THE INDUSTRIAL TRIBUNALS

CASE REF:	341/13 

CLAIMANT:			Jan Dudzik

RESPONDENT:		Fisher Metal (NI) Ltd

DECISION 
The decision of the tribunal is that the claimant was unfairly dismissed and is awarded compensation of £28,255.  The claimant is also entitled to the sum of £112.80 in relation to unpaid holiday pay; £380 in relation to unpaid notice pay and £740.44 in relation to unpaid wages.

Constitution of Tribunal:
Chairman:		Mrs Ó Murray
Members:		Mr J Magennis 
			Mrs M O’Kane 

	
Appearances:
The claimant appeared in person.

There was no appearance by the respondent.

Reasons

1.	The respondent did not appear and was not represented despite enquiries being made on the morning of the hearing.  The tribunal therefore proceeded to hear evidence from the claimant and considered the claim and response forms and the documentation presented by the claimant.  The tribunal found the following facts proved on a balance of probabilities and reached the following conclusions.

2.	The claimant was employed in various capacities by the respondent from 25 June 2011 to 25 January 2013.  The claim was for unfair dismissal, unpaid wages, holiday pay and notice pay.

3.	Richard Fisher was effectively the proprietor of the respondent with whom he had daily contact.  It was Mr Fisher who directed the claimant as to the work he had to do and the sites he had to go to each day.  We note that the respondent’s response form indicated that Mr Fisher was not an employee of the respondent but acted as a consultant and therefore had no authority to sack the claimant.  

4.	The principle is that a company will be bound by the actions of any officer who has either actual or ostensible authority, that is, that he either has the authority, or is held out as having the authority, by someone capable of binding the company.  Harvey states as follows in relation to the effect of this principle:

	“…the position would be otherwise if both sides appreciated that what was done was of no practical effect or significance.  This would cover, for example, a purported dismissal by someone with no actual or ostensible power to dismiss.  But in such circumstances one would expect the employer speedily to restore the employee to full status on becoming aware of the action wrongly taken in his name”.  (Para 251 Div DI)

5.	The respondent in this case became aware immediately after the dismissal that Mr Fisher had dismissed the claimant yet the respondent failed to engage with the claimant and failed to restore him to his employment if it was in fact the case that Mr Fisher had no authority to sack him.  We accept the claimant’s evidence that Mr Fisher was effectively the proprietor and had authority to dismiss him.  We therefore find that Mr Fisher had actual or ostensible authority to dismiss the claimant on behalf of the respondent.

6.	We accept the claimant’s evidence that on 25 January 2013 when the claimant rang Mr Fisher to query the shortfall in his pay, he was verbally threatened by Mr Fisher and was told by him to: “Fuck off and don’t return to work”.  The words used were unambiguous words of dismissal and were taken as such by the claimant who did not return to work after that date.  There was no contact from the respondent following that date.  We therefore do not accept the respondent’s case in the ET3 that the claimant simply resigned.

7.	The effective date of termination (EDT) was 25 January 2013 and no procedure, whether statutory or otherwise, was followed by the respondent.  The dismissal was therefore automatically unfair and was also unfair on ordinary principles.

Unpaid wages

8.	We accept that the claimant had a continuing problem with shortfalls in his pay which meant that he had to press the respondent to pay him his full pay and 

	overtime and travel allowance.  We find that the following sums are due to the claimant and award compensation as follows:

	(1)	May 2012:   
				8.5 hours work @ £8.50 per hour		= 		        £72.25			Overtime 3 hours @ £10.62		=		        £31.86	             		
	(2)	Week ending 16 January 2013:  
				6 hours travel @ £8.50 per hour		=		        £51.00
			           20.5 hours overtime @ £10.62 per hour	=		      £217.71
		
	(3)	Week ending 23 January 2013:
		 		2 hours travel @ £8.50			=		        £17.00			22 hours work @ £8.50			= 		      £187.00						
	(4)	Week ending 30 January 2013:
				17.25 hours work @ £8.50		           = 		      £146.62
				 2 hours travel allowance @ £8.50	= 		        £17.00
												__________

							   Total unpaid wages		      £740.44
												__________

Holiday pay

9.	The claimant did not have a written contract and, under the Working Time Regulations, the holiday year therefore runs from October each year.  The claimant was entitled to 28 days per annum to include public and bank holidays.  The claimant had taken three days holidays from his entitlement when his employment was terminated approximately four months into the leave year.  The claimant was therefore entitled to 1/3 of his holiday entitlement which amounted to 9.5 days.  The three days holidays taken are deducted from that sum to leave a balance of 6.5 days.

10.	The calculation of holiday pay due is therefore as follows:

					117
				365 x £54.14 x 6.5 days	=	      £112.80

11.	The claimant’s pay varied from week to week depending on the compulsory overtime which he undertook.  In order to arrive at a week’s pay we must average the pay received to arrive at the figure for a week’s pay in order to calculate the basic and compensatory awards.

12.	We cannot accept the claimant’s account of a high week’s pay without some corroborating documentation.  It is for the claimant to prove the gross and net weekly wages rather than to make a bare allegation.  We therefore calculate the week’s pay on the basis of the payslips provided to us making allowances for the disputed payslips.  We have averaged the pay received on the payslips produced at hearing and have discounted the January payslips as they were the payslips in dispute.  

13.	We therefore find that the average weekly gross pay was £507.  The average weekly net pay was £380 and these are the figures which we use for the following calculations.  The average net daily rate is £54.14 (£380 net x 52 weeks ÷ 365).

14.	The claimant is entitled to notice pay in relation to the one week’s statutory notice calculated as follows:

	1 week @ £380 	=	      £380.00

15.	Basic Award

	As the dismissal was in breach of the statutory dismissal procedures the claimant is entitled to the statutory minimum basic award of four weeks’ gross pay calculated as follows:

	4 weeks x £430 (statutory maximum) 	=	   £1,720.00

16.	Compensatory award

	(i)	Loss of statutory industrial rights	=	      £400.00

	(ii)	Loss between EDT and date of hearing:

		19.5 weeks x £380 net 	=	   £7,410.00
	
	(iii)	Future loss from date of hearing.  We calculate that the claimant is likely on a balance of probabilities to obtain alternative employment within 26 weeks of the date of hearing as we accept that he has made strenuous efforts and made numerous applications for a variety of jobs.  In arriving at that calculation we take account of the difficult job market on the one hand and the claimant’s qualifications and experience on the other hand.  The calculation for future loss therefore is as follows:

		26 weeks @ £380 per week	=	   £9,880.00

17.	Statutory uplift for failure to follow the statutory procedures.  We find that the maximum statutory uplift is warranted in this case given the circumstances of the failure to follow any procedure in the dismissal.  The uplift is calculated as follows:

	50% x £ 17,690 (compensatory award)	=	   £8,845.00

	Total compensatory award   	= 	 £26,535.00
	Add basic award                           		   £1,720.00
			__________

	Total UD compensation      		 £28,255.00

18.	Summary of compensation:

	Unfair dismissal	= 	 £28,255.00
	Notice pay	=	      £380.00
	Holiday pay	=	      £112.80
	Unpaid wages	=	      £740.44
			__________
	Total                 		 £29,488.24
			__________

	Recoupment statement

	A:   	Compensatory award	= 	 £26,535.00

	B:   	Prescribed element relating to loss of wages 
	      	for the period between EDT of 25 January 2013 
		and date of hearing 12 June 2013              	=     	   £7,410.00
				__________
			A –B                 	=	 £19,125.00
				__________

19.	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 2013, Belfast.		

Date decision recorded in register and issued to parties: