THE INDUSTRIAL TRIBUNALS 

CASE REF:    1912/10
1914/10

CLAIMANTS:	1.	Martin Doherty 
	2.	Sean Doherty

RESPONDENTS:	1.	Boyle Construction & Contracts Ltd (in liquidation)
		c/o The Official Receiver

	2.	Department for Employment and Learning

DECISION

The unanimous decision of the tribunal is that the claimants’ claims are upheld and the respondent is ordered to pay the claimants as set out in this decision.

Constitution of Tribunal:

Chairman:	Ms P Sheils

Members:	Mr P Sidebottom 
	Mrs T Madden

Appearances:

The claimants appeared and were represented by Ms Karen McGrath of Counsel, instructed by James McNulty & Co Solicitors.

The first named respondent did not appear and was not represented.

The second named respondent did not appear and was not represented.

ISSUES

1.	The claimants Martin Doherty and Sean Doherty lodged claims on 9 August 2010 claiming unfair dismissal, breach of contract and unauthorised deduction of wages.

2.	The first named respondent did not enter a response to these claims. 

3.	The second named respondent was joined at the proceedings on 26 January 2012.  They presented a response on 21 February indicating their intention to resist the claims on the basis they had not received any claims for redundancy or insolvency pay from the claimants.  They sought to be dismissed from the proceedings.

SOURCES OF EVIDENCE

4.	The tribunal reviewed the file and noted all relevant documentation and correspondence.

5.	The tribunal received bundles of documents in respect of both claimants from the claimants at the outset of the hearing.

WITNESSES

6.	The tribunal heard from both claimants.  On the basis of all the evidence the tribunal found the following relevant facts as agreed or proven on the balance of probabilities.  The claimants are Mr Martin Doherty whose date of birth is 11 July 1957 (age 54) and his son Sean Doherty whose date of birth is 7 December 1986 (age 25).  

7.	Both claimants were employed by the first named respondent.  Mr Martin Doherty was employed as a skilled labourer and digger driver from 6 May 2008 until his dismissal on 10 May 2010.  Mr Sean Doherty was employed as a pipelayer from 6 April 2009 until his dismissal on 10 May 2010.  

	Mr Martin Doherty stated that on 7 May he approached Mr Kieran Boyle and advised him that he and his son were owed 3 weeks money in wages.  This was not the first time the respondent had owed money to the claimants.  Mr Doherty stated that throughout the course of his employment of 2 years there were several occasions in which they had not been paid their full week’s wages, living on Mr Boyle’s promise that it  would be made up to them the following week.  

8.	On that Friday, 7 May, Mr Boyle advised Mr Martin Doherty that they would be paid the following Monday.  Mr Doherty arrived for work on Monday and asked for their wages.  At this point Mr Boyle stated that “you will get your money” however, Mr Doherty stated that he was not going to work until he had been paid.  

9.	Mr Kieran Boyle stated that his brother Mr Damien Boyle would be in that afternoon and that Mr Doherty would receive the money then.  On his arrival Mr Damien Boyle was extremely rude to both Martin and Sean Doherty and advised them in the end to “fuck away off”.  Martin Doherty sought to clarify what Mr Boyle meant by these comments and asked him if he was being sacked for asking for his wages.  At this point Mr Boyle said the claimants could take whatever meaning they liked from his comments.

10.	The claimants understood that they had been dismissed.  The claimants confirmed that they had never received any letter advising them that they had been dismissed or given any reason for their dismissal.  The claimants also stated that they never had any written contracts or any particulars of employment and that all employment relating to them and the respondent had been conducted by word of mouth.  

11.	On 21 May 2010 the claimants attended the Citizens Advice Bureau and completed a letter of grievance directed to Mr Kieran and Mr Damien Boyle in relation to unpaid wages and unpaid statutory holiday pay.  The claimants received no reply to this grievance at any stage.  

12.	The claimants subsequently lodged claims on 9 August 2010 claiming unfair dismissal, breach of contract and unauthorised deduction of wages.  The respondent did not enter a response to these claims.  

13.	Sometime subsequently the first named respondent sought and received a winding up order and on 19 December 2011 both claimants received leave to continue with proceedings against the first named respondent in this tribunal.  

THE LAW

Unfair Dismissal

14.	Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer.  Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.

15.	Article 130 states at paragraph (2) a reason falls within this paragraph if it –

	(a)	relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do, 

	(b)	relates to the conduct of the employee,

	(c)	is that the employee was redundant or,

	(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.  

16.	Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and;

(b)	shall be determined in accordance with equity and the substantial merits of the case.

17.	Article 130A of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer. 

The Tribunals Conclusions

18.	Based on the relevant facts found and the fact that these were unchallenged by the respondents at any time the Tribunal concluded that both claimants had been unfairly dismissed and that they were owed all outstanding wages as claimed.  

	The Tribunal orders the first named respondents to pay to the claimants the amounts for each as set out below:

NAME:	Martin Doherty
DOB:	11/07/1957
DATE OF DISMISSAL:	10/05/2010
AGE AT DATE OF DISMISSAL:	52 years
COMPLETED YEARS EMPLOYMENT:	2 years
GROSS PAY PER WEEK:	£500
NET PAY PER WEEK:	£350

BASIC AWARD

380 x 2 x 1.5

The claimant claims that he was unfairly dismissed under article 130A of the Employment Rights (Northern Ireland) Order 1996 and claims a basic award of 4 week’s pay pursuant to article 154 of the 1996 Order.	

[£1,140]	
		
380 x 4	£1,520	
		
TOTAL BASIC AWARD:	£1,520	

COMPENSATORY AWARD

Immediate Loss of Earnings

10/05/10 – 01/07/10

6 x 350	

£2,100	

Future Loss of Earnings

Nil	

£0	

Pension Loss

NIL	

£0	

Loss of Statutory rights	£600	

Loss of Notice pay

350 x 2	

£700	

Failure to follow disciplinary procedure:  

Resulting in loss of notice pay, statutory rights and immediate earnings 50% uplift under art 17(3) Employment (NI) Order 2003	

£1,700	

Unlawful deduction of wages	£1,160	

Failure of employer to follow grievance procedure:

50% uplift under art 17(3) Employment (NI) Order 2003 for failure to follow up grievance raised about unlawful deduction of wages	

£580	

Failure to provide written particulars

350 x 2	

£700	

TOTAL COMPENSATORY AWARD:	£7,540	

TOTAL LOSSES:	£9,060	

________________________________________________________________________

NAME:	Sean Doherty
DOB:	07/12/1986
DATE OF DISMISSAL:	10/05/2010
AGE AT DATE OF DISMISSAL:	23 years
COMPLETED YEARS EMPLOYMENT:	1 year
GROSS PAY PER WEEK:	£400
NET PAY PER WEEK:	£275

BASIC AWARD

380 x 1 x 1

The claimant claims that he was unfairly dismissed under article 130A of the Employment Rights (Northern Ireland) Order 1996 and claims a basic award of 4 week’s pay pursuant to article 154 of the 1996 Order.	

[£380]	
		
380x4	£1,520	
		
TOTAL BASIC AWARD:	£1,520	

		
COMPENSATORY AWARD

Immediate Loss of Earnings

10/05/10 – 01/07/10

6 x 275	

£1,650	
		
Future Loss of Earnings

Nil	

£0	
		
Pension Loss

NIL	

£0	
		
Loss of Statutory rights	£600	
		
Loss of Notice pay

275 x 1	

£275	
		
Failure to follow disciplinary procedure:  

Resulting in loss of notice pay, statutory rights and immediate earnings 50% uplift under art 17(3) Employment (NI) Order 2003	

£1262.50	
		
Unlawful deduction of wages	£930	
		
Failure of employer to follow grievance procedure:

50% uplift under art 17(3) Employment (NI) Order 2003 for failure to follow up grievance raised about unlawful deduction of wages	

£465	
		
Failure to provide written particulars

350 x 2	

£550	
		
TOTAL COMPENSATORY AWARD:	£5,732.50	
		
TOTAL LOSSES:	£7,252.50	

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

Chairman:

Date and place of hearing:	23 April 2012, Omagh.
Date decision recorded in register and issued to parties: