THE INDUSTRIAL TRIBUNALS

CASE REF:	545/08

CLAIMANT:			Garry Campbell

RESPONDENT:		John McSparran
				Trading as My-Com Computer Services

DECISION
The unanimous decision of the tribunal is as follows:-

(i)	the claimant was unfairly dismissed by the respondent.  It is ordered that the respondent pay to him the sum of £2,340.00 by way of compensation;

(ii)	that the respondent shall pay to the claimant the sum of £620.00, being the minimum award in respect of a failure to provide him with written particulars of his contract of employment;

(iii)	that the claimant’s claims in respect of breach of contract, unlawful deductions from wages, and failure to pay holiday pay (breach of the Working Time Regulations (Northern Ireland) 1998) be dismissed.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Ms A Hamilton
			Mr E Miller

Appearances:
The claimant was represented by Ms K Doherty, of Pyramid Employment Law Services.
The respondent, Mr McSparran, appeared in person.

1.	The claimant, Mr Campbell, by an originating claim presented to the tribunal on 4 April 2008 brought claims of unfair dismissal, breach of contract (non-payment of notice pay and non-payment of expenses), unlawful deductions from wages,     non-payment of holiday pay, and failure to provide written terms and conditions of employment.

In respect of his claim of unfair dismissal, he alleged that the respondent had failed to follow the statutory dismissal procedure.

2.	In order to determine this matter, the tribunal heard evidence from the claimant, Mr Campbell, and from the respondent, Mr McSparran.  We comment further on this evidence at Paragraph 7 below.

3. (i)	The claimant commenced work with the respondent on 1 June 2006.  He was employed as a Sales Manager, and was the sole employee of the business.  Previously he had worked in financial services, but he came to Northern Ireland to work on a new venture promoting a product for which the respondent was negotiating exclusive distribution rights.

(ii)	It is accepted by the respondent that the claimant was never provided with a statement of the main terms and conditions of his employment.

(iii)	The claimant was dismissed from his employment on 31 January 2008.  We accept the evidence of the respondent that this, not 7 February 2008, as alleged by the claimant, was the date of dismissal.  Such communication as there was between the parties between 31 January 2008 and 7 February 2008 does not disclose any ongoing business transactions, but is consistent with dealing with matters outstanding at the end of the employment relationship.

(iv)	The claimant’s employment was terminated by way of a telephone call from the respondent on 31 January 2008.  According to the claimant this call came as a surprise to him. but we have difficulty accepting this.  The writing had been on the wall for some time.  The business was in decline, no new business had been generated in the period from March – July 2007, and subsequent to that period the amount of new business was minimal.  At the time of dismissal the business had debts of £19,000.00.  It is still technically functioning with the respondent as its sole member, but the prospects seem bleak.

4. (i)	We accept that there was a genuine redundancy situation.  However, we find that the respondent did not follow the statutory dismissal procedure laid down in the Employment (Northern Ireland) Order 2003.  This failure is entirely attributable to the respondent and it follows that the claimant’s dismissal is automatically unfair.

(ii)	However, we are satisfied that had the employer followed the statutory procedure, or any other procedure, the claimant would inevitably have been dismissed.  We consider, at the most, his employment would have lasted another two weeks.

5.	We therefore assess his compensation for unfair dismissal as follows:-

(i)	Basic award

Where a claimant is unfairly dismissed in breach of the statutory dismissal procedure, there is a minimum of four weeks basic award.  This can be waived by the tribunal where it would cause injustice to the employer.  There are no such circumstances here.

The basic award is therefore £310.00 x 4		£1,240.00

(ii)	Compensatory award

(a)	The claimant’s net weekly earnings were:-

£375.00 per week

£375.00 x 2  =  £750.00				£  750.00

			(b)	Loss of statutory rights				£  250.00

			(c)	Adjustment of 10% to 				£  100.00
				compensatory award because 
				of respondent’s failure to follow
				statutory dismissal procedure

			Total compensation					£2,340.00

6.	The respondent has admitted failing to give the claimant written particulars of employment.  

We make an award of the minimum of two weeks pay:-

	£310.00 x 2								£   620.00

7.	We now deal with the claimant’s remaining claims in relation to breach of contract, unlawful deductions from wages, and non-payment of holiday pay.

There was a complete conflict of evidence between the parties on these issues, with the claimant maintaining he had not been paid what was due, and the respondent denying these allegations completely.

Neither party provided us with any documentary evidence which would have been of assistance in resolving these issues, and there were allegations and          counter-allegations relating to the fabrication of e-mails, which we could not resolve.

The claimant has not been able to satisfy us on the balance of probabilities that these sums were not paid to him.

Indeed, part of his claim relates to a period following the date on which we found he was dismissed.

We therefore dismiss these claims.

8.	The claimant did not receive any benefit to which the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.

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

Chairman:

Date and place of hearing:	25 September 2008, Belfast

Date decision recorded in register and issued to parties: