THE INDUSTRIAL TRIBUNALS

CASE REF: 929/13

CLAIMANT:		Lukasz Piotr Pasinski

RESPONDENT:	All-Tex Recyclers Limited  

DECISION
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed by the respondent.  The respondent shall pay the claimant £1,724.20 compensation.
 
Constitution of Tribunal:

Chairman:		Ms M Bell

Members:		Mr A Barron  
			Mr J Patterson  

Appearances:

The claimant was self- represented. 

The respondent was self-represented.

1.	The claimant complained in his claim that he was unfairly dismissed for gross misconduct following an allegation that he had spat at another member of staff which he refuted, that he had two witnesses to confirm this was not the case, had no verbal or written warnings and no conflict or dispute with anyone at work.  

2.	The respondent in its response resisted the claimant’s claims and asserted that it had fairly dismissed the claimant for gross misconduct under its policies and procedures; that the claimant had previous warnings although not directly related; that a review of its CCTV footage on a report by the staff member spat upon of pushing and shoving in the clocking out queue emphasized that the claimant was in a rush and the staff member was not engaging with him; it had a witness statement verifying the claimant had spat on the staff member; the claimant had been witnessed the week previously with other staff spitting in the car park and senior staff member saw the spittle on the clothing within minutes of the event.  

3.	At hearing it was confirmed that the correct name of the respondent is All-Tex Recyclers Limited and the title of the proceedings is accordingly amended from Alltex Recyclers to All-Tex Recyclers Limited. 

ISSUES ON LIABILITY

4.	In determining the question whether the claimant was unfairly dismissed by the respondent the following issues were before the tribunal:-

(i)	Was the dismissal automatically unfair for failure to follow the statutory disciplinary and dismissal procedures?

Otherwise, 

(ii)	Has the respondent shown the reason for dismissal?

(iii)	Was it for a reason relating to the conduct of the claimant?

(iv)	Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal? That is:

•	Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant, reasonable grounds upon which to sustain the belief, and at the stage the belief was formed on those grounds had the respondent carried out as much investigation into the matter as was reasonable in all the circumstances?

•	Was the misconduct in question a sufficient reason for dismissing the employee?

EVIDENCE

5.	The tribunal considered the claim, response, agreed bundles of documentation which were combined into one bundle at hearing and three copy payslips provided by the claimant relating to his new employment. Sworn oral testimony was heard from Mrs Paula McAuley general manager of the respondent company, Ms Denise McGarry an employee of the respondent and from the claimant.  
 
FINDINGS OF FACT RELEVANT TO LIABILITY

6.	The respondent is a grader of used clothing currently employing around 180 staff .The respondent company has two directors , Mr Liam Agnew and Mr John Magill, and employs Mrs McAuley as general manager, Mrs Mairead McMaster as accounts manager , and a payroll officer. Mr Hugh Burns was employed by the respondent as HR Manager at the time of the claimant’s employment .Mrs McAuley has responsibility for matters including purchasing sales, human resources, health and safety and general production. 

7.	The claimant, who is Polish and was born on 20 January 1983, was employed by the respondent as a production operative from 9 December 2010 until 20 February 2013.

8.	Prior to Christmas 2012 the claimant’s contractual hours were by agreement varied from 40 to 37 hours per week but hourly rate of pay increased from £6.19 to £6.70 per hour amounting to contractual wages payable of £247.90 gross per week being £217.22 net. In January 2013 as the result of a downturn in work  the respondent with the assistance of an independent HR consultant consulted with staff and implemented a temporary reduction in working hours expected at that time to last a couple of weeks, full hours were not however re-instated until 4 March 2013. Due to the reduced hours being worked the claimant was at his effective date of termination receiving pay of £158.00 net per week. 

9.	On commencement of his employment the claimant was issued with a copy of the respondent’s disciplinary rules and procedures in English, a translated copy of these into Polish were available for staff on the respondent’s notice board. Stage 4 B. of the respondent’s Disciplinary Procedure sets out :

	‘If an allegation of Gross Misconduct is made against an Employee, the allegation will be investigated. The Employee will be informed in writing of the allegation and will be given details of the investigation. The employee will be given the opportunity to comment on the allegation and to make representations at a disciplinary meeting. 

	If the allegation is found to be unsubstantiated- no further action will be taken- and the employee will be informed.

	If the allegation is substantiated the Employee will be dismissed without notice and without payment in lieu of notice.’

10.	The respondent’s Disciplinary Rules set out a non-exhaustive list of examples of Gross Misconduct. No specific reference is made to spitting therein. Examples given include repeated harassment/ bullying of work colleagues. 

11.	Whilst reference was made in the respondent’s response to unrelated previous warnings, contrary to the claimant’s assertion in his originating claim that he had no previous warnings, no evidence of these was adduced at hearing and the tribunal find on balance that the claimant had a clear disciplinary record.

12.	On finishing work the respondent’s staff are required to form two queues to clock out on one of its two clocking out machines which are staggered with one situated first on the right hand side and then one further along on the left hand side before the staff exit doorway.  

13.	Shortly after 1.30 pm on 19 February 2013 following staff finishing and clocking out for that day, a staff member , Ms Sarah Dornan came to Mrs McAuley upset and reported spittle on her back which she indicated she had been made aware of by another staff member Ms Denise McGarry and showed to Mrs McAuley her jacket with same. Mrs McAuley gave evidence that Ms Dornan also reported to her having felt intimidated in the clocking out queue by a male member of staff towering over her wearing a high visibility jacket by and pushing and jostling in the queue and that she was asked ‘what are you doing?’ when she had turned around .   Mrs McAuley assured Ms Dornan the matter would be investigated and that she would speak with her the next day.

14.	On the afternoon of 20 February 2013 Mr Magill , Mr Agnew and Mrs McAuley reviewed the company’s CCTV footage of staff clocking out and saw that there was pushing and shoving and identified the claimant as taking out his card and stretching over Ms Dornan to clock out before leaving. On Ms McAuley’s evidence they considered that it was evident the claimant was rushing to leave the building. Mrs McAuley instructed Mr Burns to speak to staff the following morning to investigate the matter. 

15.	On the morning of 20 February 2013 Mrs McGarry gave an oral account to Mr Burns of what she saw on 19 February 2013, she was not asked to put her account in writing or to sign a statement at that stage.

16.	On Mrs McAuley’s evidence, Mr Burns spoke with her about the matter after 12.30pm on 20 February 2013,  she stated that Mr Burns did not have time to fully investigate everything but would have had written notes with detail which would have been discussed ,no investigation notes were however adduced at hearing. The only detail given by Mrs McAuley of their conversation was  there having been a note kept that the claimant had denied spitting and had said he had reduced saliva due to medication, was asked had he notified HR as a general condition but that there were no records with HR. Mrs McAuley commented that the respondent was aware of the claimant having been back and forth for a few different medical appointments but had no record of any notification to HR of a change in medication as required of him if operating machinery. No documentary evidence or other direct oral testimony was adduced at hearing to vouch steps taken by Mr Burns to investigate the matter or report thereon. 

17.	Mrs McAuley later that afternoon spoke to Mr Magill who decided the matter warranted a disciplinary meeting. 

18.	Following Mrs McAuley’s discussion with Mr Magill which took place after 12.30 pm on the afternoon of 20 February 2013 the claimant was given a letter requiring him to attend a Disciplinary Interview/ Review  at 1.15 pm that afternoon which set out , ‘At this interview the question of disciplinary action against you, in accordance with the company’s disciplinary procedure’s will be considered with regard to:

	Spitting on another member of staff

	You are entitled, if you wish, to be accompanied by another work colleague.’

	No written details of the investigation carried out and details of witness statements were provided to the claimant. No specific mention or allegation was made of intimidation or bullying. 

19.	The claimant attended the disciplinary meeting accompanied by a fellow employee, the hearing was conducted by Mr Burns and Mrs McAuley, the respondent’s Polish interpreter was also present. No written witness statements were provided to the claimant and he was not shown any CCTV evidence. The claimant had no witness attend with him as he was unaware of the basis of the allegation made against him. No minutes of the disciplinary meeting were adduced at the hearing .The claimant was not informed until the commencement of the disciplinary meeting as to the basis for the allegation of ‘spitting on another member of staff’ referred to in the invite letter.  On Mrs McAuley’s evidence the claimant was brought in and it was highlighted to him what had happened the  day before , what Ms McGarry had stated and when  asked for his account of events,  he denied the incident and that there had been pushing in the queue.  On the claimant’s evidence he did not know prior to it what the disciplinary meeting was about and thought the allegation was that someone had been spat on the face which he considered to be impossible. When the claimant attended the meeting and was informed of the actual allegation the tribunal find credible the claimant’s evidence that he did not have time to collect his thoughts or to recollect everything and so when asked was he there or what was he doing he could not remember.  It is not clear whether a charge of intimidation was put to the claimant at any stage as well as that of spitting. On Mrs McAuley’s evidence a decision was made at that stage that they viewed the matter as gross misconduct and that as a result the claimant was being dismissed. The claimant was not notified at any stage prior to this that the conduct was potentially gross misconduct which could result in his summary dismissal. The claimant disputed at hearing whether Mrs McAuley actually left the hearing room to speak to Mr Magill who she said made the actual decision to dismiss the claimant following her relaying to him relevant evidence, in any event a decision was made on behalf of the respondent company to dismiss the claimant which the claimant was notified of at 1.30 pm. 
 
20.	Solicitors acting on behalf of the claimant wrote to the respondent on 22 February 2013 confirming the respondent’s denial of the allegation in the respondent’s letter of the 20 February that he spat on another member of staff and wished to appeal against his dismissal.

21.	The respondent in a letter dated 25 February 2013 to the claimant confirmed, ‘You attended a disciplinary hearing on Wednesday 20 February 2013 following an investigation into an incident the previous day when a female employee was subjected by yourself to a degree of intimidation in the  ‘‘clocking out’’ que [sic] shortly after 1.30 pm. You were then positively identified as spitting on the back of her jacket. We are satisfied that the witness to the incident has provided us with a completely truthful account of what happened.

The act of spitting on another employee is regarded as Gross Misconduct and as a result you have been dismissed. Your termination date was Wednesday 20 February 2013 (at 13.30 pm)….’.  The claimant was advised of his right to appeal and to be accompanied.
  
22.	The respondent wrote to the claimant on 11 March 2013 to confirm an appeal hearing would take place on 19 March 2013. 

23.	In anticipation of the appeal hearing Ms McGarry was asked to put her account into writing for the respondent which she did and from which the respondent prepared a typed statement which Ms McGarry signed on the 14 March 2013. Ms McGarry’s handwritten statement set out, ‘Going home at half 1, walking through the first set of doors: Lucas tried to push in front of Sarah, she wouldn’t let him, they pushed each other, then Lucas said ‘what are you doing’ Sarah ignored him, he stared at her for a couple of minutes, then spat on her back, I didn’t want to shout in case something else would happen, so I texted Sarah. She checked her coat to find spit on her jacket then took it to the office.
I can confirm that I saw Lucas spit on Sarah’s back at 13.30 on 19th February 2013.’

Ms McGarry’s written or typed statement was not at any stage of the appeal process provided to the claimant. 

24.	After postponement the appeal hearing eventually took place on 19 April 2013 heard by Mr Liam Agnew and Ms Mairead McMaster. The claimant attended with one witness, fellow employee Mr Sebastian Gienel.  Oral testimony from Mr Agnew or Ms McMaster was not available at the tribunal hearing or minutes of the appeal hearing adduced. On the claimant’s evidence he gave his account at the appeal hearing that when 180 employees want to go home they  all keep pushing at everyone, that he felt he was pushed at the back by other employees and because of that he pushed onto the back of the employee before him, that he was trying to keep his balance , the person in front nudged him, he asked ‘what are you doing ?’ but she did not reply and did not look at him and that he did not at that moment see spit on her jacket. The claimant’s witness, Mr Gienel gave evidence confirming that he had not seen the claimant spit. The claimant was asked for and supplied the name of his second witness as Ms Agnieszka Babuszewska who had been unable to attend the appeal hearing as she was at the time in Poland. Mr Agnew informed the claimant that he would check the CCTV evidence and where witnesses were at that moment and would get back to him in writing.

25.	By letter dated 1 May 2013 Ms McMaster wrote to the claimant to inform him that a decision had been made in relation to his appeal, ‘on disciplinary action following an incident on Tuesday 19 February 2013 with another employee.
You attended an appeal hearing on Friday 19 April 2013 where the details of the incident [were] discussed in full. Having investigated and reviewed full details of the incident it is with regret that we must uphold the original disciplinary decision of dismissal without notice due to Gross Misconduct – intimidation and spitting on another employee.’ 

Whilst the initial charge put in the disciplinary invite referred only to spitting on a staff member, on appeal the decision was upheld for intimidation and spitting.

26.	Following his dismissal the claimant made a claim for Job Seekers Allowance but subsequently since 7 March 2013 has obtained weekly employment carrying out agency work for a differing number of hours each week. At hearing the claimant produced only three payslips relating to his new employment for three weeks in June 2013 showing net weekly earnings of £275.13, £273.13 and £216.60. 

RELEVANT LAW 

27.	Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.  

28.	The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal.  The standard procedure consists of three steps.  At Step 1 an employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee and send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.  Step 2 requires a meeting, the meeting must take place before action is taken (save for suspension).  The meeting must not take place unless –

 (a)	the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b)	the employee has had a reasonable opportunity to consider his response to that information. 

Step 3 is the provision of an appeal. 

The timing and location of meetings must be reasonable.

29.	A dismissal may be regarded as automatically unfair under Article 130A (1) of the 1996 Order where one of the statutory dismissal and disciplinary procedures applies in relation to the dismissal 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 its requirements, otherwise Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.

30.	Where an industrial tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the Orders it may make by way of remedy are set out at Article 146 of the 1996 Order and include reinstatement, or re-engagement, and otherwise compensation.  How compensation is to be calculated is set out at Articles 152 to 161.

31.	Article 154(1A) of the 1996 Order provides that where an employee is regarded as unfairly dismissed by virtue of Article 130A(1) the industrial tribunal shall increase the basic award where the amount is less than four weeks’ pay to the amount of four weeks’ pay (save as provided therein at 1(B).

32.	Under Article 154(1) of the 1996 Order where an employee is regarded as unfairly dismissed there is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which includes Article 145 of the 1996 Order (unfair dismissal)] by an employee where it appears to the industrial tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.

33.	Where a dismissal is not automatically unfair Article 130(1) of the 1996 Order provides that 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, if more than one, the principle reason) for the dismissal, and

(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.

Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

34.	Under  Article 130(4) of the 1996 Order where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)	shall be determined in accordance with equity and the substantial merits of the case.

35.	It is established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee’s conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods - v - Jones [1983] ICR17, such that; 

1. 	The starting point should always be the words of Article 130(4).

2.	In applying the Article an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair.

3.	In judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt from that of the employer.

4.	In many, though not all cases, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another.

5.	The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted, if the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.

36.	In the context of a misconduct case Arnold J in British Home Stores-v-Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.   First of all, there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.   And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

	It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance, to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’.  The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion”.

37.	Harvey on Industrial Relations and Employment Law at division D1 Unfair Dismissal/Misconduct, discusses dismissals relating to the conduct of an employee at paragraphs [1351]-[1600], in particular setting out at  paragraphs:

[1353]

‘….that it will be relatively rare for a single act of misconduct to justify a dismissal.  Generally, apart from serious acts of misconduct, some sanction short of dismissal should be imposed initially....’

[1398]

‘…. the failure to adopt a specific disciplinary rule may weaken the employer's position.’ 

[1400]

‘….why specifying the rules is desirable is that the employer will be more justified in dismissing an employee summarily and without a warning where the rule explicitly states that breach of the rule will attract instant dismissal than he will in the absence of any such rule.  Effectively the rule itself acts as a substitute warning.  If there is no such clear guidance then except for clear examples of gross misconduct, a tribunal is likely to conclude that a summary dismissal or a dismissal without a warning is unfair.…’

 [1463]

‘If there is generally a dispute about whether misconduct was committed then the employer must investigate.  The employer is unlikely to be acting reasonably if his belief that the employee has committed misconduct is unsupported by any objective evidence….’

[1482]

‘The investigative process is important for three reasons in particular:

•	it enables the employer to discover the relevant facts to enable him to reach a decision as to whether or not an offence has been committed;

•	if properly conducted, it secures fairness to the employee by providing him with an opportunity to respond to the allegations made; and

•	even if misconduct is established, it provides an opportunity for any factors to be put forward which might mitigate the offence, and affect the appropriate sanction.

…. Stephenson LJ in W Weddel & Co Ltd v Tepper [1980] IRLR 96 at 101:

''… [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case, “gathered further evidence” or, in the words of Arnold J in the Burchell case, “carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.  That means that they must act reasonably in all the circumstances, and must make reasonable inquiries appropriate to the circumstances.  If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably.”’

APPLICATION OF THE LAW TO THE FACTS FOUND RELEVANT TO LIABILITY
	
38.	The tribunal is satisfied that the standard procedure of the statutory dismissal and disciplinary procedures was applicable to the claimant’s dismissal but finds that step 2 was not complied with at the failure of the respondent  . The claimant was invited  to a disciplinary meeting by a letter dated 20 February 2013 hand delivered  to him  after 12.30 pm on 20 February 2013  to take place at 1.15 pm that day and was dismissed  for gross misconduct at 1.30 pm within  fifteen minutes from when the meeting was arranged to commence. The tribunal on the evidence before it finds that the claimant was not informed until the commencement of the disciplinary meeting as to the basis for the allegation put of ‘spitting on another member of staff’ referred to in the invite letter and the tribunal do not consider that the claimant had had a reasonable opportunity to consider his response to that information before the disciplinary meeting took place as required under the statutory procedure.  

39.	The tribunal in the circumstances finds that the claimant’s dismissal was automatically unfair under Article 130A(1) of the 1996 Order the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure by the respondent to comply with its requirements. 

40.	The tribunal is also satisfied in the alternative that the claimant’s dismissal was unfair under Article 130 of the 1996 Order, the tribunal consider whilst there was a potentially fair reason of misconduct for dismissal, the procedure by which the respondent’s decision was reached in this case was outside a ‘range of reasonable responses’ of a reasonable employer and that the ‘Burchell’ test has not been met, in particular in that the respondent had not carried out as much investigation into the matter as was reasonable in all the circumstances so as to justify its state of mind at the moment of dismissal. Furthermore the tribunal do not consider that for the misconduct in question the penalty of dismissal fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.

FACTS FOUND RELEVANT TO REMEDY ONLY

41.	Having made a decision on liability the tribunal find the following facts for the determination of remedy only:

42.	The claimant wishes to be compensated only.

43.	No case was made by the respondent and the tribunal is not persuaded that had the respondent complied with the statutory procedure that the claimant would still have been dismissed.

44.	No case was made by the respondent and the tribunal is not persuaded to make any finding of contributory conduct by the claimant .

REMEDY 

45.	As the claimant’s basic award would amount to less than four weeks’ pay the tribunal increases the basic award to an amount equal to four weeks’ pay under Article 154 of the 1996 Order.  

46.	The tribunal considers that it is just and equitable in all the circumstances of this case to increase the award for unfair dismissal by 10% under Article 17 of the 2003 Order.

47.	The tribunal does not consider that there is doubt whether or not the claimant  would still have been dismissed had the respondent complied with the statutory procedure such that it would be just and equitable to reduce  compensation to reflect the chance that the employee would still have lost his employment.

48.	The tribunal accordingly orders the respondent to pay the claimant compensation as follows:-

COMPENSATION FOR UNFAIR DISMISSAL

49.	Basic Award

The tribunal orders the respondent to pay a basic award for unfair dismissal of four week’s gross pay under Article 154(1A) of the 1996 Order being: 

4	weeks X £247.90 =							£  991.60

Compensatory Award

Loss of Earnings
	
The tribunal consider it just and equitable to award the claimant compensation from his effective date of termination 20 February 2013 until commencement of agency work on 7 March 2013 at the reduced rate of pay he would have been in receipt of had he remained in employment with the respondent of £158 net per week at that time due to short time working.

 2 weeks @ £158			=				£316.00

Loss to hearing date from commencement of new employment and Future Loss

The tribunal based this on evidence of the claimant’s earnings since his effective date of termination,  do not consider that any loss has been shown to have been incurred between 7 March 2013 and the hearing date and in the circumstances do not consider it just and equitable to make an award in respect of future loss. 

Loss of statutory rights

								£350.00
Uplift under Article 17

Total compensatory award before uplift =		£666.00

10% uplift =							£   66.60

Total compensatory award 	  	 =		£732.60

RECOUPMENT 

50.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 and your attention is drawn to the attached notice:

(a)  Monetary award	£1,724.20	
(b)  Prescribed element	£316.00	
(c)  Period to which (b) relates:	20/02/ 2012 – 06/08/ 2012	
(d)  Excess of (a) over (b)	£1408.20	

CONCLUSION

51.	The tribunal finds that the claimant was automatically unfairly dismissed by the   respondent under Article 130A (1) of the 1996 Order.  The respondent shall pay the claimant the following compensation:-

BASIC AWARD						£991.60

COMPENSATORY AWARD				£732.60

TOTAL						          (£1,724.20)

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

Chairman:

Date and place of hearing:  6 August 2013, Belfast.	

Date decision recorded in register and issued to parties:                                                                      

 				Case Ref No:  929/13	

CLAIMANT:		Lukasz Piotr Pasinski

RESPONDENT:	All-Tex Recyclers Limited  

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT 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) Regulations (Northern Ireland) 2010.

	£	
(a)  Monetary award	£1724.20	
(b)  Prescribed element	£316.00	
(c)  Period to which (b) relates:	20 February 2013 – 6 August 2013 	
(d)  Excess of (a) over (b)	£1,408.20	
	
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, 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 of 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, 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 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 claimant will receive a copy of the recoupment notice and should inform the Department of 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.