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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Fulton v Signflair (NI) Ltd [2010] NIIT 7048_09IT (28 April 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/7048_09IT.html Cite as: [2010] NIIT 7048_09IT, [2010] NIIT 7048_9IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7048/09
CLAIMANT: Mark Fulton
RESPONDENT: Signflair (NI) Ltd
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and that the claimant is entitled to £5,874.00 in respect of unfair dismissal.
Constitution of Tribunal:
Chairman: Ms F Oliver
Members: Mr J Devlin
Mrs T Madden
Appearances:
The claimant appeared in person
The respondent did not appear and was not represented.
The Claim and the Response
1. The claimant claims unfair dismissal on the basis of unfair selection for redundancy and failure by the respondent to comply with redundancy dismissal procedures. The respondent filed a response indicating that it had dismissed the claimant due to a downturn in sales within the company.
2.
The respondent was
informed of the date of hearing but did not attend the hearing.
3. The tribunal decided that it would be appropriate, having regard to Rule 27 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to proceed with the hearing in the respondent’s absence.
Sources of Evidence
4. The tribunal received payslips from the claimant and heard oral evidence from the claimant. The tribunal also considered the evidence contained in the Claim and Response.
The Issues
5. The issue is whether the claimant has been unfairly dismissed on the grounds of redundancy.
Findings of Facts
· The claimant commenced employment with the respondent on 21 October 2007 as an electrician. On 11 May 2009, he was told he was being dismissed on the grounds of redundancy. The claimant was given two week’s notice and his employment ended on 24 May 2009.
· The respondent company was involved in fitting signage and lighting in various retail parks and hotels throughout Ireland.
· The claimant was part of a two man fitting team of himself and Philip. The other team was Gavin and Andrew. Gavin had been employed longer than the claimant but Andrew had not.
· The claimant‘s fitting team was the only team able to fit neon lights.
· On 11 May 2009, the claimant was called into the office and told that he was being let go. He was informed that the reason was the downturn in business. He was not given an adequate reason for why his team had been selected for redundancy.
· The Statutory Dismissal Procedures were not followed.
· The company continued to trade throughout 2009 but in November or December 2009, it got into financial difficulties.
· The claimant applied for other jobs but was unable to find other employment until 11 October 2009. This is at a higher rate of pay than with the respondent.
The Law
6. By virtue of Article 126 of the 1996 Order an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined. However under Article 130A(1) an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
7. The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where an employer is contemplating a dismissal. If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and award a minimum of four weeks’ pay if the basic award transpires to be lower than that figure. The tribunal must also increase any award which it makes to the employee by 10%, and if it considers it just and equitable in the circumstances, by a larger percentage up to a maximum of 50%. The percentage increase must be made unless there are exceptional circumstances which would make the increase of 10% minimum unjust or inequitable (Article 17).
Application of Findings of Fact to the Law
8. We find that there was a dismissal based on the claimant's evidence and the correspondence. The respondent failed to follow the Statutory Dismissal Procedures and the dismissal is therefore automatically unfair.
9. The claimant is entitled to a Basic Award of 4 weeks gross pay subject to the statutory weekly maximum of £350.00.
10. The claimant is entitled to a compensatory award. The compensatory award should be increased by 10% due to the failure of the respondent to carry out the Statutory Dismissal Procedures.
11. The tribunal makes an award for loss of wages from the date of dismissal to the date of finding new employment which is a period of 20 weeks.
12. The tribunal then considered whether the claimant may have been dismissed even if the procedures had been correctly followed. On the basis of the evidence provided by both parties, we believe that there was a 40% chance that the claimant would have been dismissed in any event. We noted that despite the fact that the respondent had reduced their workforce, the company still found itself in financial difficulties in November/December 2009. This is an indication that a genuine redundancy situation applied at the time of dismissal and we consider that there was a 40% chance that the claimant would have been chosen for redundancy if correct procedures had been followed.
13. The tribunal finds that the claimant is entitled to the following:
Basic Award
4 x £350.00 (statutory maximum) £1,400.00
Compensatory Award
£320.00 x 20 weeks £6,400.00
10 % increase £ 640.00
Less 40% on the basis that claimant may have been dismissed
if correct procedures followed £2,816.00 £4,224.00
Loss of Statutory Rights £ 250.00
Total award £5,874.00
14. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
15. Your attention is drawn to the notice below which forms part of the decision of the tribunal.
Chairman:
Date and place of hearing: 11 March 2010, Belfast
Date decision recorded in register and issued to parties:
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.
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£ |
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(a) Monetary award |
£5,874.00 |
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(b) Prescribed element |
£4,224.00 |
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(c) Period to which (b) relates: |
11 May 2009 to 11 October 2009 |
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(d) Excess of (a) over (b) |
£1,650.00 |
The applicant 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 applicant in respect of that period; (b) is not payable until the Department of Health and Social Services 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 applicant 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 applicant.
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 applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services 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 applicant, 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 applicant and regardless of any dispute between the applicant and the Department.
