Park v McCourt (t/a Kelly's Cellars)  (Unfair Dismissal)  (7 June 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	3200/01

APPLICANT:	Stephen Park

RESPONDENT:	Ciara McCourt
			T/a Kelly's Cellars 

DECISION
The unanimous decision of the tribunal is that the applicant was unfairly dismissed.  The tribunal orders the respondent to pay to the applicant the sum of £8,608.43, subject to the Recoupment Provisions which apply in this case.

Appearances:
The applicant was represented by Mr D Dunlop, Barrister-at-Law, instructed by 
McIvor & Farrell, Solicitors 
There was no appearance by or on behalf of the respondent 

This is a reserved decision in summary form.

THE ISSUE

1.	The applicant’s claim was that he had been unfairly dismissed by his employer.  In the absence of a Notice of Appearance nor any application or representation at tribunal by or on behalf of the respondent, the tribunal had to, firstly, determine the correct identity of the respondent and, secondly, determine if the applicant had been dismissed by the respondent and, if so, whether the dismissal was fair or unfair.  The applicant also claimed breach of contract and the tribunal had to determine any issue pertinent to that claim, additionally.  

THE TRIBUNAL’S FINDINGS

In consequence of the written and oral evidence adduced before it the tribunal found the following facts:-

2.	The applicant commenced employment with Croft Inns Limited ("Croft Inns") in February 1999.  Croft Inns is the owner of a number of licensed premises, including a number in the greater Belfast area.  In the course of his employment with Croft Inns, the applicant worked in a number of these licensed premises.  In October of 2000 the applicant began working in a licensed premises in Belfast known as “Kelly’s Cellars” which was then owned by Croft Inns.  At that time the applicant was employed as the chargehand/acting manager of Kelly's Cellars.  

3.	The applicant became aware in the early part of 2001 that Croft Inns had put the Kelly's Cellars licensed premises on the market for sale.  The applicant was subsequently introduced to a Mr Ciaran McCourt which person he took to be the prospective purchaser of these licensed premises.  Mr McCourt asked the applicant if he would be agreeable to staying on after the sale had been completed in the capacity of bar manager.  The applicant agreed with the proposal.  A wage of £250 per week net was discussed and agreed.  The premises were transferred by Croft Inns to the new owner in May of 2001.  At this time the applicant still had engaged in dealings solely with Mr McCourt.  

4.	A short time after the completion of the transfer of the licensed premises, Mr McCourt introduced the applicant to his daughter, Ms Ciara McCourt.  Initially, the applicant did not appreciate that Ms McCourt was the new proprietor and the licensee of Kelly's Cellars.  A very short time after this, significant differences of opinion emerged between Ms Ciara McCourt and the applicant.  In the applicant's opinion Ms McCourt had little or no experience of running a licensed premises.  She introduced new members of bar staff without consultation with the applicant.  As the applicant had been engaged to manage the premises, he felt that he should have been consulted and his views taken into account.  The applicant thought it best practice to have experienced bar staff.  As the applicant saw it, Ms McCourt wished to appoint staff who had little or no experience but who were her personal friends.  At this time, she stated bluntly to the applicant that she was the boss, she owned the premises and it was up to her to make the decisions.  She refused to allow the applicant to enter that part of the premises which consisted of a licensed restaurant.  

5.	On Thursday 28 June 2001 the applicant approached Mr McCourt. He indicated to Mr McCourt the problems that were then being experienced by him, and he requested Mr McCourt to endeavour to resolve these problems.  It was at that point that Mr McCourt confirmed to the applicant that his daughter, Ms Ciara McCourt, was indeed the licensee and the proprietor of Kelly's Cellars.  The applicant was somewhat taken aback, as this was the first time that this information had been confirmed to him by the person that he had believed to be the owner.

6.	Mr McCourt then told the applicant to take the rest of the week off.  On the afternoon of Saturday 30 June 2001, the applicant received a telephone call from Mr McCourt.  Mr McCourt said to him that he had had a meeting with his daughter, Ms Ciara McCourt, and that she had decided that the applicant’s services were no longer required.  The applicant requested Mr McCourt to explain what that statement meant.  Mr McCourt explained that his daughter, as the owner of the licensed premises, had sacked him.  There was no other or more specific explanation afforded and no reason for the dismissal was stated.  The applicant’s reaction to this information and to the manner in which it was imparted to him was one of shock and disbelief.  The applicant endeavoured further to contact Ciara McCourt by letter to seek an explanation, but this was to no avail and no response was received.  Indeed the applicant received no written communication or notice whatsoever from Ms McCourt.  The applicant was not just shocked and distressed as to the manner of the dismissal, he was also put through the somewhat humiliating and embarrassing experience of being unable to meet one monthly mortgage payment as it took him a period of time to secure alternative employment and there was a delay in his receipt of state benefits which he applied for as soon as the dismissal was confirmed to him.  This latter delay was on account of a corresponding delay on the part of his former employer in responding to enquiries from the Social Security Office from which he had claimed benefits.  The applicant also experienced considerable upset occasioned by the fact that he had given up a secure and potentially profitable and long-term career with Croft Inns, with which firm he had enjoyed an excellent employment relationship, only to witness the post which he had agreed to take up, after his summary dismissal, filled as he understood the situation to be, by a friend of the proprietor who had little or no experience of the licensed trade.

THE TRIBUNAL’S DECISION

7.	In regard to the issue of the correct respondent in these proceedings, whilst all the applicant’s dealings initially were with Mr Ciaran McCourt, the tribunal has little doubt that the owner and the licensee of the Kelly's Cellars premises was in fact Mr McCourt’s daughter, Ms Ciara McCourt, and that Mr McCourt had engaged in various dealings, including dealings with the applicant, as an agent on behalf of his daughter, Ms McCourt.  The tribunal therefore determines that the correct respondent is Ms Ciara McCourt trading as Kelly’s Cellars.  That person was the applicant's employer.  

8.	The applicant was dismissed by the respondent.  In regard to the applicant’s claim of unfair dismissal, an employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 unless the employer can show that the dismissal is fair for one of the reasons set out in Article 130 of that Order.  In this case, the respondent has made no endeavour to defend these proceedings and the tribunal can discern, from the facts in evidence, no good, proper or fair reason for the applicant’s dismissal.  The tribunal has therefore no difficulty in finding that the applicant was unfairly dismissed by the respondent, both as to the fact that there appears to have been no substantive basis for the dismissal and also on the grounds that the manner of the dismissal was entirely high-handed and arbitrary and was quite unfair.  The tribunal finds that, in a case such as this, there is little or no need to refer expressly to the leading authorities upon the issue of the reasonableness of the employer’s conduct nor in respect of the importance of procedural safeguards in dismissal matters.

9.	In regard to the applicant’s claim for breach of contract, the tribunal derives its jurisdiction from the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, Article 3, which Article provides that proceedings may be brought before an industrial tribunal in respect of a claim on the part of an employee for the recovery of damages or any sum (other than in respect of personal injuries) if the claim arises or is outstanding on the termination of the employee’s employment.  In this case, the tribunal finds that the respondent acted in breach of the contract of employment which existed between the applicant and the respondent.  

10.	The tribunal then considered the matter of compensation and damages.  In his Originating Application, the applicant had initially claimed reinstatement, but at the hearing he indicated that he was seeking compensation only.  At the time of his dismissal by the respondent, the applicant was a weekly-paid employee earning a net wage of £250 per week.  His gross salary was £308 per week.  At the commencement of this employment he had worked a lying week.  At the time of his dismissal he was owed three weeks pay in lieu of holiday leave.  This entitlement on the applicant's part had been discussed and the liability in regard to this had been agreed for and on behalf of the respondent at the time the business was acquired by the respondent from Croft Inns.  After his dismissal, the applicant sought state benefits but received nothing for the first two weeks.  For the subsequent two weeks, he received £38.00 per week Jobseeker’s Allowance.  After this period of four weeks, the applicant secured employment with "Café Milano" for three weeks at a wage of £170 per week net.  He then worked in the "Shenanagan Rooms" until mid-December 2001 on an hourly-paid basis.  The tribunal inspected the applicant's wages documentation from that employment and determines the applicant's net weekly wage from that employment at £150 per week net.  From mid-December 2001 onwards to the date of hearing, the applicant had been employed in the "Rock Bar", earning a net wage of £184.61 each week.  The tribunal, having heard the applicant’s evidence, was satisfied that the applicant’s chances of securing a position as a bar manager at a wage comparable with that earned in employment with the respondent had been considerably set back by these events, and that he would require some time to work his way up to a position of seniority where his income could again match the income earned at the date of his dismissal by the respondent.  There is no issue, as far as the tribunal is concerned, regarding the applicant’s mitigation of loss.  

11.	The tribunal noted the applicant’s representative’s submission in respect of damages for injury to feelings and Northern Ireland Industrial Tribunal decision in the case of Fergal Barr –v- St Columb’s Park Reconciliation Trust Ltd, (Case Reference 04003/99UD and 04004/99BC, decision dated 13 September 2001) argued by the applicant’s representative in support of such a submission.  That case takes account of the authority of the House of Lords in the case of Johnston –v- Unisys Ltd [2001] IRLR 279 and the speech of Hoffman LJ (at P.288: 55):-

“The emphasis is upon the tribunal awarding such compensation as it thinks just and equitable.  So I see no reason why in an appropriate case it (loss) should not include compensation for distress, humiliation, damage to reputation in the community or to family life.”

	The tribunal considers that latter case as binding authority upon it.  The tribunal further notes another binding authority upon it, that case being the judgement of the Court of Appeal in Northern Ireland in the case of McConnell –v- Police Authority for Northern Ireland [1997] IRLR 625 , which authority established the principle that an award of aggravated damages should not be an extra sum over and above the sum which the tribunal of fact considers appropriate compensation for the injury to the claimant’s feelings.  Any element of aggravation ought to be taken into account in reckoning the extent of the injury to feelings, for it is part of the cause of that injury.  The tribunal determines that this is an appropriate case for such an award of damages for injury to feelings, including an award of aggravated damages arising from the manner of, and the circumstances surrounding, the dismissal.  However the tribunal also takes the view that this case falls into the lower category of such awards.

12.	The tribunal, taking all of the foregoing into account, now Orders the following compensation to be paid by the respondent to the applicant:-

BASIC AWARD

£240  x  2 =						£  480.00

COMPENSATORY AWARD

Immediate Loss:  Loss of salary from date of dismissal to 
date of hearing (30 June 2001 – 13 March 2002) 
36½ weeks x £250 =					£9,125.00  
Less state benefits received						£     76.00
Less earnings from Café Milano £170 x 3				£   510.00
Less earnings from the Shenanagan Rooms £150 x 17 =		£2,550.00
Less earnings from the Rock Bar - £184.69 x 12 1/2	=		£2,308.63
					                                                £5,444.63
Total immediate Loss: 				£3,680.37

Future Loss

Taking everything into account, the tribunal feels that it is appropriate to make an award for future loss of a sum equivalent to 26 weeks loss.  The continuing loss is £65.31 per week.  The award for future loss is therefore as follows:-

£65.31 x 26 =				          £1,698.06

Loss of Statutory Industrial Rights

The tribunal makes an award of:-                                £250.00

Compensation for Injury to Feelings

13.	In this matter the tribunal is of the opinion that the applicant sustained, to a material extent, a degree of injury to feelings and humiliation arising from the fact of the dismissal and the manner in which the same was conducted.  The tribunal notes the applicant’s oral testimony in that regard.  The applicant was forced to miss one monthly mortgage payment on account of his incapacity to pay, which fact caused him some humiliation and embarrassment.  Noting the authorities mentioned above, the tribunal thinks it appropriate to make a relatively modest award for injury to feelings, including an award of aggravated damages, of £1,500.  

OTHER COMPENSATION

14.	Finally, the tribunal notes that the applicant was owed three weeks outstanding holiday pay and a lying week’s pay at the date of dismissal and therefore makes an award of an additional three weeks’ net pay in respect of this as follows:-

£250 x 4 =		£1,000

	The total of the Monetary Award awarded in compensation is £8,608.43			.

	The tribunal therefore Orders the respondent to pay to the applicant the sum of £8,608.43,		subject to the Recoupment Provisions which apply in this case.

	RECOUPMENT OF BENEFIT FROM AWARDS

The applicant did receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 apply.  The following recoupment of benefit is therefore applicable in this case:

(a)	Monetary Award:							    £8,608.43
(b)	Prescribed Element:							    £5,378.43
(c)	Prescribed Period: 30 June 2001 to 13 March 2002
(d)	Excess of (a) over (b):                                                                             £3,230.00

AND the attached Recoupment Notice forms part of the decision.  Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

____________________________________

Date and place of hearing:  13 March 2002, Belfast

Date decision recorded in register and issued to parties: 7 June 2002