THE INDUSTRIAL TRIBUNALS

CASE REFS:   1407/10
1585/10

CLAIMANT:			Alexander McBrine

RESPONDENT:		Rogers & Smyth (NI) Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed.  The claimant is also entitled to unpaid wages, holiday pay, notice pay and redundancy payment as set out in the body of the decision.

Constitution of Tribunal:
Chairman:		Mr Patrick Kinney
Members:		Mr Samuel Adair
			Mr James Kerr

Appearances:
The claimant was represented by Ms E Hamilton, Solicitor, of Copeland McCaffrey, Solicitors.
The respondent did not appear and was not represented.

Facts

1.	The claimant was employed by the respondent from 1 May 1980 until his employment ended on 21 April 2010.  The claimant’s age at the date of dismissal was 46 years and he had 29 years of continuous service with the respondent.  

2.	At the date of termination of employment the claimant’s gross weekly wage was £263.08 and his net weekly wage £219.20.

3.	The claimant’s employment terminated on 21 April 2010 when the respondent ceased trading.  No dismissal procedure whatsoever was followed by the respondent.  The claimant had an annual holiday entitlement of 29 days and he had taken no days holidays in the current year.  The claimant had not been paid his lying week’s wages and had received no notice pay.  The claimant is in receipt of Jobseeker’s Allowance in the sum of £64.30 per week which terminated on 11 August 2010.  The claimant has attempted to find other employment but with no success.  

4.	After hearing the claimant’s evidence the tribunal is satisfied that his claims are well-founded and we make the following awards:-

		(i)	Unpaid wages

The claimant is entitled to one week’s unpaid wage in the sum of £219.20

		(ii)	Holiday pay

The claimant is entitled to 10 days’ holiday pay for holidays accrued during the current holiday period but not taken.  Holiday pay is based on the net weekly wage.  The claimant is entitled to £438.40 in respect of holiday pay.

		(iii)	Redundancy pay

The claimant’s redundancy pay is calculated taking into account his age, length of service and his gross pay.  The claimant is entitled to the sum of £5,919.30 for redundancy pay.

		(iv)	Notice pay

The claimant is entitled to 12 weeks’ notice pay based on his net weekly wage of £219.20.  The claimant is therefore entitled to £2,630.40 notice pay.

		(v)	Unfair dismissal

Under the terms of Article 130A of the Employment Rights (Northern Ireland) Order 1996 an employee is unfairly dismissed if one of the dismissal or disciplinary procedures set out in the Employment (Northern Ireland) Order 2003 applies in relation to the dismissal, that procedure has not been completed and the              non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.  In this case the tribunal is satisfied that the employer has failed to comply with the requirements of the statutory dismissal and disciplinary procedures and the claimant’s dismissal is therefore automatically unfair.  The claimant is entitled to a basic award of £5,919.30.  In calculating the compensatory award the tribunal took into account the attempts made by the claimant to obtain further work and the current economic climate and it is the view of the tribunal that a future loss of 52 weeks should be allowed, based on the claimant’s net weekly pay making a compensatory award figure of £11,398.40.  The total award for unfair dismissal is £17,317.70.  To avoid duplication of award, from this figure should be deducted the redundancy payment of £5,919.30 and the notice pay of £2,630.40, leaving a net figure of £8,768.00.

5.	Under the provisions of the Employment (Northern Ireland) Order 2003 where an employer fails to follow the statutory dismissal procedure the tribunal should uplift the amount of the compensatory award by at least 10% and up to a maximum of 50%.  The claimant has had long service with this employer and was given no advance warning of the impending closure of the business and had written to the employer without reply.  In those circumstances, the tribunal considered the appropriate uplift is 40%.  This results in a total award for unfair dismissal of £12,275.20.  

6.	The claimant is also entitled to £300.00 for loss of statutory rights.  

7.	The Recoupment Regulations apply.  

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

Chairman:

Date and place of hearing:	18 November 2010, Belfast

Date decision recorded in register and issued to parties:

Case Ref Nos 1407/10
1585/10
CLAIMANT:		 Alexander McBrine 
RESPONDENT:		 Rogers & Smyth (NI) Ltd 
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 Social Security (Miscellaneous Amendments No 6) 
(Northern Ireland 2010 
£ 
(a) Monetary award 						12,27520 
(b) Prescribed element 					 6,576 00 
(c) Period to which (b) relates: 				      21 April 2010 to 
								                18 November 2010 
(d) Excess of (a) over (b) 					 5,699.20 
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-related Employment and Support Allowance or Income Support received by the claimant in respect of that period, (b) is not payable until the Department for 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-related Employment and Support 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 nine 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 claimant will receive a copy of the recoupment notice and should inform the Department for 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.