THE INDUSTRIAL TRIBUNALS

CASE REF:	618/08

CLAIMANT:			David Thomas Wilson

RESPONDENT:		Stephen Issacc

DECISION 
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is due the sum of £2,550 in respect of unfair dismissal compensation, redundancy pay and notice pay.  The claim for holiday pay is dismissed.

Constitution of tribunal:
Chairman:		Mrs Ó Murray
Members:		Mr O Field
			Ms G Ferguson

Appearances:
The claimant did not appear and was not represented.
The respondent had not filed a response form, did not appear and was not represented.
The claim
1.	The claimant’s claims were for a redundancy payment, unpaid wages, holiday pay and notice pay.

The issues

(1)	What was the reason for the dismissal?

(2)	Was that reason one of the potentially fair reasons outlined in the legislation?

(3)	Was the dismissal unfair?

(4)	Were the statutory dismissal procedures followed?

(5)	Was the claimant due a redundancy payment?

(6)	Was the claimant due pay in lieu of notice?

(7)	Was the claimant due holiday pay under the Working Time Regulations and under contract?

Sources of evidence

2.	Neither the claimant nor the respondent appeared.  The respondent had not filed a response form despite having been given an extension of time to do so.  Given that neither party appeared at the hearing, the tribunal considered its powers under Rule 27(5) which stipulates that if a party fails to attend or be represented at the hearing the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.  

3.	Under Rule 27(6) if the tribunal wishes to dismiss or dispose of the proceedings it must first consider any information in its possession.  The tribunal had the claimant’s claim form in its possession.  On the file there was also a letter from an accountant seeking an extension of time for the response form to be lodged on behalf of the respondent.  On foot of that letter the extension of time was granted but no response form was lodged.  The tribunal has therefore not had regard to the points made in that letter given that the respondent had an opportunity to put in a response and failed to do so and could have attended today but failed to do so.

Findings of fact

4.	The tribunal decided to deal with the proceedings on the papers and made the following findings of fact.

5.	The claimant was born on 6 January 1984 and was employed as a bar manager at the Nest bar in Belfast from 2 February 2006 until 8 February 2008.  He earned £304 gross per week making a figure of £243 net per week for a 40-hour week.  

6.	On 8 February 2008 the claimant arrived at work to find the locks changed and when he rang the owner the owner said the bar had closed and would never reopen. 

7.	The claimant was paid his week’s wage and when he phoned the owner to ask about the rest of the money due to him the respondent said:  “Fuck off you won’t be getting any more money off me”.

8.	The claimant wrote on 15 March 2008 to the respondent to ask for the outstanding monies for holiday pay, severance pay and notice pay.  No response was received to that letter.

9.	The claimant started a new job on 26 February 2008 earning £305 gross per week and £245 net per week.

The Law

Unfair dismissal

10.	The right not to be unfairly dismissed is outlined at Article 126 of the Employment Rights (Northern Ireland) Order 1996.  If an employee was dismissed, it is for the employer to show that the reason for the dismissal falls within one of the potentially fair reasons outlined in the legislation.  One of those reasons is redundancy.  If the tribunal finds that the dismissal was for one of the potentially fair reasons for dismissal the tribunal then goes on to decide whether or not the dismissal was fair in all the circumstances.

11.	Under the Statutory Dismissal Procedure, introduced by the Employment Order (NI) 2003, if an employer wishes to dismiss an employee for redundancy or any other reason, the employer must go through a minimum statutory procedure.  That procedure stipulates that the employer must set out in writing the reason for the proposed action, must invite the employee to a meeting for the matter to be discussed, must communicate the decision to the employee and advise of the right to appeal.  If the right to appeal is exercised by the employee there must be another meeting and the outcome must be communicated to the employee.  All meetings and actions must take place at a reasonable time and place.  

12.	If the dismissal procedure is not followed and this is due to the fault of the employer, the ensuing dismissal is automatically unfair and the tribunal must award a minimum basic award of 4 weeks’ gross pay.

13.	If failure to follow the statutory procedure is because the employer is at fault the tribunal must increase the compensatory award for unfair dismissal by 10% and may increase that award by a percentage up to 50%.  Article 159 of the ERO and Article 17 of the Employment Order (NI) 2003.  The amount of the basic award for unfair dismissal where the statutory procedures have not been complied with by the employer must amount to a minimum award of four weeks pay unless the tribunal determines that such an increase would result in injustice to the employer.

Redundancy payment

14.	The right to redundancy payment arises under Article 170 of the ERO.  In order for an employee to be entitled to a redundancy payment he must show that he was an employee, that he was continuously employed for 2 years, that he was dismissed and that the dismissal was by reason of redundancy.  

15.	Redundancy is defined at Article 174 which states that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the employer has ceased either, to carrying on the business for the purposes of which the employee was employed by him, or to carry on that business in the place where the employee was so employed.  

16.	The amount of any redundancy payment is determined by reference to the employee’s age, length of continuous employment and gross weekly wage.

17.	If the tribunal awards a sum for a redundancy payment this has the effect of extinguishing any basic award for unfair dismissal under general principles.

Notice pay

18.	An employee is entitled to one week’s notice for each full year of employment under Article 118 of the ERO.  If the employee is dismissed without notice, the claim is for breach of contract for compensation for pay in lieu of notice.  The tribunal’s contract jurisdiction is conferred by the Industrial Tribunals Extension of Jurisdiction Order 1994.  

Holiday pay

19.	The Working Time Regulations (NI) 1998 as amended set out the statutory entitlement to paid holiday.  In the claimant’s case his entitlement was 24 working days per annum.  The holiday year can be stipulated in the contract or failing that it runs from October to October.  If the employee’s contract is terminated part way through the holiday year, the employee has the right to payment in lieu of untaken holiday.  If the employer fails to pay any holiday pay due under that provision the employee can make a complaint under Article 30(5) and if the tribunal finds that complaint to be well-founded it must order the employer to pay the employee the amount it finds to be due to him.

Conclusions

20.	The tribunal applied the law to the facts found and concluded as follows.

21.	Unfair dismissal and redundancy:  The reason for the dismissal was redundancy as the employee’s place of work closed.  Redundancy is one of the potentially fair reasons for dismissal.

22.	The statutory dismissal procedure was not followed and therefore that dismissal was automatically unfair so four weeks pay is due as a minimum basic award. 

23.	No redundancy payment was made even though a redundancy payment was clearly due so the claimant is awarded 2 weeks’ gross pay.

24.	In relation to unfair dismissal the basic award is extinguished by the redundancy payment so the basic award is zero.  However under the statutory dismissal provisions, if the basic award is lower than four weeks’ gross pay the tribunal must award the sum of four weeks’ gross pay.

25.	The compensatory award comprises the loss of statutory industrial rights alone as no loss is claimed by the claimant between the EDT and the date on which he started his new job.  There was no continuing loss because the new job was paid at a higher salary.  A percentage of 10-50% on the compensatory award is applicable because of the employer’s failure to follow the statutory dismissal procedure.  The tribunal has decided to award 20% uplift on the compensatory award because the claimant was surprised by the dismissal having turned up at his place of work to find that the locks had been changed.  In addition the respondent’s attitude when the claimant tried to find out the position and tried to ask for the sums due to him was indicative of a completely cavalier approach to the dismissal.

26.	Notice pay:  The claimant was entitled to two weeks’ notice as a statutory minimum but was not paid for the untaken notice.  The tribunal therefore awards two weeks net pay in lieu of notice.  

27.	Holiday pay:  There was no evidence on the papers of the terms of the claimant’s contract as regards holiday pay so the tribunal had no evidence as to when the holiday year started and finished, had no evidence as to whether any holidays had been taken by the claimant and whether there were any outstanding holidays.  The burden was on the claimant to show that he was due a payment for untaken holidays.  As the claimant has not provided details of the holiday year nor of the outstanding number of days due to him, he has not discharged that burden and no award is therefore made by the tribunal in relation to holiday pay.

28.	The calculation of compensation therefore is as follows:

	Redundancy
	2 years x 1 multiplier x £304.00 gross 	=		 £608

	Unfair dismissal

	Basic award

	4 weeks x £304 gross 			=		£1216

	Compensatory award

	Loss of statutory industrial rights		=		  £200

	20% uplift					=		    £40

	Notice pay		
			
	2 weeks x £243 net 				=		   £486

	Total:						=		£2,550

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

Chairman:

Date and place of hearing:	5 September 2008, Belfast

Date decision recorded in register and issued to parties: