Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  6446/09

 

 

CLAIMANT:                      Samuel McCartney

 

 

RESPONDENT:                Nortel Networks UK Ltd (in administration)

 

 

 

DECISION

 

(A)     The claimant’s unfair dismissal claim is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £15,141 in respect of that dismissal.

 

(B)     The claimant has withdrawn his age discrimination claim and accordingly it is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Buggy

 

 

Appearances:

 

The claimant was represented by Mr Andrew Stephens.

 

The respondent was not represented.

 

 

REASONS

 

1.       I refer to my decision in Murdock v Nortel Networks UK Ltd (in administration) (case reference no: 6614/09, decision issued on 23 October 2014).  Below, any reference to the “Murdock Decision” is a reference to that decision. 

 

2.       This Decision should be read in conjunction with the Murdock Decision.

 

3.       This Decision should be read as though the contents of paragraphs 1-9 inclusive of the Murdock Decision were set out immediately below.

 

The breach of contract claim

 

4.       This Decision is concerned only with this claimant’s claim of unfair dismissal.  In these proceedings, this claimant also has a pending claim for breach of contract.  That is a claim relating to an alleged contractual entitlement to redundancy pay, over and above the statutory redundancy pay entitlement.  (That statutory entitlement has of course already been the subject of a successful application to the Department for Employment and Learning).  The claimant is not abandoning that contractual redundancy claim.  However, the claimant and the administrators are agreed that there is no need for an industrial tribunal adjudication in respect of that claim; instead, the claimant and the administrators expect that the matter can in due course be resolved, between them, during the course of the insolvency process.  During the course of the hearing, the claimant withdrew his age discrimination claim; accordingly, that claim is now dismissed.

 

The history of this claim

 

5.       This Decision should be read as though paragraphs 13-17 of the Murdock Decision were set out immediately below.

 

This claim

 

6.       This claimant was one of the Northern Ireland employees of Nortel who were dismissed, ostensibly on the ground of redundancy, in March 2009.  The claimant says that he was unfairly dismissed.  This is my decision in respect of that unfair dismissal claim.

 

Liability

 

7.       By email dated 14 July 2014, Ms Amanda Rowe, on behalf of the administrators, confirmed that they do not contest claims made in respect of unfair dismissal, against the respondent, by any Northern Ireland claimants.

 

8.                 Because the respondent is not contesting the unfair dismissal claim, I have jurisdiction to hear that claim as an employment judge sitting alone.

 

9.       It is clear that the respondent did not comply with the statutory dismissal procedure.  Accordingly, on that ground alone, the dismissal is unfair.

 

Compensation issues

 

10.     I refer to paragraph 22 of Murdock, which sets out the compensation issues which had to be determined in that case.  Issues relating to future loss and in relation to “grossing up” have not had to be determined in the present case.  However the other four of the issues mentioned at paragraph 22 of Murdock have also had to be addressed in the present case.   

 

The course of the proceedings

 

11.     For costs reasons, the administrators have decided not to participate in these proceedings. 

 

12.               The evidence in this case mainly consisted of the oral testimony of the claimant.  During the course of that testimony, he referred to a written schedule of loss (“the Schedule”), which sets out the compensation claimed by him.  The Schedule has provided a useful basis for assessing compensation in this case. 

 

13.     Mr Stephens has had the benefit of advice and guidance from Mr Francis Bondoumbou.  I have also received written submissions (“Submissions”) which Mr Bondoumbou drafted.  I have taken those Submissions into account in deciding this case.

 

14.     At paragraph 26 of Murdock, I refer to the judgment of an employment judge in England, sitting at Reading, in respect of various unfair dismissal claims, which were heard in 2012, and which were brought by ex-employees of Nortel who had been made redundant in Great Britain in 2009.  In arriving at my conclusions in this case, I have had regard to the statement of applicable legal principles which was set out in the Reading judgment.

 

General

 

15.     This Decision should be read as though the contents of paragraphs 28-31 of Murdock were set out immediately below. 

 

Loss

 

16.     The claimant is making no claim in respect of any period after 15 May 2010.  The claimant was entitled to 12 weeks notice of termination, but received no such notice.  The Department for Employment and Learning (“the Department”) has made a payment to the claimant in respect of the loss caused by that lack of notice.  Accordingly, for present purposes, the period which is the subject of this claim is the period beginning 12 weeks after the date of termination and ending on 15 May 2010.  In the following paragraphs, that period is referred to as “the applicable period”.

 

17.     This Decision should be read as though the contents of paragraphs 35-39 of Murdock were set out immediately below. 

 

18.     Pursuant to Article 157(1) of the Employment Rights (Northern Ireland) Order 1996 (“ERO”), the claimant is clearly entitled to recover in respect of any loss sustained by him during the applicable period, provided that any such loss has been sustained in consequence of the dismissal, and is attributable to the dismissal. 

 

19.     I am satisfied that throughout the applicable period, the claimant’s losses were all caused by, and attributable to, the dismissal.  I am not satisfied that the claimant failed to mitigate his loss at any time during the applicable period. 

 

20.     I was satisfied that, during the applicable period, the claimant would have earned £312.36 net per week, if he had continued to be employed by the respondent.  That all adds up to the sum of £14,369.  During the applicable period, the claimant earned £4,625 from post-dismissal employments, with new employers.  Accordingly, I am satisfied that the claimant’s past loss, in respect of income, amounted to £9,744.  To the latter sum, I have added £350 in respect of loss of statutory rights.  The resulting aggregate figure is £10,094. 

 

Polkey?

 

21.     This Decision should be read as though paragraphs 49-56 of Murdock were set out immediately below. 

 

22.     Because of the factual and other circumstances noted in those paragraphs of Murdock, and because of the legal principles set out in those paragraphs, I have concluded in this case that there should be no Polkey deduction from the claimant’s compensation. 

 

An Article 17 uplift?

 

23.     This Decision should be read as though the contents of paragraphs 57-65 of the Murdock Decision were set out immediately below. 

 

24.               Against the background set out at paragraphs 57-65 of the Murdock Decision, I have decided that this claimant is entitled to an uplift of 50 per cent pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.

 

25.     That uplift increases the amount of the compensatory award by £5,047.

 

26.     The aggregate of the figures specified in paragraphs 20 and 25 above (£10,094 and £5,047) is £15,141. 

 

Summary and overall conclusions

 

27.     In respect of the applicable period, I have assessed the claimant’s loss as amounting to £10,094, including the sum of £350 in respect of loss of statutory rights.  (See paragraph 20 above).

 

28.     That figure of £10,094 is not subject to any Polkey reduction. 

 

29.     That figure is, however, subject to a 50% increase pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.  (See paragraph 25 above).  That produces a figure of £15,141. 

 

Recoupment of benefit from awards

 

30.     The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision.  The prescribed element is £14,791.  The prescribed period is the period from 24 June 2009 until 15 May 2010.  The amount by which the monetary award exceeds the prescribed element is £350.

 

Interest on industrial tribunal awards

 

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

 

 

 

 

Employment Judge:      

 

Date and place of hearing:  28 October 2014, Belfast.

 

Date decision recorded in register and issued to parties: