THE INDUSTRIAL TRIBUNALS

CASE REF: 00225/09
 
CLAIMANT: 	Jonathan Devlin
RESPONDENT: 	Living Room (NI) Limited 

Certificate of Correction

In the decision issued on 8 January 2010, the following amendments apply: 

1.	 The respondent is ordered to pay the sum of £29,612.50 to the claimant. 
2.	Paragraph 23, Basic Award. The applicable weekly statutory maximum was £350. 
Therefore: £350 X 1 year = £350
 
3. 	Paragraph 27, Summary of Compensation. Basic Award £350. 
Total compensation before uplift: £25,750.00. 

4. 	Paragraph 28, Uplift under the Employment (Northern Ireland) Order2003. 
          £25750 X 15% = £3862.50 
          Total Award = £29612.50 

Chairman: _______________________________________
             
Date: ____________________________________________
THE INDUSTRIAL TRIBUNALS

CASE REF:	00225/09

CLAIMANT:			Jonathan Devlin

RESPONDENT:		Living Room (NI) Limited

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed.  The respondent is ordered to pay the sum of £29,651.97 to the claimant.  The respondent is also ordered to pay the sum of £860.00 being in respect of holidays accrued but not taken as at the date of dismissal. 

Constitution of Tribunal:

Chairman:		Ms W A Crooke

Members:		Mrs E Kennedy
			Mr R Lowden

Appearances:

The claimant was represented by Mr C Patton, Barrister-at-law, instructed by Francis J Madden Solicitors.

Miss M McCreesh of the respondent appeared in person and represented the respondent. 

SOURCES OF EVIDENCE

1.	The claimant gave evidence his own behalf.  Ms M McCreesh of the respondent company gave evidence on behalf of the company. 

THE CLAIM AND THE DEFENCE

2.	The claimant claimed that he had been unfairly dismissed.  This claim was denied by the respondent. 

THE RELEVANT LAW

3.	The relevant law is found in Article 130 and 130(A) of the Employment Rights (Northern Ireland) Order 1996.  

(1)	Article 130 (1) and (2) state:

130(1)	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–

(a)	The reason (or), the principal reason for the dismissal, 

(b)	That it is either a reason falling within 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. 

130(2)  	A reason falls within this paragraph if it–

(a)	relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)	relates to the conduct of the employee,

(c)	is that the employee was redundant, or 

(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision. 

(2)	Article 130 (A) states:

(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 the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal, and 

(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. 

(2)	Subject to paragraph (1), failure by an employer to follow a procedure in relation to a dismissal of an employee shall not be regarded for the purposes of Article 130 (4) (a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure. 

(3)	The tribunal also considered the Working Time (Regulations) (NI) 1998.

PRELIMINARY ISSUES

4.	At the outset of the hearing Mr Patton raised a preliminary issue which was that the claimant considered that he had been employed at all times by two individuals Antony Campbell and Maurisia McCreesh, rather than by a limited company.  His grounds for advancing this convention were that the company did not trade with the word “Limited” after its name on its shop front, and that the claimant was simply not aware that Mr Campbell with whom he mainly worked and Miss McCreesh with whom he had formally worked in another business traded  as a limited company.  

5.	As the respondent was able to provide evidence of incorporation together with evidence of VAT registration, the tribunal did not consider that there was sufficient evidence from the claimant to realistically controvert the respondent’s contention that it traded at all times as a limited company.  

6.	Accordingly the tribunal finds that the respondent is correctly a party to these proceedings. The fact that Miss McCreesh paid the claimant in cash was a facility that she had put in place to help the claimant, by way of her cashing his salary cheque through the company account. 

FACTS FOUND

7.	At the time of termination of the employment the claimant had worked for the respondent as a floor fitter-delivery driver for approximately one year and two months.

8.	On Thursday 6 November 2008, the claimant was informed by Mr Antony Campbell that he intended to close the business down as a result of an argument with his wife Anne Campbell.  The claimant was told by Mr Campbell that Mrs Campbell had been “sacked” from the business and had left home.

9.	Accordingly the claimant accompanied Mr Campbell to the business where they found Mrs Anne Campbell and Ms McCreesh in the business premises. A fairly fierce argument ensued involving name-calling and insults. The claimant made it clear that he did not want to be brought into the row and subsequently left the premises with Mr Campbell. 

10.	With Mr Campbell he went to Cookstown to visit the respondent’s bank. The claimant’s understanding was that Mr Campbell tried to cancel credit cards and chequebooks of the business, but was told that he would need to speak to the bank’s legal department. At this point the claimant was dropped at a job at his uncle’s house and he understood Mr Campbell went on to his own solicitor to deal further with the situation. 

11.	Before he went to the bank, the claimant visited the business premises once more with Mr Campbell and found a notice on the premises stating that the business was closed for stock taking for that day. Mr Campbell however went in and put up his own sign stating that the business had been closed down. 

12.	While at the job at his uncle’s house, the claimant received a call from his cousin Sinead who also worked part time for the respondent in sales and administration. She told the claimant that Mr Campbell had also told her not to come in that day. Later on that day Mr Campbell met with both the claimant and his cousin and confirmed that the respondent company was closing down and assured both the claimant and his cousin that all monies due would be paid to them but through his solicitors. On this basis, the claimant agreed to help tidy up the loose ends of the respondent company on the following day together with Mr Campbell. 

13.	At the end of the following day’s work the claimant asked Mr Campbell whether that was that and he agreed. Mr Campbell said that he would pay the claimant’s wages the following day but he did not do so. 

14.	The claimant pursued payment with Mr Campbell through a series of text messages.  Eventually Mr Campbell’s son Cathal came to the claimant’s house and paid him for that week’s work. The claimant asked Mr Cathal Campbell for information about the situation and was told that his father was giving his mother some time to “tidy up her act” and that his father was going to proceed with legal action against Ms McCreesh regarding the business as he believed money was going missing from the respondent company. This was the extent of this discussion and he did not cover any issues about holiday pay or notice with Mr Campbell Junior.

15.	The claimant gave the respondent a week’s “grace” in the hope that somebody would come to talk to him about his holiday pay. He instructed his solicitors to send a letter to the respondent stating that he was owed holiday pay and that he intended to proceed with a claim from unfair dismissal and the tribunal finds that this was a first stage grievance letter which complied with the statutory procedures set out in the Employment (Northern Ireland) Order 2003. 

16.	The claimant heard from his cousin that Mr Cathal Campbell had taken over his role in the respondent.

17.	Miss McCreesh admitted that she had received the letter from the claimant’s solicitor and in response had phoned the solicitor and said that the claimant had not been sacked and was welcome to come back to work.  Miss McCreesh denied that the claimant’s job had been taken over by Cathal Campbell saying that he had Asperger’s Syndrome and more or less came and went as he pleased in his parent’s business, perhaps helping with deliveries sometimes, but frequently using the internet. The tribunal finds that there is insufficient evidence to find that Mr Cathal Campbell took over the claimant’s job.

18.	No hearing was arranged and this was a breach of Schedule One of the Employment (Northern Ireland) Order 2003.

19.	The respondent company carried on trading. 

CONCLUSIONS

20.	We find that the claimant was automatically unfairly dismissed as a result of the respondent’s failure to complete the statutory dismissal procedure which is set out in Schedule One of the Employment (Northern Ireland) Order 2003. Without warning the claimant was simply told his employment was finishing and although the claimant initiated a first stage letter, this did not meet with a request to meet with the respondent’s directors, Mr Campbell and Ms Mc Creesh. There was simply a telephone denial of dismissal and an assertion that the claimant’s job was still available for him. There was no attempt to complete the procedure at all. 

21.	We also find the claimant’s dismissal to be unfair on general substantive grounds as opposed to being only procedurally unfair. It was common case that there had been some sort of row between Mr and Mrs Campbell which carried on into the workplace the following day. It was for reasons related to this row that Mr Campbell told the claimant that the business was closing down. Presumably, if the business had closed down then the substantive reason for dismissal would have been on the grounds of redundancy, but the fact remains that the business continued to operate after the dismissal of the claimant. Plainly no redundancy situation existed and the dismissal did not come about through anything to do with the claimant.

22.	No argument was advanced to the tribunal to suggest that adhering to the statutory procedure would have made no difference to the ultimate result. Given that Ms McCreesh professed herself keen on the telephone to have the claimant back to work, the tribunal considers that it is more likely than not that a meeting at which all the issues involved in this case could have been discussed, would have made a great deal of difference, especially to the claimant who was naturally concerned at the way he had been treated. We do not consider that we need to make any finding on whether Mr Cathal Campbell took over the claimant’s job. It was not argued before us that Mr Campbell already worked for the company and that the claimant’s responsibilities had been amalgamated with his.  We consider from the evidence before us that no redundancy situation existed at this point in time either by way of disappearing workplace or disappearing job. 

COMPENSATION

23.	Basic Award

At the time of dismissal the claimant had one completed year of service at the age of 32 years.  Therefore the multiplier that should be applied to the calculation is one.  It was agreed between the parties that his gross weekly wage was £384.32. Therefore;–

£384.32 X 1 Year =   £384.32

24.	Immediate Loss

The claimant was dismissed on 7 November 2008 and to 19 December 2009 is a period of 58 weeks.  Therefore, with a net weekly wage of £300.00 the immediate
loss is calculated as follows: 

£300.00 X 58   =   £17,400.00

The claimant has not been successful in generating an income for himself from his new business and has not claimed Jobseeker’s Allowance therefore there are no post-dismissal receipts to be deducted and no question of recoupment arises in connection with this decision. 

25.	Future Loss

The claimant’s counsel contended that in the current economic climate it would take the claimant at least 26 weeks to obtain another job which would pay him the same amount of remuneration as that which he had lost.  Therefore £300.00 X 26 = £7,800.00.

26.	Loss of Statutory Rights

	Taking account of the length of time the claimant worked for the respondent we have awarded the figure of £200.00.

27.	Summary of Compensation

	Basic Award: £384.32	 

	Compensatory Award–Immediate Loss; £17,400.00

	Future Loss: £7,800.00

	Loss of Statutory Rights: £200.00

	Total Compensation before uplift: £25,784.32

28.	Uplift under the Employment (Northern Ireland) Order 2003

	Mr Patton submitted very fairly that in the circumstances of the case the uplift should be 15% and we adopt his suggestion as we do not consider that this was a case of a flagrant disregard of the statutory procedure. 

	£25,784.32 X 15% = £3,867.65

	Total Award = £29,651.97

29.	Failure to give Notice

	We are not making a specific award under this head of damage as to do so would doubly compensate the claimant.

30.	Holiday Pay

	At the time of this dismissal the claimant was entitled to 20 days per year under the Working Time Regulations (NI) 1998 and it was agreed between the parties that the claimant’s entitlement was 11 days being the residue of holidays untaken for his full year of service and 3 and one third days for the 2 months he had worked into the second year of this employment. 

	Total Entitlement: 14 and one third days.

As the claimant earned £60.00 net per day then his entitlement to holiday pay accrued but not taken at termination of employment is:

 60 X 14 and one third days = £860.00.

31.	This is a relevant decision for the Industrial Tribunals (Interest) Order (NI) 1990.      

Chairman:

Date and place of hearing: 	18 September 2009, Belfast.

Date decision recorded in register and issued to parties: