INDUSTRIAL TRIBUNALS

CASE REF: 374/03

APPLICANT:	Sean Higgins

RESPONDENT:	Ideal Wood Creations Limited

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 £3,025.00, subject to the recoupment provisions which apply in this case.

Appearances:

The applicant was represented by Mr D Morris, Solicitor, of Morris & Co, Solicitors.
The respondent did not appear and was not represented.

This is a decision in summary form.

THE ISSUE

1.	The applicant’s complaint as set out in his Originating Application was “That I have been unfairly dismissed or alternatively that I have been constructively dismissed by my employer”.  There was no Notice of Appearance to this complaint.  Accordingly, the tribunal had to determine the applicant’s complaint.

THE TRIBUNAL’S FINDINGS

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

2.	The respondent was a company of limited liability engaged in the joinery business.  It had its registered office at Units 44-46 Enniskillen Business Centre, Lackaboy Industrial Estate, Tempo Road, Enniskillen, County Fermanagh, and it carried on business at Unit 1, Tempo Industrial Units, Tempo, County Fermanagh BT94 3GT.  The applicant was employed by the respondent as a joiner, commencing in that employment in February of 1997. The applicant’s remuneration was £315.00 gross and £255.00 nett per week. The applicant received his work instructions from a Mrs Townson who was apparently a director of the company, which was a small concern employing three persons only at the material time. 

3.	The applicant’s employment appears to have been uneventful until the latter part of December 2002.  On 23 December 2002, Mrs Townson told the applicant, together with the other employees, that she had no work available on the days immediately following the Christmas break, these being the 2 and 3 January 2003.  She indicated that it was a matter for the applicant whether or not he turned up for work on 2 January 2003.  On 2 January 2003 the applicant returned to work and he was instructed by Mrs Townson to clean out two workshops and to carry rubbish in the respondent’s van to a skip.  After attending to these tasks, the applicant drove the van to Mrs Townson’s home as he believed he was supposed to do and he awaited Mrs Townson’s return, as she was not there.  Having waited some time for Mrs Townson’s return, as Mrs Townson did not return, the applicant locked the van and left the keys in what he felt to be a suitable place and he went home as he had been given no indication that there was any further work to be carried out that day on behalf of the respondent.

4.	The following day, the applicant received a letter dated 2 January 2003 from the respondent signed by Mrs Townson which letter alleged that the applicant had left his place of work without permission and had not returned, and that the applicant had been given tasks to carry out but that he had not completed these.  The letter went on to state “I am very disappointed in your behaviour towards my company, and fell (sic.) the only option suitable would for you to find a new job taking (this is to take effect from 11.00 am this morning the 2/1/03)”.

5.	From this, the applicant understood that he had been summarily dismissed with effect from 2 January 2003.  It appears that the respondent continued in business and that a former colleague of the applicant, a joiner, continued in employment with the respondent.  The applicant believed that he had been replaced by another joiner.  The applicant was paid wages up until date of dismissal but he received no pay in lieu of notice.

THE TRIBUNAL’S DECISION

6.	An employee has the right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996.  In this case, the applicant complained he had been unfairly dismissed or constructively dismissed.  The tribunal finds it unnecessary to consider whether or not the applicant was constructively dismissed. The tribunal finds that the action of the respondent in dispatching the said letter dated 2 January 2003 to the applicant constitutes what amounts to a clear and unambiguous summary dismissal of the applicant.  In the absence of any Notice of Appearance on the part of the respondent, the tribunal can determine no reason for the dismissal save such a reason as has been stated by the respondent in the said letter.  That appears to relate to alleged misconduct on the applicant’s part.  However, upon the facts of this case the tribunal can discern none of the customary steps that would be taken by an employer to render a dismissal for misconduct potentially fair and reasonable.  The dismissal stands entirely devoid of any proper and fair procedure or process.  For that reason, the tribunal finds the dismissal of the applicant by the respondent to be unfair, and the actions of the respondent in dismissing the applicant in these circumstances do not fall within the band of reasonable responses of a reasonable employer.

7.	The applicant was dismissed summarily and without notice or pay in lieu thereof.  The applicant commenced employment in February of 1997 and was employed for five complete years at dismissal. He was aged 43 years.  After dismissal, the applicant claimed and received Jobseeker’s Allowance for a period of three weeks.  Immediately thereafter he became a self-employed joiner. There was no ongoing loss beyond the commencement of his period of self-employment.  The tribunal awards compensation as follows: -

BASIC AWARD

£250.00 x 6 =  £1,500.00

COMPENSATORY AWARD

£255.00 x 3 = £765.00

FURTHER AND FUTURE LOSS

Nil.  The applicant made admirable efforts to mitigate his loss consequent upon dismissal at the earliest possible date, and the loss only subsisted for three weeks.

Total basic award and compensatory award £2,265.00.

LOSS OF STATUTORY INDUSTRIAL RIGHTS

The tribunal makes an award of £250.00.

The applicant was dismissed summarily without notice or pay in lieu thereof.  There was no evidence of any contractual entitlement on the part of the respondent to dismiss with pay in lieu of notice or to any greater period of contractual notice than the statutory notice provided by Article 118 of the Employment Rights (Northern Ireland) Order 1996.  The applicant would ordinarily be entitled to a sum equivalent to 5 weeks pay in lieu of notice.  However, loss is to be calculated in accordance with Digital Equipment Co Ltd –v- Clements (No.2) [1998] IRLR 134.  As the tribunal’s compensatory award referred to above includes compensation in respect of three weeks’ loss immediately following the dismissal, that period would be included in the period of 5 weeks provided for in respect of pay in lieu of notice.  Therefore, those three weeks ought properly to be deducted, leaving a balance of two weeks. Thus the tribunal orders the respondent to pay sum of £510.00 to the applicant in respect of pay in lieu of notice.

The total of the monetary award awarded in compensation is £ 3,025.00, and the tribunal therefore Orders the respondent to pay to the applicant the sum of £3,025.00, subject to the recoupment provisions which apply in this case.

RECOUPMENT OF BENEFIT FROM AWARDS

The applicant did receive Social Security benefits to which the Employment Protection (Recoupment of Jobseeker’s and Income Support) Regulations (Northern Ireland) 1996 apply.  The following recoupment of benefit is therefore applicable in this case.  

(a)	Monetary award:     £3,025.00.
(b)	Prescribed element: £765.00.
(c)	Prescribed period 2 January 2003 – 23 January 2003.
(d)	Excess of (a) over (b) £2,260.00.

AND

The attached Recoupment Notice forms part of the decision.  Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

Chairman:
Date and place of hearing: 24 October 2003, Enniskillen.
Date decision recorded in register and issued to parties: