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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mateer v JM Securities Ltd [2009] NIIT 139_06IT (27 January 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/00139.html Cite as: [2009] NIIT 139_6IT, [2009] NIIT 139_06IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 139/06
418/06
CLAIMANT: Robert David Mateer
RESPONDENT: JM Securities Ltd (in liquidation)
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to £1877.60 being £870.00 in respect of the basic award, £176.00 in respect of unpaid wages and £831.60 in respect unauthorised deduction of wages. The tribunal finds that the claimant is not entitled to compensation in respect of personal items.
Constitution of the Tribunal:
Chairman: Ms F Oliver
Members: Ms M J McReynolds
Mr R Black
Appearances
The claimant appeared and was represented by Mr Alan Stewart B.L. instructed by Messrs Donnelly Kinder solicitors.
The respondent did not appear and was not represented.
1. Sources of Evidence
The tribunal heard evidence from the claimant. The tribunal was also referred to a bundle of documents provided by the claimant.
2. The Claim and the Defence
The claimant claimed that he had been unfairly dismissed by the respondent. The respondent denied that the claimant had been unfairly dismissed. The claimant claimed that he was due unpaid wages and that money had been unlawfully deducted from his final salary. The respondent stated that any money deducted had been deducted in accordance with company procedures. The claimant claimed compensation in respect of personal items not returned.
3. Issues
The issues for the tribunal were:
Was the claimant unfairly dismissed from his employment?
The claimant indicated that he was not seeking a compensatory award and was seeking only the basic award in respect of unfair dismissal.
Was the claimant entitled to a payment in respect of unpaid wages?
Was the claimant entitled to a payment in respect of unlawful deductions of wages?
Was the claimant entitled to compensation in respect of personal items not returned?
4. Analysis of the evidence
There was a conflict in the evidence. This was a case where it would have been beneficial to hear oral evidence from both parties. In view of the liquidation of the respondent company this was not possible. However, the tribunal did have the benefit of substantial documentation provided by the claimant from which it was possible to ascertain both sides of the story.
5. Findings of Fact
The claimant commenced employment with the respondent in March 2002.
He had no difficulties with his employment until a new employee, Ms D’M. commenced in March 2004.
The claimant had a difficult relationship with this employee leading to various complaints by both employees.
In September 2005 the respondent employed a Mr John Lyttle as Operations Director.
Relationships deteriorated within the company.
On 5 October 2005, the claimant was suspended on full pay. The letter informing the claimant that he was being suspended was signed by Ms. D’M the employee about whom the claimant had previously lodged a grievance.
The investigation into the alleged gross misconduct was carried out by Mr Lyttle and Ms D’M.
The disciplinary hearing was chaired by Mr Lyttle on 24 October 2005 and the claimant was summarily dismissed.
The claimant appealed and the appeal was heard by Mr Lyttle on 23 November 2005. Perhaps not surprisingly the appeal was dismissed.
The claimant received his final pay on 16 November with an explanatory letter indicating that £756.00 was being deducted.
The claimant indicated that he was entitled to two further day’s pay at £200.00 gross or £160.00 nett and that the deductions were incorrect.
The tribunal accepts that the claimant returned the mobile phone and the uniform referred to in the letter of 16 November 2005 when he returned the car.
The tribunal finds that each party had a part to play over the difficulty in returning the car and finds that it was not reasonable for the employer to deduct the cost of recovering the car as indicated in the letter of 16 November 2005.
The claimant raised a grievance regarding the points at 11 12 and 13 but the procedure was not completed. In the absence of evidence to the contrary, the tribunal accepts that the failure to complete the grievance procedure was mainly attributable to failure by the employer to comply with a requirement.
The tribunal was not convinced regarding the items of personal belongings which the claimant alleges were left in the offices of the respondent.
6. The Law
Article 126 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to be unfairly dismissed.
Art 45 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to suffer unauthorised deductions from wages.
7. Application of the Law and Findings of fact to the Issues.
1. Unfair dismissal
The tribunal concludes that the claimant was unfairly dismissed from his employment. The tribunal reaches this conclusion on the basis that the procedures followed by the respondent were unfair and biased. In the circumstances of this claim, it was not appropriate that Mr Lytlle was involved in the investigation, chaired the disciplinary hearing and heard the appeal. There was at least one other person who could have heard the appeal and that was the director, Mr Moffatt. We did not find the reasons for his unavailability to be convincing. We consider that if someone else had been involved it is more than likely that the claimant would not have been dismissed. On the balance of probability and in the absence of further evidence from the respondent, the tribunal formed the impression that a decision had been made to get rid of the claimant and Mr Lyttle was employed to carry out this task.
Basic Award
This is calculated in accordance with Art 153 as follows:
Complete years of service 3
Age at dismissal 33
Week’s pay (gross)
(statutory maximum) £290.00
Basic award 1 weeks
pay x 3 £870.00
2. Unauthorised deductions
The tribunal finds that the respondent made an unauthorised deduction from the claimant’s wages and the claimant is entitled to £756.00 in respect of this. The tribunal increases this amount by 10% due to the employer’s failure to complete the grievance procedure making £831.60.
The tribunal finds that the claimant is entitled to two days wages as the claimant was not paid for two days he had worked. The claimant is therefore entitled to £160.00 in respect of his nett pay for two days. The tribunal increases this amount by 10% due to the employer’s failure to complete the grievance procedure making £176.00.
3. Return of personal belongings
The tribunal was not convinced by the claimant’s evidence in respect of failure to return personal items and we were not convinced of the value placed on them. The tribunal declines to make an award in this regard.
8. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 9 December 2008, Belfast
Date decision recorded on register and issued to parties:
