THE INDUSTRIAL TRIBUNALS

CASE REF:  05836/09

CLAIMANT:			David Hall

RESPONDENT:		Sean Moore

DECISION
The decision of the tribunal is:-

That the claimant was unfairly dismissed and that the respondent do pay to the claimant the sum of £2370 by way of compensation.

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr M Davey
Appearances:
The claimant appeared in person. 
There was no appearance on behalf of the respondent and no response had been submitted.

REASONS

 1.	The claimant’s claim was for redundancy payment.  He also sought leave to include a claim for notice pay.  

 2.	The claimant’s evidence, which the tribunal accepted, was that he started employment with the respondent on 26 July 2004 as a plumber.  By November 2008 he was earning £350 per week net.  On 10 November 2008 the respondent informed the claimant that work was slack and that he would have to be made redundant.  On 14 November 2008 the respondent paid the claimant for the week’s work he had just completed but made no other payment to him either by way of notice or by way of redundancy.  Subsequently the claimant made telephone calls enquiring about a redundancy payment.  He also wrote to the respondent about redundancy but received no reply.  The claimant accepted that work had been slack.  

 3.	The first issue for the tribunal is whether the statutory dismissal procedures were followed.  The tribunal is satisfied they were not.  The claimant received no written statement detailing the reasons for the proposed dismissal, he was not invited to a meeting to discuss the matter and was not advised of his right of appeal following the dismissal.  Accordingly under Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) the claimant is regarded as unfairly dismissed.  Leaving that Article aside the dismissal would be unfair anyway in that there was no consultation and no adequate warning or discussion about the possibility of alternative employment.

 4.	The tribunal is satisfied that there was a real redundancy situation and that the clamant would inevitably have been dismissed even if proper procedures had been followed.  Under Article 130A(2) a dismissal which is unfair for procedural reasons (other than breaches of the statutory dismissal procedures) can be rendered fair if the employee would have been dismissed in any event under proper procedures.  This provision applies in this case and consequently the dismissal is only regarded as unfair under the automatic unfairness provision of Article 130A(1).

 5.	As the dismissal was automatically unfair the claimant is entitled to a remedy.  In the circumstances neither reinstatement nor re-engagement seems appropriate so an award is payable.  The claimant was born on 23 October 1982.  He had completed a full four years service with the respondent during all of which he was not below the age of 22 and not above the age of 41.  Accordingly he is entitled to one week’s pay for each such year of employment by way of a basic award.  The claimant’s gross weekly wage was above the maximum of £330 per week prescribed by the legislation and accordingly the claimant is entitled to £330 x  4 =  £1320.

 6.	The tribunal has found that the claimant would have been dismissed if proper procedures had been followed.  However the carrying out of the proper procedures would have taken some time.  In the tribunal’s view, a period of two weeks would have elapsed.  It follows that the claimant would have been dismissed, but two weeks later than he was.  He is entitled to compensation for that two week period.  His weekly net pay was £350 and he is therefore entitled to 2  x  £350 or £700 by way of a compensatory award.

 7.	Under Article 154 of the Order, where an employee is regarded as unfairly dismissed under Article 130A (as in this case) the minimum basic award must be four weeks pay.  That minimum has been reached in this case.  However, Article 17 of the Employment (NI) Order 2003 provides that where there is a compensatory award for failure to observe the statutory procedures it must be increased by an amount of 10% to 50% as the tribunal thinks just and equitable.  In this case it would have been clear to the employer trade was falling off and that redundancy was likely.  Despite this foreknowledge no warning was given.  No opportunity to prepare was afforded.  No real notice was given.  In these circumstances an uplift of 50% on £350 in the compensatory award is justified.  Accordingly a sum of £1050 is payable as the compensatory award.

 8.	The claimant asked for leave to claim notice pay.  However he did not observe the statutory procedures relating to the raising of such matters as a grievance prior to bringing his claim.  He could have done so but failed to do so.  Accordingly his claim is out of time and cannot now be entertained.

RECOUPMENT

 9.	No question of recoupment arises.

INTEREST

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

Chairman:

Date and place of hearing:	3 September 2009, Enniskillen.

Date decision recorded in register and issued to parties: