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Kirk v JSM Couriers Ltd (Unfair Dismissal) [2002] NIIT 2383_01 (1 March 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 2383/01

APPLICANT: John Kirk

RESPONDENT: J S M Couriers Limited

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed by the respondent and is entitled to compensation amounting to £8,305.00.

Appearances:

The applicant was represented by Brian McKee instructed by Donard King & Co, Solicitors.

The respondent did not appear before the tribunal and did not enter any Notice of Appearance to the applicant's application.

1. The Decision of the Tribunal given in summary form

1.1. The applicant was employed from 3 January 1999 as a driver for the respondent company. His task was to drive clothing to Dublin on a number of days each week. On 30 May 2001 the applicant parked his van outside the French Connection Store in Dublin and was in the process of making arrangements to unload the stock when the van was raided and goods were stolen.

1.2. When the applicant returned to the respondent's base in Ballynahinch and explained the situation to the respondent he was told that he had been negligent in losing the goods and that he would lose his job with immediate affect.

1.3. The applicant wrote to the respondent asking for the reason for his dismissal and even sent a letter by recorded delivery for this purpose. None of these letters were replied to. It is quite apparent that the respondent made no effort to investigate the causes of the theft or the problems that beset drivers when they were trying to unload goods in Dublin with no helper to guard the van whilst the goods were being unloaded.

1.4. The applicant was summarily dismissed without any investigation and without any opportunity to put forward his side of the case to the respondent.

1.5. The applicant was paid £240.00 per week gross, the respondent made no deductions and gave him no payslips, the applicant therefore considered this to be a gross payment, which left him £190.00 net. He was aged 58 and instead of getting another driving job he was able to get a job as a caretaker in a school at £192.00 gross per week (net £157.00). This job commenced on 1 July 2001 and this then is a difference of £33.00 per week in his net wages from that date.

1.6. The Tribunal hold that that difference in wages should be multiplied by 3 years from the date of the Tribunal hearing to represent compensation for the unfair dismissal. It is unlikely that the applicant will get a better paid job at his age and he was correct to take the caretaker job to minimise his loss.

1.7. The applicant did not get Job Seekers Allowance as his contributions had not been kept up to date.

1.8. The Tribunal are unanimous in their decision that the dismissal was unfair and compensation is awarded as set out below:-

£ £

Basic Award 3 weeks wages at £240.00 per week - 720.00

Compensatory Award from 7 June 2001 –

1 July 2001 £190.00 x 3 weeks 570.00

from 1 July 2001 – 14 December 2001

24 weeks x £33.00 per week - 792.00

Future loss 3 years @ £33.00 per week - 5,148.00 6,510.00

Loss of Statutory Rights 200.00

Holiday pay outstanding

5 months .. 5/12 of 5 weeks holiday

@ £190.00 per week 395.00

Failure to provide written reasons

Two weeks at £240.00 per week

(under Article 125 of the Employment

Rights (NI) Order 1996) 480.00

£8,305.00

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

____________________________________

Date and place of hearing: 14 December 2001, Belfast

Date decision recorded in register and issued to parties: 1 March 2002