Industrial Tribunals Northern Ireland Decisions

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 997/08

 

 

CLAIMANT:                      Mariusz Karpinski

 

 

RESPONDENT:                Manor Interiors Limited (In Liquidation)

 

 

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed, the respondent in breach of the claimant’s contract of employment failed to pay him outstanding wages, notice and holiday pay on termination of the claimant’s employment and failed to provide a written statement of reasons for dismissal and was in breach of its duty to give to the claimant a written statement of particulars of employment when these proceedings were begun.  The respondent shall pay the claimant £3,652.33 compensation.

 

 

Constitution of Tribunal:

Chairman:              Ms M Bell

Members:               Mr S Adair

                               Ms V Walker

 

Appearances:

The claimant was represented by Ms F Smyth of Donnelly & Kinder, Solicitors.

The respondent did not appear and was not represented.

Mrs P Baird appeared on behalf of the Department for Employment and Learning.

 

 

 

 1.      The claimant in his claim complained of racial discrimination, unfair dismissal, breach of contract, unauthorised deduction of wages, and failure to provide a written statement of reasons for dismissal.

 2.      No response has been entered by the respondent.

 

 3.      This case was previously listed for hearing on 12 February 2009 but was adjourned on that date to allow the claimant to seek leave of the High Court of Justice in Northern Ireland to continue the proceedings in accordance with Article 110(2) of the Insolvency (Northern Ireland) Order 1989.  The claimant withdrew the part of his claim which relates to race discrimination at the hearing on 12 February 2009 and it was dismissed.  An Order was also made following the hearing on 12 February 2009 for the joinder of the Department for Employment and Learning, this Order was however set aside, the Department having been given notice of the proceedings pursuant to Rule 60(8) of the Industrial Tribunals Rules of Procedure on 6 January 2010 and the title of the proceedings are now accordingly amended from “Mariusz Karpinski  v  1. Manor Interiors Limited (In Liquidation), 2. Department for Employment and Learning” to “Mariusz Karpinski  v  Manor Interiors Limited (In Liquidation)”.

 

 

EVIDENCE

 

 4.      The tribunal considered the claim, documentation including a Schedule of Loss handed in on behalf of the claimant documentation from the Department for Employment and Learning and heard oral evidence from the claimant.

 

 

ISSUES FOR TRIBUNAL

 

 5.      The issues for the tribunal were as follows:-

 

(i)              Was the claimant unfairly dismissed?

 

(ii)             Has the respondent in breach of contract failed to pay the claimant wages, notice pay and holiday pay?

 

(iii)            Did the respondent provide a written statement of reasons for the claimant’s dismissal?

 

(iv)           Is the respondent in breach of its duty to provide a statement of particulars of employment?

 

FINDINGS OF FACT

 

 6.      The High Court of Justice in Northern Ireland gave leave to the claimant to proceed with his claim on 4 June 2009.

 

 7.      The claimant was employed by the respondent as a delivery man from 1 December 2005 until 10 April 2008.  No written statement of particulars of employment was given by the respondent to the claimant.

 

 

 8.      The claimant began work early on the morning of 10 April 2008, when he returned from deliveries at 8.00 pm that evening his manager Mr Harold Weir asked him to go out on another delivery, the claimant replied that he was tired and wished to go home but Mr Weir asked him for his keys to the respondent’s warehouse, informed him that he was fired and told him not to come back to work.  The claimant asked why he was fired but no explanation was given. 

 

 9.      The next day the claimant went back to the respondent’s office to speak with his manager and asked him why he was dismissed, Mr Weir did not however speak with the claimant but his secretary told the claimant that his P60 and wages would be sent out. 

 

10.     The respondent sent the claimant a letter on 19 April 2008 stating that he was due no salary for March 2008 as a result of damage caused by him to furniture delivered to the respondent’s client and excess holidays taken by him, and that he actually owed money to the respondent.

 

11.           The claimant wrote to the respondent on 29 April 2008 appealing the decision to dismiss him on 10 April 2008 without explanation and without adhering to statutory procedures and raised a grievance in respect of outstanding pay.

