THE INDUSTRIAL TRIBUNALS

CASE REF:  212/08

CLAIMANT:			Kyle Ashley Traynor

RESPONDENT:		Balmoral Golf Club Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and the respondent shall pay to the claimant the sum of £3,373.70 by way of compensation.

Constitution of Tribunal:
Chairman:		Mr M Davey
Members:		Mrs O’Kane
			Mr Edmont

Appearances:
The claimant appeared in person.
There was no appearance by or on behalf of the respondent.

REASONS
 1.	The claimant appeared in person.  There was no appearance by the respondent and no response had been filed.  It was clear that the respondent was aware of the proceedings since a request for an extension of time in which to lodge a response had been made and granted.  However, no response was filed.  

 2.	The claimant’s evidence was to the effect that he had worked for the respondent since 24 December 2006 until 26 January 2008 when his employment was terminated.  He stated that on 26 January 2008 he had gone into work as usual.  He had worked until 4.30pm when his manager, Mr Alan McWhirter, asked him to come to the office.  He thought it was about a pay rise but found, instead, that Mr McWhirter was saying that he would have to let him go.  Mr McWhirter said that his back was against the wall and that the council had told him he had to get rid of staff.  The claimant went to finish his shift and was on the rota for work the following week but he was told that he could go immediately.  On 28 January 2008, the claimant stated he wrote to his employers asking the basis why he had been selected for dismissal, particularly since he had been one of the longest there.  He received no reply.  About a week later he received his P45 together with a payment for outstanding wages and holiday pay.  He received no other communication of any kind from the respondents.

	The claimant’s mother also gave evidence.  She stated that she knew the claimant’s manager and phoned him following the termination of the claimant’s employment.  He said then that he had no other choice but that he was not paying the claimant off.  However, he also said that he was not proposing to pay him any salary either.  The manager also spoke to the claimant’s mother on other occasions, once to ask her to intervene in relation to proceedings brought by the claimant, and once to enquire if the claimant would be interested in further employment with the respondents.

 3.	The tribunal found the claimant to be a credible witness and accepted his evidence.  In the tribunal’s view the phraseology used clearly amounted to a dismissal.  No reason for dismissal was given to the claimant at the time or at any later time other than the suggestion that a reduction in the number of staff was required.  However there was no evidence before the tribunal to enable it to determine whether or not a redundancy situation existed.  Nor, if that were the case, was there any evidence to determine whether a satisfactory selection procedure had been used.  In these situations it is for the employer to show the reason for dismissal and to show that it was fair in all the circumstances for the dismissal to have taken place.  That has not been done and the tribunal found that the dismissal was unfair.  In any event on the basis of the evidence before the tribunal there was no question of the statutory dismissal procedures having been complied with.

 4.	The claimant was 21 years of age having been born on 22 March 1987.  His pay at the time of his dismissal was £209.76 per week gross, £186.79 net.  He had worked for his employer for something over one year.  He had been paid weekly and accordingly, on both a contractual and a statutory basis he would have been entitled to one week’s notice.  None was given.  The claimant had not obtained work since his dismissal.

 5.	The basic award applicable to the claimant is in respect of one year’s service at a time when he was below the age of 22.  Pursuant to the provisions of Article 153 of the Employment Rights (Northern Ireland) Order 1996 one half of one week’s pay is applicable amounting to ½ x £209.76 = £104.88.

	The tribunal considers that, if the claimant had made satisfactory efforts to obtain alternative employment he should have been able to obtain such employment within 13 weeks.  Accordingly the tribunal awards 13 weeks net pay by way of loss of earnings.

	The claimant would also be entitled, under good industrial relations practice, to pay in lieu of notice.  As he was entitled to one week’s notice it is appropriate to award him one week’s net pay.  

 6.	There was no question of the statutory dismissal procedures having been complied with.  Indeed the entire dismissal took place in an abrupt and unsatisfactory way with no reply having been sent to the claimant following enquiry as to the basis of his dismissal.  Where statutory procedures are not complied with the tribunal is required, in the absence of special circumstances, to increase the amount of the awards by a minimum of 10% rising to a maximum of 50%.  In the circumstances of this case the tribunal considers that an increase of 25% would be appropriate.

 7.	In the light of the above the amount payable by the respondent to the claimant is as follows:-

	Basic Award									   £104.88

	Compensatory Award		£2,428.27

	Notice Pay				   £186.79
						£2,615.06

	PLUS 25% uplift			   £653.76				£3,268.82

									TOTAL	£3,373.70

 8.	The claimant had also claimed for outstanding wages and holiday pay.  However, the respondents had made payment of these obligations following the claimant’s departure and accordingly these claims are dismissed.

RECOUPMENT

 9.	The recoupment provisions apply.

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

Chairman:

Date and place of hearing:	12 June 2008, Belfast.

Date decision recorded in register and issued to parties:

Case Ref No:  212/08

CLAIMANT:	Kyle Ashley Traynor

RESPONDENT:	Balmoral Golf Club Ltd

ANNEX TO THE DECISION OF THE TRIBUNAL

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.

	£	
(a)  Monetary award	£3,373.70	
(b)  Prescribed element	£2,428.27	
(c)  Period to which (b) relates:	26 January 2008 – 
26 April 2008	
(d)  Excess of (a) over (b)	£945.43	

	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.