purpose of calculating a basic award is 15 April 2016. The claimant was aged 48 at the EDT and had one full years' service. His gross weekly pay was £231.81 and his net weekly pay £212.85. The claimant was certified as unfit for work by his doctor for 4 weeks from 31 March 2016 and under his contract of employment was entitled to SSP for qualifying days.

57. The c laimant sought compensation only. The claimant does not wish to return to work for the respondent whom he considers to have a monopoly on the type of operative shift work he seeks in the Dungannon area save for Mackles to whom he unsuccessfully applied for a position in April 2016 and Dundea Meats to whose premises the claimant considers travel costs would be prohibitively high to make working there financially worthwhile. The claimant does not have a car. The claimant would happily work again for Moy Park but has not seen any position with them advertised in the local papers and believes these are normally advertised internally. Due to his wife's illness following on from which she has suffered from depression, the claimant acts as his wife's full time carer for which he receives carer's allowance. The claimant gave evidence that he would not contemplate moving his wife from the area in which they are living and only considers shift work similar to that which he had with the respondent and which allowed him considerable flexibility suitable in his circumstances.

58. The claimant and his wife following the loss of his job with the respondent have been housed in temporary housing by the Housing Executive.

59. The claimant is in receipt of income support since 21 April 2016.

60. The claimant is in talks with the Irish Football Association which if successful could lead to full time employment for him in at best approximately 2 years' time.

61. The claimant sought a basic award of £347.71, compensatory award made up of immediate loss of 36 weeks' pay, future loss for 3 years, loss of statutory rights, notice pay and a statutory uplift of 10% for failure to follow statutory procedure.

62. The respondent took issue with the future loss sought by the claimant and raised a failure to mitigate but presented no evidence in support of the claimant having acted unreasonably in failing to seek alternative work. Contributory fault was not raised.

63. No exceptional circumstances were raised as to why an award should not be increased for failure to follow statutory procedures under Article 17 of the 2003 Order.

64. Taking into account the above, we award the following:

(1) Basic Award - under Article 153 ERO :-

£231.81 x 1.5 x 1 = £347.71

(2) Compensatory award - under Article 157 ERO with regard to the loss sustained by the claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the respondent we consider it just and equitable in all the circumstances to award the following by way of remedy:

(i) Immediate loss of earnings to date of hearing:

Say, 4 weeks SSP @ £ 88.45 £ 353.80

And

32 weeks @ £212.85 to the date of hearing £ 6,811.20

(ii) Future loss:

Given the variety of shifts undertaken by the claimant in the course of his employment with the respondent for minimum wage, that the claimant is in temporary housing, the special reasons put arising from the claimant's wife's illness and transport limitations, the tribunal considers that the claimant on continuing to make reasonable efforts to mitigate his loss is likely as the mid-point of probabilities to be reasonably able to secure other shift work at minimum wage within five months from hearing, albeit perhaps within a different sector, rather than 3 years. We accordingly assess the claimant's anticipated loss in the period following the hearing as follows:

Say 20 weeks @ £212.85 £ 4,257.00

(iii) Loss of statutory rights say £ 200.00

(iv) Notice period £ 212.85

Total compensatory award before adjustment: £11,834.85

(v) Failure to Take Reasonable Steps in Mitigation

The respondent has not shown the claimant to have unreasonably failed in his duty to mitigate his loss to the date of the hearing.

(vi) Failure to follow Statutory procedure.

In the absence of exceptional circumstances which would make an award or unjust or inequitable the tribunal increases the award by £1,183.49, the minimum amount of 10 % under Article 17 of the Employment (Northern Ireland) Order 2003.

Total compensatory award £13,018.34

TOTAL AWARD £13,366.05

RECOUPMENT

65. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) Regulations (Northern Ireland) 2010 and your attention is drawn to the attached notice:

(a) Monetary award	£13,366.05
(b) Prescribed element	£7,165.00
(c) Period to which (b) relates:	8 April 2016-6 December 2016
(d) Excess of (a) over (b)	£6,201.05

CONCLUSION

66. The claimant has been unfairly dismissed by the respondent contrary to Article 130 ERO and respondent shall pay the claimant compensation of £13,366.05

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

Employment Judge:

Date and place of hearing: 5 and 6 December 2016 at Belfast.

Date decision recorded in register and issued to parties:

CASE REF: 1547/16

CLAIMANT: Michael Kenny

RESPONDENT: Staffing Recruitment Limited

T/A Diamond Recruitment Group

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME -RELATED EMPLOYMENT AND SUPPORT 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; The Social Security (Miscellaneous Amendments No.6) Regulations (Northern Ireland) 2010.

	£
(a) Monetary award	£13,366.05
(b) Prescribed element	£7,165.00
(c) Period to which (b) relates:	8 April 2016 - 6 December 2016
(d) Excess of (a) over (b)	£6,201.05

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, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department for Communities 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, Income-related Employment and Support 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 for Communities 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 >> Kenny v Staffing Recruitment Ltd T... [2017] NIIT 01547_16IT (28 February 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/01547_16IT.html Cite as: [2017] NIIT 01547_16IT, [2017] NIIT 1547_16IT

Industrial Tribunals Northern Ireland Decisions

ANNEX TO THE DECISION OF THE TRIBUNAL