THE INDUSTRIAL TRIBUNALS

Case Ref:    2247/10

Claimant: 		Robert Stephen Irvine

Respondent: 	Cabinetworks Ireland Ltd

DECISION

The tribunal unanimously finds that the claimant was unfairly dismissed by the respondent. The respondent is ordered to pay to the claimant the sum of £1,190.00 by way of basic award and £2,499.27 by way of compensatory award, making a total of £3,689.27.

Constitution of tribunal: 

Chairman: 			Mr Trevor Browne 

Members: 		           Mr Alan Barron
Mr Bobby Hanna

Appearances: 

The claimant attended and was represented by Mrs Josephine Irvine.

The respondent did not attend and was not represented.

The Issue

1.	The tribunal had to determine whether the claimant had been dismissed and, if so, whether such dismissal was fair or unfair.

Findings of Fact 

2.	The tribunal made the following findings of fact from the unchallenged evidence of the claimant at the hearing and from the documentary evidence placed before it.  The tribunal found the claimant to be an honest and reliable witness.

3.	The claimant was employed by the respondent as a cabinet maker from February 2009 until 2 July 2010.  The tribunal accepts the claimant’s version of events that the respondent was very angry with him because he was unable to work overtime on Saturday 26 June 2010, having threatened that anyone who did not would “be looking for a new job” on Monday 28 June. 

4.	The claimant did not work on 26 June, and when he attended work on Monday 28 June, the respondent was again very angry and told the claimant that he was being dismissed and that his last day at work would be Friday 2 July.  The respondent then told the claimant to go and work in a different part of the factory from where he usually worked, but the claimant felt so intimidated by the respondent’s aggression towards him that he went home as he was afraid that the respondent might assault him or verbally abuse him again.  A number of other employees did not work overtime on 26 June but were not dismissed.

5.	The claimant sought medical advice from his doctor due to the stress, whereupon his doctor provided him with a sick line for one week because of stress.  This prompted an abusive telephone call to the doctor’s surgery from the respondent two days later.  The tribunal had sight of the medical practice’s patient record which contained specific reference to that call.  Whilst reprehensible in itself, the tribunal viewed such conduct as cogent evidence in support of the claimant’s contention as to the way in which he was treated by the respondent.

6.	In his initial response to this claim, the respondent had made a number of allegations to refute the assertions made by the claimant as to the chain of events.  The tribunal found the claimant to be a compelling witness and accepts his version of events, which was not challenged at the hearing.  His account as to the level of aggression towards him by the respondent was, in the view of the tribunal, given material support by the evidence of the respondent’s telephone call to the doctor’s surgery.

7.	The claimant therefore did not return to work that week and his employment was terminated by the respondent on Friday 2 July 2010.  The tribunal therefore finds that he was dismissed, and that the relevant date was 2 July 2010.  The claimant found alternative employment in August 2010, some six weeks later.

8.	The claimant on 5 July received a letter from the respondent, purporting to state that he had been dismissed by reason of redundancy, and that he had had a number of meetings with the respondent to explore this.  The tribunal accepts the claimant’s evidence that this was a complete fabrication by the respondent. There was no redundancy situation, and the claimant had never been invited to any such meetings.

9.	The tribunal is satisfied that the respondent made no attempt to comply with his obligation under the Employment (Northern Ireland) Order 2003 to follow a dismissal procedure. 

Conclusions

10.	The tribunal is unanimously satisfied that the claimant was dismissed by the respondent. By virtue of Article 130 A of the Employment Rights (Northern Ireland) Order 1996, the dismissal is automatically unfair because the respondent failed to comply with the requirement to follow a dismissal procedure.

The Award

11.	The basic award:

The claimant is entitled to 1 week’s gross pay because he had one year’s service, but because of the breach by the respondent of the 2003 Order, this by virtue of Article 17 of that Order is automatically increased to four weeks’ pay. The basic award is therefore £1,190.00.

The compensatory award:

The compensatory award is to be determined by the tribunal as being that which is just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal insofar as the loss is attributable to the action taken by the respondent. 

In this case, the tribunal considers that the appropriate loss is 

(i)	the shortfall between the date of dismissal and the date the claimant started his new employment; and

(ii)	the shortfall between his income working for the respondent and his income in his new job, from the date of starting his new job and the date of the tribunal hearing.

The first limb therefore is 6 weeks @ £242.48 net = £1,454.88;

The second limb therefore is 18 weeks @ £25.98 net difference = £467.64.

The total of the compensatory award is therefore £1,922.52.

The 2003 Order directs that because the respondent failed to follow a dismissal procedure, the compensatory award must, in the absence of any grounds to the contrary, be uplifted by at least 10% up to a maximum of 50%. The tribunal can find no grounds which would make it inappropriate to uplift the compensatory award by 10%. The tribunal is of the opinion that the respondent’s correspondence, containing deliberate untruths, was a blatant attempt by him to cover up the fact that he had been in breach of his statutory responsibilities. The tribunal therefore concludes that his failure was not that of someone operating in ill-informed ignorance of his obligations. The tribunal therefore considers that the appropriate amount of uplift is 30%.

The compensatory award therefore is: £1,922.52 + £576.75 = £2,499.27.

The respondent therefore is ordered to pay to the claimant a total of £3,689.27.

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

Chairman:

Date and place of hearing: 11 January 2011, Belfast.

Date decision recorded in register and issued to parties: