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THE
INDUSTRIAL TRIBUNALS
CASE REF: 803/08 IT
CLAIMANT: Derek Alexander Heaney
RESPONDENT: Cunningham Stone Ltd (in
administration)
DECISION
The
unanimous decision of the Tribunal is that the claimant was unfairly
dismissed by the respondents and that the respondents pay the
claimant the sum of £39,867 compensation.
Constitution
of Tribunal:
Chairman: Miss
P Sheils
Members: Mrs
Teresa Madden
Mr
Norman Wilkinson
Appearances:
The
claimant appeared and represented himself.
There
was no appearance from the respondent. However a letter was received
from John Hanson of KPMG, administrators dated 8 December 2008 giving
consent to the claimant to proceed with his claim.
The
Claim and the Response
1. The claimant lodged a claim to the
Industrial Tribunal on 2 June 2008. The claimant claimed that he had
been unfairly selected for redundancy and additionally claimed £2652
outstanding notice pay.
The respondent lodged a response on 10
July 2008. This response indicated that no grievance procedure had
been activated. That the “applicant” was selected for
redundancy, that he was selected under the scoring system used and
that the claimant was aware of the company’s difficulties and
need to make cut backs given the current market conditions.
Additionally the respondent has indicated that the employees agreed
to accept two weeks’ notice pay and this was contained in the
claimant’s contract of employment.
Sources
of Evidence
The
Tribunal heard from the claimant. The Tribunal was also furnished
with documentation including correspondence from the respondents,
pay slips and the claimant’s Contract of Employment.
Findings
of fact
The
Tribunal found the following facts proved on the balance of
probabilities;
The
claimant worked for the respondents from 28 July 1997 until his
employment was terminated on 7 March 2008. The claimant was
employed as a saw operator, automatic edge polisher. The claimant
worked 39 hours per week and his take home pay was £259.59.
The claimant was 48 when he commenced his employment and was 59 when
his employment was terminated.
The
respondent employed a total of 60 workers and in the yard where the
claimant worked approximately 20 workers. Some of the work was
managed in two separate shifts. However the claimant was not a
shift worker and worked a fixed period of time, namely 8.00am to
4.30pm. The claimant received £1 per hour less than the shift
workers.
The
claimant and the other employees were made aware during the
recession that the company was cutting down on shift workers. The
claimant stated that employees were advised that they would have to
attend individual meetings held by the company to hear about
potential redundancies. The claimant stated that he understood
these meetings were meetings at which some workers were being told
they were being made redundant. However the claimant stated that he
was not anxious about attending his meeting in that he did not
believe that he would be made redundant.
In
or about late February 2008 the claimant attended a meeting between
himself and the company. During the meeting, which lasted no longer
than two minutes, the claimant was advised that he was being paid
off. The claimant also stated that another shift worker who had been
with the respondent company “barely two years” was put
into his job as replacement.
The
claimant received a redundancy payment of £4,950. He
additionally received a payment of £663, two weeks’
notice pay.
On
2 May 2008 the claimant wrote to the respondent and asked the
following questions; the written reasons for his dismissal, if
selection criteria were followed and what that criteria were and an
explanation for his notice pay.
By
letter dated 22 May the respondents wrote to the claimant and
advised that the reason for the redundancies was to “reduce
the number of employees to allow us to move from two shifts to one.
In relation to the criteria, a scoring system was used to establish
who we should make redundant.
“In relation to your notice
under your contract which you agreed to be employed you agreed to
accept two weeks notice. You have been paid two weeks notice and
therefore as far as we are concerned you have been paid in full.”
The
claimant claimed Jobseekers’ Allowance for a period of six
weeks. The claimant was not entitled to any further monies on the
basis of his age.
The Law
The
Tribunal had reference to the Employment Rights (Northern Ireland)
Order 1996 and in particular Article 126 which states –
An employee has the right not to be
unfairly dismissed by its employer.
Article 130
In
determining for the purposes of this part whether the dismissal of
an employee is fair or unfair it is for the employer to show –
The reason or if more than one the
principle reason for the dismissal and
That it is either a reason falling
with paragraph 2 or some other substantial reason of a kind such as
to justify the dismissal of an employee holding the position which
the employee held.
A
reason falls within this paragraph if it – , at (c) the
employee is made redundant
Article
130 goes on to state that at 13(4) where the employer has fulfilled
the requirement to paragraph 1, the determination of the question
whether the dismissal is fair or unfair (having regard to the reasons
shown by the employer –
Depends
on whether in the circumstances (including the size and
administrative resources of the employer’s undertaking) the
employer acted reasonably or unreasonably in treating it as a
sufficient reason for dismissing the employee and
Shall be determined in accordance
with equity and the substantial merits of the case.
It
is for the employer to show whether in the circumstances dismissal of
an employee for redundancy is fair or reasonable.
The
Tribunal’s Conclusions
11. The
Tribunal was unable to reach a conclusion that the dismissal of the
claimant in these circumstances was fair or reasonable based on the
evidence from the claimant and the want of evidence from the
respondents. The Tribunal noted that the respondents’ response
to the claim was merely that the claimant had been made redundant by
virtue of his having fallen foul of a scoring system that had been
applied to him.
12. There
was no further evidence from the respondents to indicate how the
selection criteria had been drafted or decided or whether the
selection criteria had been properly applied to the claimant. Further
the Tribunal also noted that there was no evidence from the
respondents to refute the claimant’s version of the procedures
that had been followed in his redundancy.
13. On
the basis of the evidence before it the Tribunal concluded that the
claimant had been unfairly dismissed by reason of his redundancy.
14. The
Tribunal also noted that the claimant had signed a contract of
employment which indicated that his notice period would be limited to
two weeks. However, it is accepted law that contracts of employment
may not be glued to statutory minimum provisions.
15. Accordingly
with reference to Article 118 of the Employment Rights (Northern
Ireland) Order 1976 the Tribunal concluded that the claimant was
entitled to an additional 8 week period of notice.
Compensation
Article
152 of the Employment Rights (Northern Ireland) Order 1996 provides
that where a Tribunal makes an award of compensation that award
shall consist of a basic award and a compensatory award.
The
Basic Award
17. This
is calculated by reference to the statutory formula. In this case the
basic award = 1 1/2 weeks x 10 x 260 = £3,900
The
Compensatory Award
18. This
is to be assessed by the Tribunal in line with the provisions of
Article 157 of the Order and is to be amount
“….
As the Tribunal considers just and equitable in all the circumstances
having regard to the loss sustained by the claimant in consequence of
the dismissal insofar as that loss is attributable to action taken by
the employer.”
The “loss sustained by the
claimant” is set out in paragraph (2) of this Article.
The
Tribunal concluded in this case that the claimant was entitled to
such figure that reflected his loss of pay from the date of his
dismissal until the date of the hearing, less any relevant
deductions, namely
£260.00
x 54 = £14,040
Plus
loss of statutory rights £500
Less redundancy pay £4,950
Less notice pay £663.00
=£8,927
19. The
Tribunal also noted that the claimant was 59 at the time of his
redundancy and that it appeared unlikely that the claimant would be
able to secure future work. Accordingly the Tribunal concluded that
on this basis the claimant would be entitled to an award for future
loss representing the period from the date of the claimant’s
dismissal until the date of his retirement, 6 years.
20. However
the Tribunal took account of the fact that the respondent company was
in administration and that therefore the claimant was more likely
than not to have been made redundant before his retirement date. The
Tribunal noted the claimant’s evidence that the respondent
company appeared to him to be “working away” and,
although the Tribunal accepted that this appearance could include the
respondents’ position that the company was in administration,
the Tribunal concluded that in the circumstances of this case it was
possible that the claimant could have remained in work during this
period and been made redundant at a date in the future. The Tribunal
set this period of future loss, curtailed by the inevitability of
redundancy, at two years.
£260.00
x 104 = £27,040
Total
Compensation = £39,867
Recoupment
21. This
is a relevant decision for the purposes of recoupment
Recoupment of benefit received by the
claimant.
The Employment Protection (Recruitment
of Jobseekers Allowance and Income Support) Regulations (Northern
Ireland) 1996 apply in this case. Rule 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.
22. Rule 4 (Paragraph 2 of these
Regulations also state where the Industrial tribunal at arriving at a
monetary award makes a reduction on account of the employee's
contributory fault or on account of any limit imposed by or under the
1992 Act or the 1996 Act, a proportionate reduction shall be made in
arriving at the amount of the prescribed element.
23. The prescribed element is that
amount of the monetary award which represents a raise of pay, or
compensation for loss of earnings, up to the date of the Tribunal
hearing. In this case that period runs from the date of the
dismissal, which in this case runs from the 7 March 2008 until the
date of the hearing, 23 March 2009, a period of 54 complete weeks.,
less deductions = £8,427.
Accordingly the amount by which the
monetary award exceeds the prescribed element in this case is £39,867
less £8,927 = £30,940
24. 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: 23 March 2009, at Belfast
Date
decision recorded in register and issued to parties:
ANNEX TO THE DECISION OF THE
TRIBUNAL
STATEMENT RELATING TO THE
RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME SUPPORT
The following particulars are given
pursuant to the Employment Protection (Recoupment of Jobseekers’
Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£
|
|
(a) Monetary
award
|
39,867
|
|
(b) Prescribed
element
|
8,927
|
|
(c) Period to
which (b) relates:
|
7
March 2008 –
23 March 2009,
|
|
(d) Excess of
(a) over (b)
|
£30,940
|
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 Jobseekers’
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 Jobseekers’
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.
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.
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.
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