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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Millar v Aquaforce Ltd [2009] NIIT 308_09IT (09 September 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/308_09IT.html Cite as: [2009] NIIT 308_9IT, [2009] NIIT 308_09IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 308/09
CLAIMANT: Jim Millar
RESPONDENT: Aquaforce Limited
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 £21,550.30.
Constitution of the Tribunal:
Chairman: Mrs A Wilson
Members: Mr T Waite
Mr B Heaney
Appearances:
The claimant was represented by Ms Gavin, Solicitor, of Francis Hanna & Company, Solicitors.
The respondent was represented by Mr Best, Barrister-at-Law, instructed by McIvor, Farrell, Solicitors.
The respondent not having lodged a response to the claimant’s claim is not entitled to take part in these proceedings but has applied on the morning of the hearing for an adjournment for the purposes of lodging a late response.
The tribunal has considered this application based on the following findings of fact:-
1. The claimant lodged a claim with the tribunal on 29 January 2009.
2. A copy of the claim was forwarded to the respondent on 17 February 2009 under cover of a letter outlining in clear terms the procedures to be followed should the respondent wish to defend the claim and noting in precise terms the time-limit for lodging a response.
3. No response was lodged by the respondent, no application was made to extend the time-limit within which the response should be lodged and no attempts were made by the respondent to contact the claimant, his representative or the tribunal office.
4. A default judgement was not made in the case.
5. A Notice of Hearing was forwarded to the respondent on 9 April 2009 and no communication was received from the respondent in acknowledgement of that notice.
6. The respondent acknowledges that both the claim and the Notice of Hearing were received by them and that no steps were taken to deal with either until the morning of the hearing on the sole ground that they did not understand the procedures to be followed in order to defend the claim.
7. The respondent has not made the tribunal aware of any attempts on their part to enquire as to the procedures to be followed or of any effort to seek to understand what was required to be done to defend the claim.
8. The respondent is a successful company employing in or around six employees and has been in existence since 1994.
9. The respondent seeks an adjournment (without giving the claimant or the tribunal any advance notice of his intention to do so prior to the morning of the hearing) to enable them to enter a response on the grounds that no prejudice would be suffered by the claimant.
10. The claimant objects to the application drawing the attention of the tribunal to the lack of any response or any attempt on the part of the respondent to communicate with either the claimant or the tribunal following receipt of papers or at any time prior to the morning of the hearing. The claimant submits that he will be prejudiced by the delay that an adjournment will inevitably cause and further will be prejudiced in financial terms.
11. The tribunal rose to consider the submissions of the parties and the law in relation to the application for an adjournment and find as follows:-
· Paragraph 9 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 govern these proceedings.
· Paragraph 9 of Schedule 1 provides that a respondent who has not presented a response to a claim shall not be entitled to take any part in the proceedings except for limited purposes none of which apply here.
· Paragraph 9 is a mandatory provision allowing no element of discretion to the tribunal.
· Paragraph 10 of Schedule 1 allows a tribunal to postpone or adjourn any hearing.
· These proceedings are governed by regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. which provides:-
(2) Dealing with a case justly includes, so far as practicable-
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.
(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he -
(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or
(b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6.
(4) The parties shall assist the tribunal or the chairman to further the overriding objective.
12. The following cases are relevant to these proceedings and have been considered by the tribunal:-
13. Pendragon plc v Gary Copus [EAT 11.7.05], Moroak t/a Blake Envelopes v Cromie [2005] IRLR 535 and Kwik Save Stores Ltd v Swain [1997] ICR 49.
14. In reliance on the case of Moroak t/a Blake Envelopes v Cromie and regulation 3 as recited above the tribunal have interpreted the Industrial Tribunals (Constitution and Rules of Procedure Regulations (Northern Ireland) 2005 flexibly to consider this application for adjournment notwithstanding that the respondent has no entitlement within the rules to take any part in these proceedings and have considered the application on the grounds of what is just and equitable.
15. The tribunal have considered the case of Kwik Save Stores Ltd v Swain in deciding what ought to be taken into account in deciding what is ‘just and equitable’.
16. The following extract is of assistance :-
“it was incumbent on a respondent applying for an extension of time for serving a notice of appearance to put before the Industrial Tribunal all relevant documentation and other factual material in order to explain both the non compliance and…the basis on which it was sought to defend the case on its merits; that an industrial tribunal chairman in exercising the discretion to grant an extension of time to enter a notice of appearance had to take account of all relevant factors, including the explanation or lack of explanation for the delay and the merits of the defence, weighing and balancing them one against the other, and to reach a conclusion which was objectively justified on the grounds of reason and justice; that it was important when doing so to balance the possible prejudice to each party”.
17. The tribunal have considered it appropriate to be guided by the above recognizing that this is an application to postpone rather than an application to extend time. The tribunal consider that the same underlying principles apply. The only ground put forward by the respondent for failure to enter a response was one of failure to understand the procedures and have taken into account that no efforts were made by the respondent to make enquiries so as to clarify the procedures. The tribunal consider that the proper procedures were clearly outlined in the documentation accompanying the claim receipt of which the respondent acknowledges. The tribunal have also taken into consideration the fact that the Notice of Hearing was received by the respondent and no action was taken until the morning of the hearing.
18. The tribunal are informed that the respondent has a defence to this claim but have no information beyond that on which to rely in considering this application.
19. The tribunal has taken into consideration the fact that the respondent is a successful company in existence since 1994 with a number of employees and has acknowledged timely receipt of both the claim and the Notice of Hearing without making any effort to deal with them. The tribunal has considered the respondent’s contention that they did not understand the procedures to be followed. The tribunal cannot accept this in circumstances where those procedures were well set out in documentation accompanying the claim which was forwarded to them and the timely receipt of which they acknowledge. Even if the tribunal were to accept that the respondent did not understand the procedures to be followed the tribunal would have expected them to make reasonable enquiries to ascertain what steps needed to be taken and the tribunal has heard of no such steps being taken. The tribunal do not accept that no prejudice will be caused to the claimant who is entitled to have his claim dealt with expeditiously and fairly and with a view to saving expense. The tribunal is satisfied that the claimant will be prejudiced by the consequent delay in dealing with the matter should an adjournment be granted particularly so bearing in mind the additional inevitable delays and expense resulting from the fact that no response has yet been lodged. The tribunal have balanced this consideration against the consequences in financial terms of the effect of this decision on the respondent who is a successful company and in all the circumstances of the case has decided not to postpone. This is the unanimous decision of this tribunal.
20. Having delivered this decision to the parties and enquired of the parties as to whether they required time to contemplate the implications of this decision, the tribunal proceeded to hear the substantive case without objection or any form of application from or on behalf of the respondent.
The substantive hearing
Sources of evidence:
21. The tribunal considered the claim, papers handed in by the claimant and referred to in evidence together with the oral testimony of the claimant.
22. The claimant’s claim is for unfair dismissal contrary to Articles 126 and 130A of the Employment Rights (Northern Ireland) Order 1996 [the Order], notice pay under the Industrial Tribunals (Extension of Jurisdiction) Northern Ireland Order 1994 and holiday pay under the Working Time Regulations (Northern Ireland) 1998. The claimant also claims under Article 125 of the Order that he did not receive written reasons for his dismissal contrary to Article 124 of the Order.
23. The issues for the tribunal were:-
(a) Was the claimant dismissed?
(b) Were the statutory dismissal procedures followed?
(c) What was the reason for the dismissal?;
(d) Did that reason fall within one of the fair reasons outlined in the legislation?;
(e) Was that dismissal fair in all the circumstances?
(f) If not what compensation if any should be awarded,
(g) What notice did the claimant receive and did it comply with his statutory entitlement?
(h) Is the claimant entitled to payment in respect of untaken holidays?
Findings of fact:
24. The claimant was employed by the respondent as a general labourer from in or around May 2006 until his dismissal on 13 November 2008.
25. The claimant was dismissed following an incident on 13 November 2008 when he appeared to Mr Stewart of the respondent company to be taking an early tea break.
26. The claimant was dismissed without investigation, warning or notice and without any attempt to follow the dismissal procedures contrary to the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland ) 2004.
