Brown v McCullough  (Unfair Dismissal)  (22 November 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	1690/02

APPLICANT:	John S Brown

RESPONDENT:	Derek McCullough 

DECISION
The unanimous decision of the tribunal is that the applicant was unfairly dismissed.  The tribunal orders the respondent to pay compensation to the applicant of the sum of £2,201.20.

Appearances:
The applicant appeared and represented himself.
There was no appearance by or on behalf of the respondent 

This is a decision in summary form.

THE ISSUE

1.	The applicant’s claim was that he had been unfairly dismissed by his employer, the respondent.  The tribunal accordingly had to decide whether or not the applicant had been dismissed and, if so, whether any dismissal was unfair.

THE TRIBUNAL’S FINDINGS

In consequence of the written and oral evidence adduced before it the tribunal found the following facts: - 

2.	The respondent, at the material time, was engaged in the construction business as a sole trader. The applicant was employed as a labourer by the respondent, commencing in this employment on in or around 6 April 2001.The applicant was paid a gross weekly wage of £200 and a nett wage of £178 for five days’ work each week. There were no written terms and conditions of employment. 

3.	In the week commencing Monday 24 June 2002, the applicant worked for three days. The respondent was going to Spain on vacation on Thursday 27 June and he told the applicant to call to a work colleague’s house on the evening of 26 June to collect his wages. The applicant did so but the wages were not there. The applicant then contacted the respondent by telephone that evening and he was told by the respondent to call the following morning to the same work colleague’s house to collect his wages. 

4.	On Thursday the 27 June 2002 the applicant duly called to collect his wages as instructed and he was handed by the colleague an envelope containing payment for the three days that he had worked that week and one week’s holiday pay. Also enclosed was a Form P45. The applicant had received in total three weeks’ paid annual leave in the course of his employment. The applicant then approached the respondent’s accountant and he was satisfied from what he heard that he had been dismissed. The applicant then sought advice from the Labour Relations Agency but he was unable to establish via that Agency any reason for his dismissal. He had no further dealings with the respondent thereafter, save for the institution of these proceedings. 

THE TRIBUNAL’S DECISION

5.	An employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996.  In this case, there was no Notice of Appearance by the respondent nor any other representation made to the tribunal on behalf of the respondent.  In the absence of this, the tribunal had before it no information as to the reason or reasons for any dismissal on the respondent's part, nor as to the possible fairness of any dismissal on account of any of the reasons set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996.

6.	In this case, on the evidence before it, the tribunal unanimously finds that that the dismissal of the applicant by the respondent was unfair, both upon substantive and upon procedural grounds.  In a case such as this, there is no need to refer expressly to the leading authorities upon the issues of the reasonableness of the employer's conduct nor in respect of the importance of procedural safeguards. 

7.	As the applicant did not seek from the tribunal the remedies of either reinstatement or re-engagement, the tribunal is therefore concerned with the issue of compensation only in respect of this unfair dismissal. On the basis of the evidence before it, the tribunal determines that the appropriate figure for gross pay per week is £200.00 and the appropriate figure for nett pay is £178.00.  After the dismissal, which was on 27 June 2002, the applicant did not sign on for state benefits and he remained unemployed for a period of four weeks and two days, until 29 July 2002, when he commenced working as a labourer with a different employer. The tribunal determined that, taking account of family tax credits, the applicant had suffered a continuing loss after 29 July 2002 at a rate of £36.00 per week; the wage in the new employment was less than in the respondent’s employ. However, the tribunal felt that it was nonetheless reasonable for the applicant to take such employment at a lesser wage as an interim measure to mitigate his loss, but only as an interim measure.  Taking all this into account, the tribunal felt that it was appropriate to make an award for compensation for loss up to the date of hearing, but no award for loss thereafter, as it felt that the applicant could have thereafter mitigated his loss by seeking better paid employment.   

8.	The tribunal therefore orders the respondent to pay compensation to the applicant as follows:-

            Basic Award

                       £200.00 x 1 =                                                       £200.00
         
            Compensatory Award

(i)	Loss to date of hearing -
                   	(a) (4 weeks and 2 days) 			    £783.20
		(b) £36 x 17 weeks  =                                          £612.00
                        		                                                  £1,395.20

(ii)	Unpaid holiday pay £178.00  x  2 =                    £356.00
                                                                                                  
(iii)	Loss of statutory industrial rights                        £250.00

                        TOTAL AWARD    		                          £2,201.20

No recoupment of benefits is applicable.

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

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Date and place of hearing:  22 November 2002, Belfast

Date decision recorded in register and issued to parties: