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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wood v Barbour [2007] NIIT 2590_06 (29 August 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/2590_06.html Cite as: [2007] NIIT 2590_6, [2007] NIIT 2590_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2590/06

2508/06

CLAIMANT: Matthew Wood

RESPONDENTS: 1. Anthony Barbour

2. James Mawhinney

3. Ann's Pantry

DECISION

The unanimous decision of the tribunal is that the claimant is entitled to receive the sum of £25,732.50 from the respondent as compensation for unfair dismissal; the claimant is also entitled to receive the sum of £2,450.00 in respect of notice pay; the sum of £350 in respect of unpaid wages; the sum of £700 in respect of holiday pay accrued but not taken at the time of dismissal; the sum of £1,400 as compensation for failure to provide a written statement of employment and the sum of £1,430 as compensation for unnotified deductions. The respondents are ordered to pay all these sums to the claimant.

Constitution of Tribunal:

Chairman: Ms Crooke

Members: Mr O'Hea

Mrs Cummings

Appearances:

The claimant was represented by Mr Harry Coll, Solicitor of Elliott Duffy Garrett, Solicitors.

The respondents did not appear and did not instruct any representation. Given the fact that this case had been in the list for some considerable time and already had been addressed on 6 June 2007, the tribunal considered it to be consistent with the overriding objective to hear the claim in the absence of the respondents. However, the responses of the respondents were considered by the tribunal in reaching its decision.

Sources of Evidence

The tribunal heard oral evidence from the claimant and perused some letters written by Mr Coll to the respondents.

The Claim and the Defence

The claimant made the following claims:-

unfair dismissal;

breach of contract;

failure to provide written reasons for dismissal;

unauthorised deductions;

failure to provide paid annual leave;

failure to provide written particulars of employment; and

failure to provide itemised pay slips.

The claim for failure to provide written reasons was not pursued before the tribunal. Consequently the tribunal makes no order in connection with this claim.

The respondents claimed that the claimant had been fairly dismissed for theft. In their response to the tribunal claim, they accepted that they had failed to provide the various documents required by employment law and had failed to comply with the Statutory Grievance and Disciplinary Procedures.

The Relevant Law

Articles 44 and 45 of the Employment Rights (Northern Ireland) Order 1996.

Articles 126 and 130 of the same Order.

Article 17 and Article 27 of the Employment (Northern Ireland) Order 2003.

Findings of Fact

1. The claimant was employed by the respondents as a manager in their outlet in Queen's Arcade, Belfast. At the time of dismissal he had seven completed years of service.
2. On 13 October 2006 he was dismissed allegedly on the ground of theft at close of business on that day, without any prior notice of a disciplinary matter being given to him. He was not paid any notice pay. He was not paid his accrued one week's wages and he was not paid outstanding holiday pay.
3. His dismissal took place without any form of due process as set down in the relevant law whatsoever.
4. After dismissal, the solicitor for the claimant wrote to the respondents offering them the opportunity to conduct a grievance hearing in respect of these matters. No response was received.

Conclusions

5. The tribunal concluded that the claimant had been unfairly dismissed on procedural grounds and as this failure was totally attributable to the respondents increased the award of compensation payable by 50% in accordance with Article 17 of the Employment (Northern Ireland) Order 2003.
6. The tribunal declares that the claimant is entitled to receive eight weeks of notice pay being one week in respect of every year of service. The claimant is also entitled to receive two weeks' holiday pay accrued but untaken at the time of dismissal and one week's accrued but unpaid wages.
7. The tribunal accepted that the claimant had not received a written statement of particulars of employment and pursuant to Article 27(4) of the Employment (Northern Ireland) Order 2003 awarded a sum of four weeks' net pay in respect of this breach.
8. The tribunal also accepted that no payslips had been given notifying deductions from wages as is required by the Employment Rights (Northern Ireland) Order 1996. Consequently the tribunal considers that all deductions made have not been notified to the claimant and as the figure of £350 was confirmed to be the proper net wage by the respondent to the claimant on a number of occasions, the provisions of Article 44(4) of the Employment Rights (Northern Ireland) Order 1996 entitle us to order the respondents to pay to the claimant the sum of £1,430 being deductions of £110 per week for the period of thirteen weeks.

Calculation of Compensation

Award for unfair dismissal

Basic Award

At the time of dismissal the claimant was 25 years of age and between the ages of 18 and 25 years he had 7 completed years' of service, 4 of which fell between the ages of 18 to 22 years and thus attract a multiplier of a ½ and 3 of which fell between the years of 22 to 40, thus attracting a multiplier of 1. As the claimant's net weekly wage was £350 per week the statutory maximum cap applies and the relevant figure is £290 as the weekly figure for gross wages.

£290 x 5 = £ 1,450

Immediate Loss

The period from 13 October 2006 to 29 August 2007 is 47 weeks.

47 weeks x £350 per week = £16,450

Post Dismissal Receipts

The claimant had obtained 2 part-time jobs. One was delivering pizza 2 nights a week and the other was working for his previous employer in Ann's Pantry in Larne. The pizza job netted him £90 per week and the Ann's Pantry job netted him £60 per week.

9. 5 weeks @ £90 per week = £ 2,745.00

10 weeks @ £60 per week = £ 600

The tribunal is also deducting the figure of £2,800 in respect of notice pay which will be awarded later on in this decision to avoid double compensation. The total of deductions is £6,145 leaving the total immediate loss after deductions as £10,305.

Future Loss

The tribunal accepted the submission that the claimant had some way to go in making up his former wage and accepted that there was a shortfall of £200 per week. The tribunal considers that it will take the claimant approximately 6 months to make up this deficiency and awards the figure of:

26 weeks @ £200 per week = £5,200

The tribunal also awards the figure of £200 for loss of statutory rights.

Total Unfair Dismissal Compensation Summary

Basic Award £ 1,450

Immediate Loss £10,305

Future Loss £ 5,200

Loss of Statutory Rights £ 200

Sub Total £17,155

Article 17 Uplift

It was plain from the evidence that the failure to comply with the Statutory Grievance and Dismissal Procedures was totally attributable to the employer. As such the tribunal awards an uplift of 50% of the award for unfair dismissal = £8,577.50. Final award for unfair dismissal = £25,732.50.

Claims in Respect of Failure to Provide Wages

(a) As the claimant had seven completed years of service with his employer the tribunal awards him one week's net pay for each of those years being £350 x 7 = £2,450.

(b) The tribunal accepts the claimant's evidence that he was not paid his accrued weekly wages of £350.

(c) The tribunal accepts the claimant's evidence that he was not paid his two weeks accrued but untaken holiday pay of £700.

Failure to provide employment documentation

Contrary to the Employment Rights (Northern Ireland) Order 1996 the claimant was not provided with a written statement of particulars of employment. By virtue of Article 27(4) of the Employment (Northern Ireland) Order 2003 the tribunal is entitled to award up to 4 weeks net salary as compensation for that failure.

4 weeks x £350 = £1,400

Payslips

If no payslips have been provided contrary to Article 44(4) of the Employment Rights (Northern Ireland) Order 1996 the tribunal deems that the claimant is entitled to believe that the figure of £350 is his proper net weekly wage and that £110 of weekly deductions were made in respect of his salary. As no payslip has been given to him, the claimant is entitled to say that these were unnotified deductions. The tribunal accepts that £110 per week of unnotified deductions have been made and awards compensation to the claimant equal to the sum of 13 weeks @ £110 which is £1,430.

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

The claimant was in receipt of benefit from 21 October 2006 to 31 January 2007 which is a period of 15 weeks.

The attention of the parties is directed to the Recoupment Notice which accompanies this decision.

Chairman:

Date and place of hearing: 29 August 2007, Belfast

Date decision recorded in register and issued to parties:

Case Ref No: 2590/06

2508/06

CLAIMANT: Matthew Wood

RESPONDENTS: 1. Anthony Barbour

2. James Mawhinney

3. Ann's Pantry

ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME SUPPORT
10. 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	25,732.50
(b) Prescribed element	5,250.00
(c) Period to which (b) relates:	21 October 2006 – 31 January 2007
(d) Excess of (a) over (b)	20,482.50

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.

11. 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.
12. 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.