THE INDUSTRIAL TRIBUNALS

CASE REF:  7438/09	

CLAIMANT:			Darwin Evans

RESPONDENT:		Martin McCullough t/a Springsteens Diner

DECISION 
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and it is ordered that the respondent shall pay to the claimant the sum of £2,289.

Constitution of Tribunal:
Chairman:	Mr Buggy
Members:	Mr Sidebottom
Mr McKeown

Appearances:
The claimant was self-represented. 

The respondent was self-represented.

REASONS

1.	The claimant was employed in Springsteens Diner in Lisburn, which is owned by the respondent to these proceedings.

2.	The claimant was employed from 1 June 2008 until 13 October 2009.  With effect from the latter date, his employment came to an end.

3.	There is dispute between the claimant and the respondent as to the way in which the claimant’s employment came to an end.  According to the respondent, the claimant resigned.  According to the claimant, he was sacked, because of a decline in the amount of work available for staff at Springsteens Diner.
Liability

4.	In these proceedings, the claimant complains of unfair dismissal.

5.	The claimant accepts that if the respondent’s version of events is believed by the tribunal, his claim of unfair dismissal must be dismissed.  The respondent accepts that if the claimant’s version of events is believed by the tribunal, the tribunal must accordingly conclude that the claimant has been unfairly dismissed.

6.	The respondent was correct to make that concession, because of the provisions of Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).

7.	According to Article 130A(1):

“An employee who is dismissed shall be regarded for the purposes of [the unfair dismissals legislation] as unfairly dismissed if –

(a)	one of the procedures set out in Part I of Schedule I to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,

(b)	the procedure has not been completed, and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements”.

8.	It is clear that, if the claimant was dismissed, one of the procedures set out in Part I of Schedule I to the 2003 Order did apply in relation to that dismissal; that no such procedure was complied with; and that the non-completion of any such procedure was wholly attributable to failure on the part of the employer.

9.	According to the claimant’s version of events, he was sacked on 13 October 2009 in the following circumstances.  On that date, Mr McCullough took him into his office to explain that the business was not doing well and that he had to go for that reason.  Mr McCullough gave him two options.  He could either go with one week’s pay and accrued holiday pay or he could go with one week’s pay and a”£500 back-hander”, on the basis that he would “say nothing to anyone” and would sign a piece of paper to say that he was resigning.  According to the claimant, he did take the second option.  

10.	According to the respondent, the claimant simply went in on 13 October and told the respondent that he was resigning.  The respondent, according to this version of events, gave the claimant one week’s pay and £500 in cash, because the respondent believed the claimant was entitled to that amount (because of pay in lieu of notice, and because of holiday pay and wages which were due to the claimant).

11.	If the claimant’s version of events is to be believed, the claimant was sacked and immediately afterwards entered into a settlement with the respondent, whereby the claimant agreed to accept £500, in return for promising not to take a tribunal claim (and also, as a reward for pretending that he had resigned).

12.	Such a compromise is, in these circumstances, legally unenforceable, because it was not entered into with the benefit of legal advice, or pursuant to certain action taken by the Labour Relations Agency.  (In this connection, see Article 245 of the 1996 Order).

13.	We do believe the claimant’s version of events.  We disbelieve the respondent’s version of events.  In arriving at that conclusion, we have taken account of the following matters:

(1)	We compared the demeanour and manner of giving evidence of each man.  The claimant gave his evidence in a clear and forthright manner.  The respondent was vague and evasive on a number of matters.

(2)	The respondent paid the claimant in cash.  

(3)	It seems surprising that the respondent would believe that the amount owed to the claimant would add up to exactly £500, especially since the respondent now asserts that he over-estimated the amount which was due to the claimant.

(4)	The claimant was the full-time member of staff with the least service and he has not been replaced by the respondent.

(5)	According to the respondent, the claimant simply produced the resignation note, duly signed.  However, it seems to us to be inherently unlikely that the claimant would draft and sign a letter of resignation, spontaneously, and without being requested to sign a note by the respondent.

Amount of compensation

14.	When the claimant was employed by the respondent, his net weekly pay was approximately £173 per week.  Within six weeks after his dismissal, the claimant was working in a bar in Lisburn.  In that position, he was earning approximately £80 per week.  From 18 January 2010, the claimant has been in a full-time job.  In that new position, he has been earning more than he earned during his employment with the respondent.  Accordingly, he sustained no loss from 18 January 2010 onwards.

15.	The claimant’s gross weekly wage was approximately £201, (as he earned £5.73 per hour for a 35 hour week), while employed by the respondent.

16.	His loss (taking account of his period of unemployment, or under-employment post-dismissal, and of the wages which he has received from new employers since then) is approximately £1,130.

17.	We calculate that the £500 payment, which the respondent made to the claimant, was approximately £240 in excess of the claimant’s strict entitlements.  (He was entitled to £260 in respect of holiday pay).  Accordingly, in order to calculate the claimant’s actual loss, one must deduct the sum of £240 from £1,130, leaving a balance of £890.  To that must be added a sum of £100 (which is intended to compensate the claimant for the fact that, in new employment, it will take some time for him to build up the entitlement not to be unfairly dismissed and a potential entitlement to redundancy pay).  £890 + £100 = £990.

18.	The compensation payable to the claimant in respect of his unfair dismissal will consist of a basic award and a compensatory award.  (See Article 152 of the 1996 Order).

19.	Because the claimant’s dismissal was unfair by virtue of Article 130A(1) of the 1996 Order, the basic award consists of four weeks’ gross pay.  That amounts to £804.  Accordingly, the claimant is entitled to a basic award of £804.  

20.	The financial loss which the claimant has sustained by reason of his dismissal has already been calculated at £990.  That figure of £990 is potentially the subject of an uplift pursuant to Article 17 of the 2003 Order.

21.	Article 17(3) states what amounts to a general rule.  According to Article 17(3), if (in the case of unfair dismissal proceedings), it appears to an industrial tribunal that the statutory procedure was not completed  before the proceedings were begun, and that non-completion of that procedure was wholly attributable to failure by the employer to comply with the procedure’s requirements, the tribunal must, subject to paragraph (4) of Article 17, increase any award which it makes to the employee by 10% and it may, if it considers it just and equitable in all the circumstances to do so, increase it by up to 50%.

22.	Paragraph (4) of Article 17 provides for an exception to the paragraph (3) general rule.  According to paragraph (4), the duty to make an increase of at least 10% does not apply if there are exceptional circumstances which would make an increase of that percentage unjust or inequitable.

23.	We are satisfied that there are no circumstances which would make an increase unjust or inequitable in this case.

24.	We are satisfied that, in considering the percentage uplift, we are entitled to take account of the degree of moral blameworthiness of the employer in connection with the failure to follow the dismissal procedures.

25.	We have decided upon a 50% uplift because the respondent’s failure to comply with the relevant procedures was comprehensive.  He did not comply with it at all.  Secondly, his failure in that respect was entirely dishonest (it was tied up with his attempt to escape the legal consequences of termination of the claimant’s contract of employment, by persuading the claimant to pretend that he had resigned).

26.	Against that background, and for those reasons, we have decided that the figure of £990 should be uplifted by 50%, producing a compensatory award of £1,485.  

27.	Accordingly, the amount of compensation due to the claimant amounts to £2,289.

Recoupment

28.	The Recoupment Regulations apply.  Attention is drawn to the notice below, which forms part of this Decision.

Interest

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

Chairman:

Date and place of hearing:	15 March 2010, Belfast.	

Date decision recorded in register and issued to parties:

Case Ref No: 7438/09

CLAIMANT:	Darwin Evans	

RESPONDENT:	Martin McCullough t/a Springsteens Diner

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	            £2,289	
(b)  Prescribed element	            £890	
(c)  Period to which (b) relates:	13 Oct 2009 – 18 Jan 2010	
(d)  Excess of (a) over (b)	£1,399	

	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.