INDUSTRIAL TRIBUNALS

CASE REF:	613/08IT

CLAIMANT:		William Edward Guiney

RESPONDENT:		Matthew McFarland

DEFAULT JUDGEMENT
 (Unfair Dismissal)

The respondent shall pay the claimant compensation in the sum of £9,245.

Constitution of Tribunal:

Chairman:		Ms Bell

Panel Members:	Mr Irwin
			Mr Magennis

Appearances:

The claimant appeared in person.

The respondent was not present and was not represented.

1.	The claimant complained in his claim to the Tribunal dated 10 April 2008 that he had been unfairly dismissed and that he had not received itemised pay statements from the respondent.

2.	The respondent has not entered a response to the proceedings within the time specified in the Industrial Tribunal Rules of Procedure.

3.	A default judgement was entered in the register and issued to the parties on 18 June 2008 upholding the claimant’s complaint of “right to receive itemised pay statement and unfair dismissal”, and providing, “any remedy to which the claimant is entitled will be determined at a hearing, notice of which will be issued shortly”.

4.	Pursuant to the default judgement, a remedies hearing was held on 5 September 2008.

5.	At the hearing the claimant confirmed that he sought by way of remedy compensation only for his unfair dismissal.

Sources of Evidence

6.	The tribunal considered the claim and oral evidence from the claimant.  The claimant in his evidence made reference to documentary proofs in his possession but which he had forgotten to bring with him to hearing.  The Tribunal ordered the claimant to produce documentary proofs to the Tribunal by 12 September 2008 and consideration was given to the further documentation received from the claimant on 9 September 2008.

Findings of Fact

7.	The claimant was employed by the respondent from 1 March 2005 to 28 February 2008.

8.	Between December 2007 and February 2008 the claimant experienced a most difficult number of months due to serious personal problems he was having with his ex-partner concerning allegations made by her to social services in relation to their two daughters and his mother’s terminal illness leading up to her death on 19 February 2008.  As a result of his personal problems the claimant required a lot of time off work, which the respondent accommodated.

9.	Following his mother’s cremation on 23 February 2008 the claimant indicated to the respondent he would return to work on Thursday 28 February 2007.

10.	On the morning of Thursday 28 February 2007 the claimant sent a text to the respondent stating that he would not be in to work as he had things to do.  The claimant received a reply that if he did not return to work that day he would not have a job.  The claimant replied to the respondent that he would be in work the next day but received a reply from the respondent telling him not to bother coming in.

11.	The claimant was dismissed with effect from 28 February 2008.

12.	The claimant wrote to the respondent on 6 March 2008 raising an unfair dismissal grievance.  The respondent replied by letter dated 1 April 2008 outlining at length how he felt that he had been left no choice and had not made the decision to dismiss the claimant lightly.

13.	The claimant earned £448.72 per week gross being £400 net during his employment with the respondent, he worked approximately 45 hours per week.

14.	The claimant was born on 1 July 1961.

15.	The claimant, on his own evidence, was “very stressed out” due to his mother’s death and the situation with his daughters and consequently his doctor advised him not to work for the first two months after his dismissal, during which time he received income support.  From May 2008 the claimant started to look for work and received job seekers allowance but as at the hearing date had not applied for any job.

Legislation

16.	Where a Tribunal makes an award of compensation for unfair dismissal the basic award and compensatory awards are calculated in accordance with Articles 153 to 156, 157, 158, 160, and 161 of the Employment Rights (Northern Ireland) Order 1996.  Article 157(1) provides that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

Remedy

17.	The tribunal makes an award of compensation for unfair dismissal as follows:-

Basic Award (Article 153)

3 full years service x 1.5 (age multiplier) 
X £310 (statutory maximum weeks pay)			£1,395

Compensatory Award (Article 157)

The tribunal is not satisfied that the loss in the period after dismissal until May 2007 during which the claimant was advised to refrain from working was in consequence of the dismissal and attributable to action taken by employer.  The tribunal finds that the claimant’s illness was in the majority as the result of personal problems with his ex-partner relating to his daughters together with his recent bereavement.  The tribunal considers it just and equitable to award compensation to the claimant for 3 weeks of the period when he refrained from work due to illness to reflect the material extent to which the tribunal considers the illness to have been caused by the dismissal itself.

Net loss of earnings from 20 February 2008 to 16 May 2008 
(Period claimant refrained from work due to illness) 3 weeks 
x £400 =								 £1,200

Net loss of earning from 16 May 2008 to 5 September 2008, 
16 week x £400 =							 £6,400

Future loss of earnings

The tribunal considers that the claimant should have been able to obtain similar paid employment by the hearing date and do not consider it just and equitable to award compensation for future loss of earnings.

Loss of Statutory Rights							   £250

Total Award									£9,245

Interest

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

	Recoupment

	Your attention is drawn to the notice below which forms part of the decision of the Tribunal.  The Employment Protection (Recoupment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.

(a)	Total monetary award £9,245.
(b)	Prescribed element £8,995.
(c)	Prescribed period 28 February 2008 – 5 September 2008.
(d)	Excess of (a) over (b)   -  £250.

Chairman:		

Date and place of hearing:		5 September 2008, Belfast

Date decision recorded and registered and issues to parties:

Case Ref No: 613/08IT

CLAIMANT:		William Edward Guiney

RESPONDENT:	Matthew McFarland

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	9,245	
(b)  Prescribed element	8,995	
(c)  Period to which (b) relates:	28 February – 5 September 2008	
(d)  Excess of (a) over (b)	250	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.