THE INDUSTRIAL TRIBUNALS

CASE REF:	7547/09

CLAIMANT:			Paul Sydney Heron

RESPONDENTS:		Philip Wright Development Ltd

DECISION 
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and that the claimant has suffered an unauthorised deduction from his wages.   The respondent shall pay the claimant £14,212.50.

Constitution of Tribunal:
Chairman:		Ms M Bell	
Members:		Mrs K Elliot
			Mr J Welsh

Appearances:
The claimant appeared and represented himself.

The respondent did not appear and was not represented.

THE CLAIM

1.	The claimant complained in his claim that he had been unfairly dismissed, that he had suffered an unauthorised deduction from wages and sought a redundancy payment.  

2.	No response has been presented by the respondent.

3.	In the last pay-slips received by the claimant the respondent is identified as Philip Wright Development Ltd and the title of the respondent is accordingly amended from Philip Wright Dev Ltd’ to ‘ Philip Wright Development Ltd’

ISSUES FOR THE TRIBUNAL

4.	The issues for the tribunal were as follows:-

(1)	Was the claimant unfairly dismissed?

(2)	Has the claimant suffered an unauthorised deduction from his wages?

(3)	Is the claimant entitled to a redundancy payment?

EVIDENCE

5.	The tribunal considered the claim, documentation presented by the claimant and heard the claimant’s oral evidence.

FACTS FOUND

6.	The claimant, born on 18 March 1981, was employed by the respondent as a general labourer on 1 September 2005.  He was promoted to contracts manager in late 2007 and received £400 gross per week, being £300 net.  The claimant was not provided with a statement of particulars in respect of his employment and did not receive pay-slips following his promotion.

7.	The claimant was normally paid by the respondent each Friday but did not receive his wages for work done for the weeks ending 21, 28 August, 4, 11, 18 and  25 September 2009, amounting to £1,800.

8.	The claimant on Friday 25 September 2009 after work left his work van outside his house and went away for a weekend with friends.  On Monday 28 September 2009 following his return the claimant discovered that the respondent had taken the work van from outside his house, the claimant’s only means of transport to work, the claimant tried to contact the respondent but despite numerous attempts did not succeed in speaking to him until Wednesday 30 September 2009 when the respondent informed the claimant that he had no more work for him and that he should sign on for benefits.  The claimant asked the respondent for six weeks wages amounting to £1,800 outstanding to him and £200 in respect of other outgoings he had incurred but the respondent told the claimant that he had no money with which to pay him.

9.	The claimant wrote to the respondent on 19 October 2009 seeking the £2,000 owing to him and a redundancy payment, no response was received.

10.	The claimant does not believe that a genuine redundancy situation existed but that another person is carrying out the work now that he did for the respondent.  

11.	Following termination of his employment the claimant applied for Jobseeker’s Allowance and despite ongoing attempts has not to date succeeded in obtaining alternative employment.

12.	The claimant sought an order for compensation only.

THE LAW

13.	The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal.  The standard procedure consists of three steps, in summary requiring an employer to provide an employee at Step 1 with a written statement of grounds for action and an invitation to a meeting, at Step 2 a meeting, and at Step 3 an appeal.

14.	By virtue of Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.  Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined, however under Article 130A (1) “an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a)	one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,

(b)	procedure has not been completed, and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”

15.	Where an industrial tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the Orders it may make are set out at Article 146 of the 1996 Order and include Orders for reinstatement or re-engagement and otherwise compensation.  How compensation is to be calculated is provided in Articles 152 to 161.

16.	There is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which includes Article 145 of the 1996 Order (unfair dismissal)] by an employee where it appears to the industrial tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%. 

17.	Article 45 of the 1996 Order provides that an employer shall not make a deduction from wages of a worker employed by him save where authorised by statutory provision or relevant written contractual provision or agreed to in writing by the claimant before the event giving rise to the deduction.  A deduction occurs where a worker is on any occasion paid less than the total amount of wages properly payable to him.  The meaning of wages is set out in Article 59 but excludes any payment in respect of expenses incurred by the worker in carrying out his employment. 

18.	An employee has a right to payment of a redundancy payment under Article 170 of the 1996 Order if he is dismissed by the employer by reason of redundancy. Under Article 174 an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:- 

(a)	the fact that his employer has ceased or intends to cease — 

(i)	to carry on the business for the purposes of which the employee was employed by him, or

(ii)	to carry on that business in the place where the employee was so employed, or

(b)	the fact that the requirements of that business — 

(i)	for employees to carry out work of a particular kind, or

(ii)	for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.

APPLICATION OF LAW TO FACTS FOUND

19.	The tribunal is satisfied on the basis of the claimant’s undisputed evidence that even had a genuine redundancy situation actually existed, the first-named respondent has clearly failed to follow the bare minimum statutory procedure required where an employer is contemplating a dismissal, the respondent having merely informed the claimant verbally on 30 September 2009 following removal of his work van on 28 September 2009 that there was no more work for him.  No written invitation to a meeting was given to the claimant setting out grounds for action before the dismissal of the claimant nor was he provided with an opportunity to appeal the decision.  The tribunal accordingly finds that the claimant’s dismissal was automatically unfair under Article 130A(1) of the 1996 Order, the non-completion of the applicable dismissal and disciplinary procedures being wholly attributable to the failure of the respondent to comply with its requirements.  The tribunal is also satisfied in the alternative that the claimant’s dismissal was unfair under Article 130 of the 1996 Order the first-named respondent having failed to show either redundancy as suggested by the respondent to the claimant or another potentially fair reason under the Order such as to justify the dismissal. The tribunal furthermore considers that it is just and equitable in all the circumstances of this case to increase the award for unfair dismissal by 25% in light of the respondent’s complete disregard for the statutory dispute resolution procedures.

20.	The tribunal is satisfied that the respondent has not paid the claimant six weeks wages for the weeks ending 21, 28 August, 4, 11, 18, and 25 September 2009 amounting to £1,800.00 and that the claimant has suffered an unauthorised deduction in respect thereof.  The £200 expenses claimed by the claimant as having been incurred in the course of his employment are not however recoverable as an unauthorised deduction, expenses being excluded under Article 59 of the 1996 Order.

21.	On the basis of the claimant’s own evidence the tribunal is not satisfied that the claimant was dismissed for a redundancy reason as defined at Article 174 of the 1996 Order and find that the claimant is not entitled to a redundancy payment.  If the claimant had been entitled to a redundancy payment this would in any case have cancelled out the basic award for unfair dismissal. 

22.	The claimant sought compensation only by way of remedy and the tribunal accordingly orders the respondent to pay the claimant compensation as follows:-

COMPENSATION FOR UNFAIR DISMISSAL

Basic Award

4 weeks X £400 =							£ 1,600.00

Compensatory Award

Loss of Earnings
	
28/09/09 to date of hearing, say 

28 weeks @ £300.00    =						£ 8,400.00

Loss of statutory rights

										£    250.00

Uplift under Article 17 
	
Total compensatory award before uplift =			£  8,650.00

25% uplift =								£ 2,162.50

Total compensatory award for unfair dismissal =		£10,812.50

Unauthorised deduction

6 weeks wages @ £300.00 =					£  1,800.00

TOTAL								£14,212.50

CONCLUSION

23.	The tribunal finds that the claimant was automatically unfairly dismissed by the respondent and has suffered an unauthorised deduction from his wages.  The respondent shall pay the claimant £14,212.50.  The claimant is not entitled to a redundancy payment and his claim in respect thereof is dismissed. 

RECOUPMENT

24.	Your attention is drawn to the Notice attached which forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing: 13 April 2010, Belfast

Date decision recorded in register and issued to parties:

Case Ref No:  7539/09

CLAIMANT:		Paul Sydney Heron

RESPONDENT:	Philip Wright Development 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	£14,212.50	
(b)  Prescribed element	£8,400.00	
(c)  Period to which (b) relates:	28 September 2009– 
13 April 2010	
(d)  Excess of (a) over (b)	£5,812.50	

	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 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 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 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 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.