THE INDUSTRIAL TRIBUNALS 

CASE REF: 6821/09
7347/09

CLAIMANT:	Sean Anthony Gallen			

RESPONDENTS:	1. Patrick McLaughlin 
	2. McLaughlin Ireland Limited 			

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to the compensation and unpaid wages set out in the Schedule hereto.

Constitution of Tribunal:		

Chairman:				Mr P Cross		

Panel Members:			Mr J Devlin
					Ms T Madden	

Appearances:

The claimant appeared in person and was not represented.

The respondents did not appear at the hearing and were not represented.

FINDINGS OF FACT

1. 	The claimant, who was born on 17 August 1973, commenced employment with a company called TTS Limited in April 2007. This was a company owned by the first named respondent. By 1 July 2007 the claimant had been transferred to the second named respondent, another company owned by the first named respondent and the claimant’s employment continued with that company until he was dismissed on 
4 August 2009.

2. 	On 7 September 2007, the claimant was issued with a contract of employment. This incorrectly stated that the claimant’s employment started on 1 September 2007. 

3. 	The claimant’s gross wage as an HGV driver was £577.00 per week. His net pay was £450.00 per week. The claimant has named the second named respondent and the first named respondent as respondents. However the claimant produced pay slips from both TTS Limited and the second named respondent, which confirmed that the companies were employing the claimant and not the first named respondent who is accordingly dismissed from this case.

4. 	In June 2009 the claimant was informed that he was going to have to accept a pay cut and that certain allowances were being withdrawn. On 27 July a new contract was issued to the claimant and he was asked to sign it. He was told that if he did not sign it there would be no work for him. The claimant did not sign the new contract.

5. 	The claimant was then on sick leave for a while and whilst sick with stress and anxiety (certified by his GP), on 5 August 2009 he was issued with a P45 which he took as a notice of dismissal. Subsequently the claimant received a cheque from the second named respondent for £450.00 described as a redundancy payment.

6. 	The claimant wrote to the respondents asking for reasons for the non payment of money due to him and concerning his redundancy situation. He received no reply to this letter and now understands that the second named respondent is in a Creditor’s Voluntary Winding up, but without a Court Order. The tribunal was notified by the Liquidator that she did not intend to be present at this hearing. 

 THE LAW
	
7. 	The claimant claims that he was unfairly dismissed. Under the provisions of Article 126 of The Employment Rights (Northern Ireland) Order 1996 (the 1996 Order):-.

126  “An employee has a right not to be unfairly dismissed by his employer.”
 
Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question.

8. 	Certain dismissals are declared by Statute to be automatically unfair. One such is where the employer fails to comply with the terms of Article 130A of the 1996 Order. This states that a dismissal is to be regarded as unfair, if one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), has not been complied with and the non compliance is wholly or mainly attributable to the failure of the employer/respondent. The procedure referred to in Schedule 1 of the 2003 Order provides for the employer to give written information to the employee as to its reason for wishing to terminate the employment of the employee and to invite the employee to a meeting to discuss the matter. The meeting must take place before the action of dismissal is implemented and if the employer is still intent on dismissing the employee it must give the employee a right of appeal. If it fails to carry out this procedure then the subsequent dismissal is automatically unfair. This is known as a failure to follow the statutory dismissal procedure.

9. 	If the tribunal is satisfied that the claimant has been unfairly dismissed, it can award the claimant compensation, payable by the respondent. The tribunal, if the statutory procedures are not complied with, must increase the award of compensation that it makes by 10 per cent, (Article 17 of the 2003 Order). The tribunal also has power, under the same Article, to increase the award by a further percentage, up to 50 per cent, if the tribunal considers it just and equitable so to do. Furthermore, the tribunal must award the claimant a sum equal to 4 weeks salary, if the basic award would otherwise be less than four weeks, if the respondent has failed to implement the statutory dismissal procedure; unless the tribunal decides that it would be unjust and inequitable to so award. (Article 146 of the 1996 Order).

10. 	The fact that the claimant’s contract of employment was transferred from his first employer to the second named respondent does not interrupt his period of employment.  His contract of employment had reached the second named respondent through the operation of The Transfer of Undertakings (Protection of Employment) Regulations 2006, (hereinafter called TUPE) and its predecessor legislation.

11.   The second named respondent went into Administration on 24 March 2009.

DECISION

12. 	The tribunal hold that the claimant was dismissed by the second named respondent in breach of the statutory procedures set out in the 2003 Order and described above. This being the case the dismissal is automatically unfair and consequently the claimant is entitled to compensation as set out in the Schedule below. In accordance with Article 17 of the 2003 Order the tribunal increases its award by 20% to reflect the failure of the respondent to comply with the statutory procedures. The tribunal also awards four weeks salary as the basic award, to reflect the respondent’s complete disregard for the statutory dismissal procedure. 

13. 	The claimant, despite making strenuous efforts to find another job has been unsuccessful. The tribunal accordingly award to the claimant compensation up to the date of this hearing. During this period the claimant was in receipt of job seekers allowance. From the date of this hearing the tribunal award to the claimant 12 weeks future loss at the same rate. Details of the compensation payable are set out in the Schedule below.

14. 	The tribunal also award to the claimant, four weeks pay in lieu of the notice that he never received and 3 days holiday pay and one week pay at the statutory sick pay rate for the period before he was dismissed, when he was on sick pay.
	
SCHEDULE

Basic award
 
This is increased to 4 weeks, as the statutory procedures were
not  followed. 

4 x £350.00 (statutory maximum at date of 
dismissal.                                                                                                       £  1,400.00

Compensatory award

Loss of earnings from date of dismissal to date of tribunal
being 35 weeks at £450.00 							£15,750.00

Future loss 12 weeks at £450.00                                                                   £  5,400.00

Loss of statutory rights                                                                                   £     250.00

Uplift to compensatory award 20%of £21400.00                                           £   4,280.00  

Pay in lieu of notice 4 weeks at £450.00                                                         £  1,800.00
 
Unpaid holiday pay 3 days at £90.00 per day                                               	  £     270.00

Unpaid wages 1 week at statutory sick pay rate of                                         £       71.52
   _________

Total compensation payable                                                                             £29,221.52

Less sum paid by the respondents to the claimant                                           £     450.00
											  __________
Total due                                                                                                           £28,771.52                                                            

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

16.	 The Employment Protection (Recoupment of Jobseeker’s Allowance and Income     Support) Regulations (Northern Ireland) 1996 apply. 

17.	Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Chairman:

Date and place of hearing:  7 April 2010, Omagh.

Date decision recorded in register and issued to parties:

Case Ref No: 6821/09
                        7347/09	

  CLAIMANT:		Sean Anthony Gallen	

RESPONDENTS:  		1. Patrick McLaughlin
				2. McLaughlin Ireland Limited	

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	28771.52	
(b)  Prescribed element	15750.00	
(c)  Period to which (b) relates:	4 August 2009 – 7 April 2010 	
(d)  Excess of (a) over (b)	13021.52	

	The applicant 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 applicant in respect of that period; (b) is not payable until the Department of Health and Social Services 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 applicant 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 applicant.

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 applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services 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 applicant, 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 applicant and regardless of any dispute between the applicant and the Department.