27. The claimant through his representative, David Colvin, wrote to the respondent on 5 December 2008 asking for written reasons for dismissal. No reply was received.
28. The claimant was aged 24 at the time of dismissal and was earning £227.67 gross per week.
29. The claimant has been actively seeking work but remains unemployed to date. He is undertaking a Steps to Work programme through which he expects to achieve construction skills registration following which he is hopeful of obtaining work.
30. Whilst unemployed and looking for work the claimant is claiming Jobseekers Allowance in the fortnightly sum of £90.00.
THE LAW AND CONCLUSIONS BASED ON THE APPLICATION OF THE LAW TO THE FACTS
31. The right not to be unfairly dismissed is enshrined in Article 126 of 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).
32 The respondent is not entitled to take part in these proceedings for the reasons given earlier and so has not satisfied the tribunal of the reason for the dismissal. Consequently the tribunal find that the dismissal was unfair.
33. 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 130A(1) of the Order and Article 17(3) of the Order applies so as to allow the tribunal the discretion to increase any award payable subject to an upper limit of 50% uplift.
34. 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.
35. The claimant was employed for two years and six months and was entitled to two weeks notice in circumstances where he received no notice.
36. The claimant claims 2 days holiday pay due in the leave year during which he was dismissed.
Compensation
37. 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
38. Article 153 sets out the formula by which such basic award is to be calculated. Based on that provision the tribunal calculate the basic award as follows:-
The effective date of termination is 13 November 2008 at which time the claimant was aged 24, was earning £190.39 net [£227.67 gross] per week and had two full years employment:-
£190.39 x (1 x 2) = £380.78(total basic award).
The compensatory award
39. Article 157 sets out the formula to be followed in calculating the compensatory award and applying that formula the tribunal calculate the compensatory award as follows:-
Loss of earnings (gross) 13 November 2008 to 6 July 2009 (date of hearing) =
33 full weeks x £227.67 = £7,513.11
Loss of statutory rights = £250.00
Future Loss:
The claimant is hopeful of obtaining employment following attainment of construction skills registration. The tribunal in considering this against the backdrop of a depressed construction industry have decided to award the sum of £5,464.08 in respect of future loss being six months gross pay.
Total compensatory award = £13,227.19
Notice Pay
40. The claimant is entitled to the further sum of £227.67x 2 = 455.34 in respect of notice pay.
Award to include notice pay = £14,063.31
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 the statutory procedures.
Increase of award by 50% [£7,031.65] (failure to follow statutory procedures) = £21,094.96.
The right to receive written reasons for dismissal is outlined at Article 124 of the Employment Rights Order. If the claimant requests such written reasons and the employer does not provide the written reasons, the tribunal must award two weeks’ pay under Article 125. In this case the claimant requested written reasons for dismissal by letter dated 5 December 2008 and did not receive a reply.
Award under this heading = £455.34
Total Award = £21,550.30
Recoupment of benefit received by the claimant
41. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 (the regulations) apply in this case. Rule 4(3) of these regulations require that the tribunal 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.
For the purposes of these proceedings the monetary award is £21,550.30 [basic award +compensatory award + notice pay + uplift + award in respect of failure to provide written reasons].
The prescribed element is that amount of the monetary award which represents in this case compensation for loss of earnings up to the date of the hearing. The tribunal find that the amount of the prescribed element is £7,513.11.
The amount by which the monetary award exceeds the prescribed element in this case is £21,550.30 – £7,513.11= £14037.19.
The attached recoupment notice forms part of this decision.
Regulations 7 and 8 of the regulations apply so as to stay the payment by the respondent of the prescribed element in order to enable the Department of Health, Social Services and Public Safety to initiate recoupment of jobseekers allowance paid to the claimant by serving a recoupment notice under regulation 8 on the respondent.
42. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 6 July 2009, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 308/09
RESPONDENT: Aquaforce Limited
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
21,550.30 |
|
(b) Prescribed element |
7,513.11 |
|
(c) Period to which (b) relates: |
13 November 2008 – 6 July 2009 |
|
(d) Excess of (a) over (b) |
14,037.19 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.
