THE INDUSTRIAL TRIBUNALS

CASE REF:	688/06

CLAIMANT:             Kenneth Samuel Thomas Robb		

RESPONDENTS:     Cordiners Windows Limited (in Liquidation)		

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and awards him compensation in the sum of £2747.

Constitution of Tribunal:

Chairman:	Ms J Knight	

Panel Members:	Mr A Henry
                              	Mr J Magennis

Appearances

The claimant appeared in person and represented himself.

The respondent had not appeared nor was entitled to participate in the proceedings having failed to enter a response.

1.	The issue for the tribunal was whether the claimant had been unfairly dismissed and whether he was entitled to receive pay in lieu of notice. 

2.	The tribunal considered the originating claim and the oral and documentary evidence of the claimant and correspondence to the tribunal from KPMG Restructuring. At the hearing the claimant had not been able to confirm whether there was a voluntary or compulsory liquidation of the respondent and whether the process had completed or was ongoing. The correspondence from KPMG Restructuring confirmed that it is a Creditors’ Voluntary Liquidation which is not yet complete. The tribunal is therefore satisfied that it has jurisdiction to deal with the claimant’s claim.

3.	The tribunal therefore found the following facts to be proved on a balance of probabilities:

4.	The claimant was continuously employed by the respondent under a contract of employment as a Production Operative from 29th May 2001. His average take home pay was £205 per week and his average weekly gross pay was £278. His date of birth is 16th September 1970.

5.	An incident occurred on 3rd April 2006 in which the claimant admitted he used foul language to Mr Alan Witherow, the respondent’s Managing Director, and he refused to carry out a work instruction. The tribunal accepted the claimant’s evidence that the use of foul language was commonplace in his workplace and did not normally lead to disciplinary action. However the claimant was initially suspended on full pay and following a disciplinary meeting, received a letter dated 12th April 2006, dismissing him for “gross misconduct and severe insubordination”. The tribunal determines that the effective date of termination of his employment is 12th April 2006. The claimant lodged an appeal against his dismissal but did not receive a response from the respondent. Shortly afterwards the respondent went into liquidation.

6.	The claimant obtained higher paid employment as a security officer as from 21st May 2006. He told the tribunal that he works longer hours in his current employment, but did not provide documentary evidence.  He has not claimed income support or jobseeker’s allowance.

Conclusions:

1.	As the claimant was dismissed summarily he is not entitled to notice pay. In relation to the issue of unfair dismissal, the onus is on the respondent to show on a balance of probabilities, the reason for the dismissal either falls within Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 or that it is for some other substantial reason of a kind to justify the dismissal of the employee, and further, having established the reason; that it acted reasonably in treating it as sufficient reason for dismissing the claimant.

2.	The respondent did not enter a response nor did it send any documentation for the consideration of the tribunal. Therefore the tribunal cannot find that the respondent has discharged the burden of proof upon it and concludes that the claimant was unfairly dismissed. The tribunal did not consider it would be just and equitable to award compensation for future loss as it did not have before it the requisite documentary proof. The tribunal therefore awards compensation calculated as follows:

BASIC AWARD                                                               	 £1390

Number of years of continuous employment 
ending with effective date of termination                                  	 5

Age Multiplier (35 years)                                                         	   1

Week’s pay (Maximum £290)                     	£278

COMPENSATORY AWARD                      	 £1357

Loss of earnings between 12th April 2006 and
21st May 2006 
(Net pay £205 x 5 weeks and 2 days)                                £1107

Loss of Statutory Rights                            	£250

TOTAL COMPENSATION                               	£2747

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

Chairman:

Date and place of hearing:	21 June 2007, Belfast

Date decision recorded in register and issued to parties: