THE INDUSTRIAL TRIBUNALS

CASE REF:    5759/09

CLAIMANT:	Samuel McCormack			

RESPONDENT:	Nu-Track Limited			

DECISION ON REMEDY

The unanimous decision of the tribunal is that the compensation awarded to the claimant should not be reduced as a result of the claimant’s conduct. The compensation is set out in the Schedule hereto and was agreed by the parties save for the amount of future loss which was calculated by the tribunal.

Constitution of Tribunal:		

Chairman:		Mr Patrick Cross		

Panel Members:	Mr Richard J Gray
			Mr Alan Henry

Appearances:

The claimant was represented by Mr N Gillam, Solicitor, of Messrs Donnelly & Kinder Solicitors.

The respondent was represented by Mr I Randall of Peninsula Business Services Limited.

DECISION

1.	This remedy hearing followed the decision of this tribunal which was sent to the parties on 27 July 2010.  The decision to have a separate remedy hearing was made at a Case Management Discussion on 12 February 2010.

2.	The tribunal had found that the claimant had been unfairly dismissed by the respondent and was entitled to compensation.

3	The respondent now submits that the level of compensation payable to the claimant should be reduced in amount, as a result of certain misconduct of the claimant, that occurred after the claimant had been dismissed and before the hearing of the case by this tribunal.  This conduct on the part of the claimant was not fully revealed to the tribunal at the first hearing although it was touched upon in evidence.

4.	The conduct which was admitted by the claimant was that on 30 June 2009, he accosted Mr Quigley, the owner of the respondent company, in a public car park and verbally and aggressively harangued him whilst Mr Quigley sat in his car.  The claimant, who had been dismissed in the previous February, was clearly in a very agitated state and threatened to kill Mr Quigley.  The police were informed and the claimant was arrested and interviewed.  At this interview the claimant made a full confession and expressed regret for his conduct.  As a result of this Mr Quigley did not press charges and was satisfied that the claimant received a caution which will remain on his record for five years. 

5.	The tribunal was informed of this incident by Mr Randall for the respondent who argued that it was behaviour of such scandalous and unreasonable nature that it was an attempt to intimidate a witness and that as a result the tribunal should take it into account in reaching a decision on the quantum of compensation payable.  He suggested that it would be just and equitable that any loss of wages arising after the date of the incident, should be disallowed by the tribunal in its calculation.

6.	Mr Gillam for the claimant argued that as the incident occurred after the dismissal and as the dismissal had been adjudicated as unfair, no reduction of compensation should be made.

7.	The respondent, before the substantive hearing, applied to the tribunal for an Order striking out the claimant’s claim.  This application was held at a Case Management Discussion before a different Chairman.  The hearing of the respondent’s application for strike out did not proceed.  The relevant part of the Order of the tribunal 20 August 2009 stated as follows.  Mr Sheridan, who was at that time representing the claimant in his strike out application, “indicated that the request was no longer being pursued and that all issues will be dealt with in the course of the substantive hearing.”

8.	At the substantive hearing all reference to the row in the car park was redacted from the papers before the tribunal and the matter was only touched upon in evidence without the tribunal being given the full story.

9.	The parties stated to the tribunal that apart from this argument as to whether a reduction should be made in the compensation to reflect the claimant’s behaviour the amount of compensation had been agreed between the parties. 

The Legal position

10.	The tribunal was informed that there were two possible ways of examining this matter.  The first was that the claimant’s claim should be disallowed in whole or in part because of the claimant’s intimidatory conduct and threats aimed at a person who was to give evidence in the case.  This situation has been the subject of a detailed examination by the English Employment Appeals Tribunal in Force One Utilities Limited v Hatfield  [2009] IRLR 45. In that case Mr Justice Elias set down certain rules that a tribunal should follow before exercising the draconian power of striking out an application or response.  The tribunal under Rule 18 (7) (c), of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (hereinafter called “the Rules”), has the following power to:-

	“(c)  strik[e] out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious.”

	The head note to the reported case states that the tribunal must deal with three questions in reaching a decision whether to strike out in whole or in part.  First it must decide whether the conduct related to the manner of the proceedings.  Second does the conduct make it impossible to hold a fair trial.  Thirdly was there a response short of barring the wrongdoing party which would be proportionate.

11.	Leaving the matter of strike out, the tribunal was urged by the respondent to consider reducing the compensation payable to the claimant on the grounds set out in Article 157(6) of The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  That Article which sets out the method of calculation of a Compensatory award states as follows:-

	“(6) where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”

12.	In the case of Davison and Davison v Soros and Soros [1994] IRLR 264, Mr Justice Tudor Evans of the English Employment Appeal Tribunal, in dealing with a case of conduct of a claimant that occurred after the dismissal, and dealing with a decision of the House of Lords, states as follows:-

	“We do not consider that the House of Lords intended to lay down the far reaching proposition that any misconduct, even if committed after the employee had been dismissed, should be brought into the scales of assessment. In our view [Article 157(6) of the 1996 Order] is concerned with events which have existed during and not subsequent to the contract of employment.  That is the plain meaning of the language of the sub-section and the contrary construction is not supported by taking a single sentence from the speech of Viscount Dilhorne out of its context.”

13.	This view of the law is confirmed as correct by Harvey at Para 2528, which refers to the above case of Davison v Soros.  Harvey draws a distinction between misconduct of a claimant before the dismissal, even if nothing to do with the incidents that lead to the dismissal, and misconduct of the claimant after the dismissal.  The first misconduct (before the dismissal) can be taken into account by a tribunal, in deciding on compensation.  However Harvey states that post dismissal behaviour must never be taken into account.  

Decision

14.	The tribunal considered the matter in two stages.  Firstly did the tribunal have the power to reduce the compensation payable to the claimant for his unfair dismissal, as a result of the misconduct of the claimant in the incident in the car park.  The tribunal following the authorities set out above finds that it has no such power under Article 157(6) of the 1996 Order, and accordingly it holds that the compensation set out below will not be reduced as a result of that conduct.  Secondly the tribunal considered the respondent’s argument that the compensation should be reduced as a result of the attempt by the claimant to intimidate a witness before the case reached hearing.

15.	The tribunal hold that the proper time to deal with such a matter was at the pre hearing review when the respondent did have an opportunity to apply for the case against it to be struck out on that ground.  Indeed the respondent did seek such an Order in its response to the claimant’s claim.  The respondent stated after reciting the details of the incident, that “the conduct of the claimant was scandalous, vexatious or unreasonable and the claim should therefore be struck out.  In the alternative the respondent requests that the tribunal hold a  pre-hearing review on these preliminary matters.” 

16.	As a result of this application the matter came before a Chairman sitting at Case Management Discussion on 20 August 2009.  At that meeting the Chairman recorded:-

“1	The purpose of this Case Management Discussion was to consider the respondent’s request for a Pre-Hearing Review.

2	Mr Sheridan indicated that the request was no longer being pursued and all such issues will be dealt with in the course of the substantive hearing.”

17.	As the matter of the application for strike out was not pursued by the respondent the substantive case was listed.  Mr Quigley gave his evidence to the tribunal in a confident manner and appeared to be suffering no ill effects from his confrontation with the claimant in the car park.  In these circumstances the tribunal following the guidance of Mr Justice Elias in the case of Force One Utilities Ltd v Hatfield consider that a fair trial was possible and indeed took place.  This tribunal, whilst in no way condoning the actions of the claimant, hold that the respondent’s witness was not intimidated by this incident and no action should be taken to reduce the compensation payable to the claimant.

18.	The tribunal, in assessing the claimant’s future loss, bore the following matters in mind.  The claimant had been able to obtain alternative employment from 1 August 2009 and from then to the present time he has been in employment, but at a lesser wage than that paid to him by the respondent.  The tribunal have taken the present economic conditions into account and hold that the claimant should have a further three months compensation for the difference in his earnings from the employment with the respondent and his present rate of pay.

19.	The claimant received JobSeekers Allowance after his dismissal until 31 July 2009.

Schedule of Loss

A]	The Basic Award

1 year at  £350.00		      £350.00

8 years at 1.5x  £350.00			   £4,200.00

Total:				   £4,550.00

B]	Loss of Statutory Rights		      £350.00

C]	Compensatory Award

Date of dismissal to 28 October 2010 	=	    89 weeks

Avg net weekly wage   	£324.76 x 89 	=	 £28,903.64

Less earnings received 

Grafton Recruitment (August  09 to end Nov 09) 	=	   £3,756.00

Camden Group net to 2 April 10                          	=	   £3,422.00

From 2 April 10 to 22 October 10                         	=	   £7,015.00

Tesco earnings                                                     	=	   £1,161.00
                                                                            		_________

                                             Total earnings    	=	 £15,354.00

£28903.64 - £15354 gives the loss to date.		 £13,549.64

Future loss at £63 per week being difference
between new wage and wage from the respondent
for a period of 12 weeks.		      £756.00
                                                                                        __________

Total Compensation		 £19,205.64

20.	The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996  apply

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

Chairman:

Date and place of hearing:    28 October 2010, Belfast.

Date decision recorded in register and issued to parties:
         Case Ref No:    5759/09

APPLICANT:		SAMUEL McCORMACK

RESPONDENT:		NU-TRACK LIMITED			

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.

	£	
(a)  Monetary award	19,205.64	
(b)  Prescribed element	7,794.24	
(c)  Period to which (b) relates:	13 Feb 09 to 31 July 09	
(d)  Excess of (a) over (b)	11,411.40	

	The applicant 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 applicant 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 applicant 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 applicant.

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 applicant, 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 applicant and regardless of any dispute between the applicant and the Department.