 

12.           The claimant to his knowledge never damaged any item delivered by him on behalf of the respondent.  The claimant did not receive holiday pay for the excess day’s holidays that the respondent alleged he had taken. 

 

13.           The claimant subsequently received with a compliments slip from the respondent dated 20 May 2008, his P60, and a cheque for balance pay of £164.30, the respondent having deducted £316.97 as alleged due to it by the claimant and set out in its letter of 19 April 2008.

 

14.           A letter was sent on behalf of the claimant by his union to the respondent on 13 May 2008 seeking a grievance hearing in respect of the claimant’s dismissal without explanation contrary to statutory procedures and in respect of his outstanding wages and holiday pay.  A further letter was sent on the claimant’s behalf on 27 May 2008 in the absence of any response from the respondent.  No response was received from the respondent.  

 

15.           Solicitors wrote to the respondent on 6 June 2008 on behalf of the claimant seeking the respondent’s confirmation whether it was agreeable to dealing with the claimant’s grievances in respect of his dismissal by the modified grievance procedure.  No response was received from the respondent.

 

16.           The respondent is in liquidation as the result of a Winding Up Order made by the High Court on 19 September 2008.  Moore Stephens Chartered Accountants were appointed as liquidator on 30 September 2008.

 

17.           The claimant’s holiday year ran from January to December each year.  In 2008 the claimant had not taken any holidays prior to his dismissal.

 

18.           Prior to termination of his employment the claimant received gross weekly pay of £264.74 being £194.15 net.

 

 

 

 

 

THE LAW

 

Statutory Minimum Procedures and Unfair Dismissal

 

19.           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 applicable, by an employer contemplating a dismissal.  The standard procedure consists of three steps in summary requiring an employer to provide an employee at Step 1 with a written statement of grounds for action and an invitation to a meeting, at Step 2 a meeting and at Step 3 an appeal.

 

20.           By virtue of Article 126 of the Employment Rights (Northern Ireland) Order 1996 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 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,

 

(b)      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.  Where an Industrial Tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the Orders it may make by way of remedy are set out at Article 146 of the 1996 Order and include reinstatement, or re-engagement, and otherwise compensation.  How compensation is to be calculated is set out at Articles 152 to 161.

 

21.     Article 154(1A) of the 1996 Order provides that where an employee is regarded as unfairly dismissed by virtue of Article 130A(1) the Industrial Tribunal shall increase the basic award where the amount is less than four week’s pay to the amount of four week’s pay save as provided at 1(B).

 

Notice

 

22.           Article 118(1) of the 1996 Order sets out minimum notice to be given by an employer to an employee to terminate the contract of employment of not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

 

Breach of Contract

 

23.     A breach of contract claim arising or outstanding on termination of an employee’s employment may be brought before an Industrial Tribunal under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

 

24.     The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulations 13 and 13A for a worker to have minimum leave in leave year of 4.8 weeks from 1 October 2007 and 5.6 weeks from 1 April 2008.  Under Regulation 14(2) where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave. 

 

25.     Under Article 45 of The Employment Rights (Northern Ireland) Order 1996 an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of his statutory provision or a relevant provision of a worker’s contract, or the worker has previously signified in writing his consent or agreement to the making of the deduction.

 

Reasons for Dismissal

 

26.     Under Article 124 of the 1996 Order an employee with more than one year’s continuous employment at the effective date of termination is entitled to be provided within 14 days from his request, by his employer, a written statement giving particulars of the reasons for the employee’s dismissal in circumstances including where the employee’s contract of employment is terminated by the employer without notice.

 

27.     Under Article 125(2)(b) of the 1996 Order where an Industrial Tribunal finds a complaint by an employee that an employer has unreasonably failed to provide a written statement under Article 124, it shall make an award that the employer pays to the employee a sum equal to the amount of two week’s pay. 

 

Written Statement of Particulars of Employment

 

28.     Article 33(1) of the 1996 Order requires that where an employee begins employment with an employer the employer shall give to the employee a written statement of particulars of employment.

 

29.     Under Article 27(3) of the 2003 Order, where the Industrial Tribunal makes an award to the employee in respect of the claim to which the proceedings relate (being any of those jurisdictions listed in Schedule 4) and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) of the 1996 Order the tribunal shall increase the award by the minimum amount, being equal to two week’s pay, and if it considers just and equitable in all the circumstances, increase the award by the higher amount instead, being equal to four week’s pay.  The jurisdictions listed in Schedule 4 include unfair dismissal and breach of employment contract on termination.

 

APPLICATION OF LAW TO THE FACTS FOUND

 

30.     The tribunal is satisfied on the basis of the claimant’s undisputed evidence that the respondent completely ignored the statutory minimum dispute resolution procedures applicable in this case and which it was obliged to follow, despite attempts directly by the claimant and on his behalf to seek an explanation for his dismissal, to have the respondent deal with his grievances and to appeal the decision to dismiss him.

 

31.     The tribunal finds that the claimant’s dismissal was automatically unfair under Article 130A(1) of the 1996 Order the non-completion of the dismissal and disciplinary procedures being wholly attributable to the blatant failure by the respondent to comply with its requirements.  The tribunal is also satisfied in the alternative that the claimant’s dismissal was unfair under Article 130 of the 1996 Order, the respondent not having shown a potentially fair reason under the Order such as to justify the dismissal.

 

32.     The claimant sought by way of remedy compensation only and confirmed at hearing that only a basic award was sought in respect of his unfair dismissal, no compensatory award was sought.  The tribunal orders the respondent to pay a basic award for unfair dismissal of four week’s gross pay under Article 154(1A) of the 1996 Order being £1,058.96.

 

33.     The tribunal finds that in breach of the claimant’s contract of employment the respondent failed to give him the minimum notice of termination required under Article 118(1) of the 1996 Order and orders that the respondent pay two week’s net pay in respect thereof being £388.30.

 

34.     The tribunal finds that in breach of the claimant’s contract of employment the respondent failed to pay him the full balance of wages outstanding to him for the month of March 2008 and eight working days in April 2008 totalling £889.83, the respondent has made an unauthorised deduction in respect thereof and the respondent shall pay the claimant £889.83 in respect of unpaid wages.

 

35.     The tribunal finds that the claimant was entitled to a payment on termination of his employment in respect of holidays not taken based at least on the minimum number of days provided under the Working Time Regulations and orders that the respondent pay him pro rata net holiday pay for 6.6 days holidays being £256.28.

 

36.     Under Article 27 of the 2003 Order the tribunal awards the claimant the minimum amount equal to two week’s pay for the employer’s breach of its duty to give to the employee a written statement of particulars of employment being £529.48.

 

37.     The tribunal furthermore finds that the respondent failed to provide a written statement giving particulars of the reasons for the claimant’s dismissal and awards two week’s pay in respect thereof being £529.48.

 

CONCLUSION

 

38.     The respondent shall pay the claimant the following compensation:-

 

BASIC AWARD

 

£1,058.96

 

NOTICE PAY

 

£388.30

 

OUTSTANDING WAGES

 

£889.83

 

 

 

 

HOLIDAY PAY

 

£256.28

 

 

FAILURE TO GIVE WRITTEN STATEMENT OF PARTICULARS OF EMPLOYMENT

 

£529.48

 

FAILURE TO PROVIDE WRITTEN STATEMENT GIVING PARTICULARS OF REASONS FOR DISMISSAL

 

£529.48

 

TOTAL         £3,652.33

 

RECOUPMENT

 

39.     Your attention is drawn to the Notice attached which forms part of the decision of the tribunal.

 

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

 

 

Chairman:

 

 

Date and place of hearing:         15 January 2010, Belfast.

 

 

Date decision recorded in register and issued to parties:

Case Ref No:  0097/08

 

CLAIMANT:                    Mariusz Karpinski

 

 

RESPONDENT:             Manor Interiors Limited (In Liquidation)

 

ANNEX TO THE DECISION OF THE TRIBUNAL

 

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.

 

 

          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 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 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 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 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.