THE INDUSTRIAL TRIBUNALS

CASE REF: 2296/10	

CLAIMANT:		Antonio Jose Santos Rebelo	

RESPONDENT:       Derrymorgan Limited

DECISION 
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and awards the claimant compensation of £9025.64
The title of the proceedings was amended to state the correct title of the respondent.
Constitution of Tribunal:
Chairman:	Ms Julie Knight
Members:     Mr John Hall
                      Mr Jim Hughes
			
Appearances:

The claimant presented his own case.

The respondent did not appear and was not represented.
			
Issues

1.	The issue to be determined by the tribunal was whether the claimant was unfairly dismissed and if so, the appropriate measure of compensation.

2.	The tribunal considered the oral and documentary evidence of the claimant and allowed him further time to adduce documentary evidence as to his present employment.

Facts

3.	The claimant, Mr Rebelo, was employed by the respondent as a lorry driver from September 2008 until his dismissal without any warning on 26 July 2010. His gross weekly pay at the effective date of termination was £390 and his net weekly pay was £330. The claimant did not have written terms and conditions of employment. The respondent did not reply to the claimant’s request for reasons for his dismissal nor did it provide his P45. The claimant lodged his originating claim for unfair dismissal with the Office of the Industrial Tribunals and Fair Employment Tribunal on 22 September 2010. No response was lodged by or on behalf of the respondent with the Office of the Tribunals.

4.	At the effective date of dismissal the claimant was 39 years old and had one full year’s service prior to the effective date of termination. The claimant made a claim for Job Seekers Allowance until he obtained alternative employment on 26 August 2010. His net weekly earnings in this employment is £230.25 per week and he has had a total of £4,835.25 net earnings since the commencement of this employment. 

Conclusions

5.	In a complaint of unfair dismissal, it is for the employer to establish the reason for dismissal pursuant to Article 130(1) of the Employment Rights (Northern Ireland) Order 1996.  As no response was entered by the respondent, the tribunal considers that it has not discharged this burden. Furthermore it is clear that the respondent did not comply with the Statutory Disciplinary and Dismissal procedures and therefore the dismissal is automatically unfair pursuant to Article 130A of the 1996 Order. The basic award is therefore increased to 4 weeks’ pay, subject to the statutory maximum amount for a week’s pay which in this case is £380. 

6.	The claimant is entitled to an amount equal to two week’s pay pursuant to Article 27(3) of the Employment (Northern Ireland) Order 2003 because the respondent was in breach of its statutory obligation to provide a written statement to the claimant of his terms and conditions of employment.

7.	The tribunal therefore determines that the claimant is entitled to an award of compensation for unfair dismissal as follows:

A.	Unfair Dismissal                                                                       £8265.64*

Basic Award                                                                                                 

£380 x4 weeks                                                                                £1520.00

Compensatory Award

From 26/07/10-26/08/10
3 weeks and 4 days @£330                   £1254.00

26/08/2010 – 18/01/11
20 weeks and 2 days @ £99.75             £2034.90

Future Loss
 26 weeks @ £99.75                              £2593.50

Loss of Statutory Rights                          £250.00
                                                              £6132.40

10%Statutory Uplift 
(Failure to comply with 
Statutory Dismissal Procedure)            £613.24                         £6745.64

[*The recoupment provisions apply to the unfair dismissal award, therefore:

(a)	Total Monetary Award                                                                       £8265.64

(b)	The prescribed element                                                                    £3249.00

(c)	Dates to which prescribed element relates 26/07/10 -18/01/11

(d)	Amount by which monetary award exceeds prescribed element £5016.64]

B.	Failure to provide written terms and conditions
     £ 380 X 2 weeks pay                                                                              £760.00                     

TOTAL AWARD                                                                                        £9025.64

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

Chairman:

Date and place of hearing:    18 January 2011 Belfast

Date decision recorded in register and issued to parties: