THE INDUSTRIAL TRIBUNALS

CASE REF:    584/10

CLAIMANT:	Steven McCurdy

RESPONDENT:	Uel Hogg t/a G A Hogg and Sons

REVIEW DECISION

The unanimous decision of the tribunal upon review is that the decision of the tribunal as promulgated on 5 November 2010 shall be deemed amended, as stated in paragraph 9 of this decision on review, and shall be read accordingly, as so amended, and in all other respects the tribunal’s said decision as promulgated is affirmed herewith.

Constitution of Tribunal:

Chairman:		Mr James V Leonard

Members:	       Mr E Grant
	       Mrs M Gregg

Appearances:

The claimant was represented by Mr Barr, Solicitor, of Ferguson & Co, Solicitors.

There was no appearance by or representation on behalf of the respondent.

REASONS

1.	This is an application for review, of the tribunal’s own motion, of a decision of the tribunal (“the decision”) promulgated on 5 November 2010.  By letter dated 17 November 2010 (“the said letter”) the tribunal wrote to the respective parties and their representatives indicating that the tribunal wished to review, of its own motion, the decision.  In the said letter, the tribunal noted that the decision recorded, at paragraph 3.12 thereof, that there was a payment made by the respondent to the claimant which included a sum in respect of redundancy pay.  The award of compensation for unfair dismissal specified a basic award made by the tribunal, details of which were set forth in paragraph 11 of the decision.  This latter provided for a basic award amounting to the sum of £528.00.  

2.	The basic award as set forth in the decision did not properly take account of the sum paid by the respondent to the claimant in respect of redundancy pay at the time of dismissal. That said sum paid by the respondent to the claimant in respect of redundancy pay ought properly to have been taken account of and set-off against the basic award of compensation specified in the decision. 

3.	The tribunal was of the view that an error has been made in the tribunal’s decision necessitating that the decision ought properly to be reviewed of the tribunal’s own motion.  The tribunal further stated in the said letter that Rule 34 (5) of the tribunal’s Rules of Procedure (“the Rules”) as set forth in the First Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, provided for review of the tribunal’s decision of the tribunal’s own motion. Under the circumstances, the ground upon which the tribunal proposed to review the decision was that ground specified in Rule 34 (3) (e), that the interests of justice required such a review. The parties were requested in the said letter to note that Rule 36 (2) (a) of the Rules specified the applicable procedure for notification of the parties to a decision in regard to the foregoing and afforded to the parties an opportunity to give reasons why there should be no review. It was requested in the said letter that if either party wished to put forward reasons why there should be no review, they were to do so by notice in writing to the tribunal within 14 days of the date of the said letter. 

4.	The tribunal did not receive from either party or the representative of either party any written objection (nor any oral objection at hearing) to the tribunal proceeding with a review of the decision of the tribunal’s own motion.  Accordingly the tribunal now proceeds to review the decision.

THE STATUTORY BASIS FOR REVIEW

5.	Dealing, firstly, with the statutory basis of review, as mentioned in paragraph 3 above, Rule 34 (5) of the Rules provides for review of the tribunal’s decision of the tribunal’s own initiative. The ground upon which the tribunal proposed to review the decision is that specified in Rule 34 (3) (e), this ground being that the interests of justice required such a review. 

6.	At hearing, the solicitor representing the claimant undertook to write to the tribunal confirming that he did not object to the tribunal reviewing the decision upon the grounds and in the manner indicated in the said letter.  The solicitor indicated that he was thus content for the tribunal to review the decision. Confirmation of that position was then confirmed to the tribunal by letter dated 9 February 2011 from Ferguson & Co, Solicitors, on behalf of the claimant.

7.	In the absence of any of objection being raised to the review of the decision of the tribunal’s own initiative, the tribunal is now free to review the decision. In doing so, the tribunal may confirm, vary or revoke the decision as is provided for by Rule 36 (3) of the Rules.  

THE TRIBUNAL’S DECISION ON REVIEW

8.	The tribunal's decision on review is to vary the decision in the manner hereinafter appearing. The tribunal determines that the basic award of compensation as set forth in the decision is not correctly stated. This error ought properly to be rectified by the tribunal amending the award of compensation as stated herein.  

9.	Accordingly, the decision shall be amended in the following respect, that is to say by deleting the introductory paragraph of the decision and also paragraphs 9 and 11 of the decision as promulgated and by substituting the following paragraphs in the amended decision as the introductory paragraph and also as paragraphs 9 and 11:- 

                                “The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. On account of the principal reason for dismissal in this matter being redundancy, the redundancy payment made by the respondent to the claimant is properly to be off-set in full against the basic award. This reduces the award of compensation to nil and thus the tribunal makes no order for compensation in the matter”.                                                       

          “9.      As the claimant was thus unfairly dismissed by the respondent, turning then to the matter of appropriate compensation, reinstatement was not sought nor would it be practicable and thus monetary compensation only applies in the case.  It is of note that the claimant was working a two-day week prior to the termination of employment.  Whilst earlier a wage equivalent to five days had been earned, the contract had been amended by mutual agreement, with reduced working time and a consequent wage earned each week.  That was so for some time prior to the termination of employment.  The tribunal does not accept that this contractual amendment was made under duress nor in anything other than a consensual fashion. The tribunal is obliged to base any calculations on the wage figure prevailing at the time of the termination of employment as that constitutes evidence of the agreed contractual term prevailing at the time. In this regard the provisions of Articles 17 and 18 of the 1996 Order are applicable to the interpretation of what constitutes a week’s pay for the purposes of computation of any award of compensation. A week’s gross pay is therefore £132.00 and nett pay is £130.33 in this case. In respect of compensation for unfair dismissal, the claimant was employed by the respondent for two complete years at the effective date of termination of employment and he was aged 28 years.  The respondent is in breach of the provisions of the 2003 Order and under Article 23 of the 2003 Order (Article 154 (1A) of the 1996 Order, as amended) the tribunal is entitled to award four weeks’ pay in regard to the basic award and the tribunal makes such an award in this case. However, as the principal reason for dismissal in this case is redundancy, the redundancy payment made by the respondent to the claimant is properly to be off-set in full against the basic award, as is mentioned below (see Taylor v John Webster Buildings Civil Engineering Ltd [1999] ICR 561). The purpose of the basic award is to compensate for the lost redundancy payment; thus if there was such a payment, as there is  in this case, it is appropriate to set that payment off against what would otherwise be awarded as the basic award. This renders the basic award at nil. In respect of the compensatory award, the tribunal as is mentioned above has experienced considerable evidential difficulties in attempting to assess any true and proper loss that might have resulted from this dismissal.  On top of that, it appears to the tribunal that had proper procedures been followed there was a very significant chance that the claimant would have been dismissed in any event. In view of these difficulties, the tribunal does not accept the claimant's representative's submission in respect of the period of loss, that amounting to a claim for some 30 weeks’ loss from the effective date of termination, less the foregoing earnings indicated in the sum of £3,052.00.  The matter of establishing proof of loss, in a credible and convincing manner by the adduction of cogent and necessarily comprehensive evidence, is a matter for the claimant.  In this respect the tribunal finds the claimant's evidence to be lacking in credibility, incomplete and generally unsatisfactory.  The tribunal cannot ground any award of compensation upon the exercise of engaging in pure speculation as to any actual loss that might have been incurred but, rather, that must be a matter of established fact based upon the evidence.” 
            “11.     The Award of Compensation

Basic Award

	4 x £132.00 = £528.00
          
           less monies paid to be claimant in respect of redundancy pay (two weeks at £330.00 per week = £660.00)

           nett balance = £nil 

Total award of the tribunal (no statutory recoupment) = £ nil

10.   Save in respect of the foregoing amendments, the decision stands as previously promulgated.  This decision, on review, shall be deemed amended as stated in paragraph 9 above and shall be read accordingly, as so amended, and in all other respects the tribunal’s decision as promulgated is affirmed herewith.

Chairman:

Date and place of hearing:  21 December 2010, Belfast.

Date decision issued to parties: