THE INDUSTRIAL TRIBUNALS

CASE REF:  1224/08

CLAIMANT:			Tony McFloane

RESPONDENT:		K.P.H. Groundworks (IRE) Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal awards compensation in the sum of £3,570.00.

Constitution of Tribunal:
Chairman:		Mrs A Wilson
Members:		Mr J Nicholl
			Ms M Mulligan

Appearances:
The claimant was represented by Ms Ellis, Barrister-at-Law, instructed by Patrick J J McGuckin, Solicitors.
There was no appearance by or on behalf of the respondent.

SOURCES OF EVIDENCE

The tribunal considered the claim form, the response and the oral testimony of the claimant.

ISSUES

 1.	The claimant’s claim was that he was unfairly dismissed without proper notice.  The issues for the tribunal were:-

		(a)	Was the claimant dismissed?

		(b)	If yes, what was the reason for the dismissal?

(c)	Did that reason fall within one of the fair reasons outlined in the legislation?

		(d)	Was that dismissal fair in all the circumstances?

		(e)	If not what compensation if any should be awarded?

(f)	What notice did the claimant receive and did it comply with his statutory entitlement?

FINDINGS OF FACT

 2.	The claimant was continuously employed as a groundsman from 2 January 2006 until 6 June 2008 when he was dismissed by the respondent.

 3.	At the time of his dismissal the respondent contended that the claimant was being laid off due to a lack of work.  However at that time the claimant was working on a job that was only partially completed and another job was due to start in Dungannon.

 4.	The claimant was replaced initially by an agency worker and subsequently by a second agency worker who carried out the work previously undertaken by him.

 5.	The claimant was aged 45 at the time of dismissal and was earning £120.00 gross per week. His net weekly pay was £110.00.

 6.	The claimant was dismissed with one week’s notice and the statutory disciplinary procedures were neither commenced nor followed.

 7.	The claimant actively sought work but was unemployed until in or around 12 September 2008 at which time he secured employment on a comparable rate of pay.

 8.	Whilst unemployed and looking for work the claimant claimed Jobseeker’s Allowance in the weekly sum of £60.00.

THE LAW AND CONCLUSIONS BASED ON THE APPLICATION OF THE LAW TO THE FACTS

 9.	The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “the Order”).

	At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).

10.	The respondent in its response contends that the claimant was laid off due to lack of work.  The claimant gave evidence which the tribunal accepts that there was no lack of work, that he was dismissed whilst working on a partially complete job, that another job was due to start in Dungannon and that agency workers were engaged to carry out work previously undertaken by him.

11.	The tribunal find that the respondent has not compiled with Article 130 of the Order in that the tribunal do not accept the reasons given by the respondent for the dismissal and consequently the tribunal find that the dismissal was unfair.

12.	Furthermore the tribunal find that there was a total disregard of the statutory dismissal procedures.  Accordingly the dismissal of the claimant is automatically unfair by virtue of Article 130 A(1) of the Employment Rights (Northern Ireland) Order 1996 and Article 17(3) of the Employment (Northern Ireland) Order 2003 applies so as to allow the tribunal the discretion to increase any award payable subject to an upper limit of 50% uplift.

13.	Article 118 of the Order sets out the minimum statutory notice requirement which is one week’s notice for each year of continuous employment if the employee has been employed for two years or more.

14.	The claimant was employed for two years and five months and was entitled to two week’s notice in circumstances where he received one week’s notice.

15.	The remedy for breach of the entitlement to notice falls within the tribunal’s jurisdiction for claims involving breach of contract and is set out in Industrial Tribunals Extension of Jurisdiction Order (NI) 1994.

Compensation

16.	Article 152 of the Employment Rights (Northern Ireland) Order 1996 provides that compensation awarded by a tribunal should consist of a basic award and a compensatory award.

The Basic Award

17.	Article 153 sets out the formula by which such basic award is to be calculated.  Based on that provision and applying Article 53 the tribunal calculate the basic award as follows:-

	The effective date of termination is 6 June 2008 at which time the claimant was aged 45, was earning £110 net per week and had two full years employment.

18.	£110  x  (1.5 x 2)  =  £330 (total basic award).

The Compensatory Award

19.	Article 157 sets out the formula to be followed in calculating the compensatory award and applying that formula the tribunal calculated the compensatory award as follows:-

Loss of earnings (gross) 6 June 2008 to 12 September 2008  =  14 weeks  x  £120  =  £1,680.00.

Loss of statutory rights  =  £250.00

	Total compensatory award  =  £1,930.00

Notice Pay

20.	The claimant is entitled to the further sum of £120.00 in respect of notice pay.

	Total award  =  £2,380.00

21.	The tribunal awards a statutory uplift of 50% under Article 19 of the Employment (Northern Ireland) Order 2003 given the serious failure without explanation by the employer to follow any statutory procedures whatsoever.

	Increase of award by 50% (failure to follow statutory procedures) = total award of £3,570.00.

	Total amount due of £3,570.00.

Recoupment

22.	This is a relevant decision for the purposes of recoupment.

Recoupment of benefit received by the claimant.

The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case.  Rule 4 (3) of these Regulations require the tribunal to set out

(a)	the monetary award;

(b)	the amount of the prescribed element, if any;

(c)	the dates of the period to which the prescribed element is attributable; and

(d)	the amount if any by which the monetary award exceeds the prescribed element.

23.	For the purpose of these proceedings the monetary award is £3,570.00.  [Basic award + compensatory award + notice pay + uplift].

24.	The prescribed element is that amount of the monetary award which represents in this case compensation for loss of earnings up to 12 September 2008 being the date the claimant found alternative employment.  The tribunal find that the amount of the prescribed element is £1,680.00 attributable to the period 6 June 2008 to 12 September 2008.

	Accordingly the amount by which the monetary award exceeds the prescribed element in this case is £3,570.00 less £1,680.00  =  £1,890.00.

25.	The attached Recoupment Notice forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing:	5 May 2009, Belfast.

Date decision recorded in register and issued to parties: