THE INDUSTRIAL TRIBUNALS

CASE REF:    185/13  

CLAIMANT:	Kieran Joseph Rodgers

RESPONDENTS:	1.	Colm Magennis
	2.	Term Contracts Limited

DECISION

The unanimous decision of the tribunal is as follows:-

1.	The proper respondent is the second-named respondent, Term Contracts Limited, and the first named respondent, Colm Magennis, is dismissed from the proceedings.

2.	The claimant’s respective claims of unfair dismissal, pay in lieu of notice, unlawful wages deductions, redundancy pay and breach of contract are well-founded and the tribunal Orders the second-named respondent, Term Contracts Limited, to pay to the claimant the total sum of £24,113.90 in compensation, computed as set out at the conclusion of this decision.

Constitution of Tribunal:

Chairman:	Mr J V Leonard

Members:	Mr P Archer
	Ms N Kearney

Appearances:

The claimant appeared and represented himself.

The respondents did not appear and were not represented, not having entered responses to the matter.

REASONS

THE ISSUES FOR DETERMINATION AND THE EVIDENCE

1.	By claim dated 17 January 2013 the claimant made claims against the respondents respectively named:  (1) Colm Magennis and (2) Term Contracts Limited, in regard to unfair dismissal, notice pay, arrears of pay, redundancy pay and breach of contract.  There was no response to these claims by either named respondent. Accordingly, the tribunal had to determine these complaints.

2.	The tribunal at hearing heard oral evidence from the claimant. An initial issue for determination was the proper identity of the respondent or respondents to the matter, notwithstanding the fact that no response had been entered. After having heard evidence from the claimant in that regard, the tribunal determined that the second-named respondent, Term Contracts Limited, was the employer of the claimant at the material time, and not the first-named respondent, Colm Magennis. Accordingly, the tribunal’s determination is that the proper, sole, respondent to these proceedings is the second-named respondent, Term Contracts Limited.  By consent of the claimant, the first-named respondent Colm Magennis, is dismissed from these proceedings.

3.	In consequence of the oral and documentary evidence adduced, the tribunal made the following findings of fact, upon the balance of probabilities:-

3.1	The claimant, who had been a self-employed joiner prior to this time but working with Colm Magennis who ran a building contracts business, commenced work as an employee of Colm Magennis on 1 April 2007, as a joiner.  The claimant’s employment by Colm Magennis was continuous until Colm Magennis arranged for the incorporation of the limited company, Term Contracts Limited, which was intended to take over the entire business undertaking that had been previously conducted by Colm Magennis as a sole trader.  The tribunal understands that Colm Magennis was a director of and the sole shareholder in the 
newly-incorporated limited company, Term Contracts Limited.  The transfer of the business to Term Contracts Limited became effective on 5 April 2012.  As a consequence, the claimant’s employment transferred to Term Contracts Limited upon that latter date and effective continuity from 1 April 2007 was preserved.

3.2	On or about Wednesday, 17 October 2012, Colm Magennis announced to the employees of Term Contracts Limited that they were to be laid off for a period of three weeks commencing from the following Friday, 19 October 2012.  The claimant ceased work on that Friday and was told to stay at home.  He received no pay thereafter but was awaiting notification of a return to work.  The claimant contacted Colm Magennis by telephone during the following week and he was told that he had been laid off for three weeks.  Then on 15 November 2012 the claimant was notified by telephone by Colm Magennis that the employment was being terminated forthwith.  There was no prior notice of that termination provided by the employer.  This was, in effect, a summary termination of employment without any specific warning or consultation.

3.3	At the material time, the claimant was aged 50 years and he had been continuously employed for 5 years.  The tribunal inspected wages records adduced in evidence and determined that the claimant’s gross weekly pay was £457.00 and the net weekly pay was £359.00.

3.4	After termination of this employment, the claimant, who lives with his father on the family farm, engaged in farm work over the winter period, without any remuneration, but living at home with living accommodation and other matters being provided for by his family.  The claimant did not sign on for any state benefits nor did he actively seek other employment.

3.5	When asked by the tribunal as to why he did not sign on from state benefits or seek other employment, the claimant gave evidence concerning the hard winter encountered on the family farm at the end of 2012 and the early months of 2013 (the farm activities mainly concerning sheep farming, including winter lambing) and concerning the fact that he was very busy assisting his father in these farm activities at what was indeed a difficult time on account of the very adverse weather conditions.  He indicated to the tribunal that he was intending, now that the difficult winter period was over, to look for other work but he had not yet made any applications for any other employment at the date of the tribunal hearing.

3.6	The claimant confirmed to the tribunal that he had never received any written terms and conditions of employment at any time throughout the course of this employment.

3.7	The tribunal does not need to make any other findings of fact for the purposes of reaching a decision in the case.

THE APPLICABLE LAW

4.	The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal.  The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include, amongst others, redundancy. If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award and a compensatory award.  Under Article 153 of the 1996 Order the basic award is calculated with reference to the effective date of termination of employment. For the compensatory award under Article 157 of the 1996 Order, the compensatory award is such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.

4.1	The Employment (Northern Ireland) Order 2003 ("the 2003 Order") amended the 2006 Order and included provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals and under Article 23, in relation to procedural fairness in unfair dismissal.  The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 also apply.  Notwithstanding subsequent changes to the statutory provisions, the dismissal and disciplinary proceedings remain unchanged.  Article 130A (1) of the 1996 Order (as amended by the 2003 Order) provided that an employee who is dismissed, whether or not his dismissal is unfair or regarded as unfair for any other reason, is to be regarded as being unfairly dismissed if a statutory dismissal and disciplinary procedure (as set out in the 2003 Order) applies in relation to the dismissal, the procedure has not been completed, and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.  Schedule 1 to the 2003 Order sets out statutory dispute resolution procedures.  Part 1 of Schedule 1 provides for standard and modified dismissal and disciplinary procedures.  Article 17 (3) of the 2003 Order provides for an adjustment of compensation as follows:- “ If, ..... it appears to the industrial tribunal that— the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it shall…. increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent”.  The jurisdictions to which that adjustment applies are set forth in Schedule 2 to the 2003 Order.

4.2	In regard to the claimant’s claim of unlawful wages deductions, Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that:  "An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction".  Article 45(3) of the 1996 Order provides that:  "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion".  The Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and 
non-payment of that sum, as far as the relevant statutory provision was concerned.  Article 59 of the 1996 Order provides that the definition of “wages”, in relation to a worker, means: "... any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...", subject to certain statutory exceptions which do not apply to the facts of this case.

4.3	The 1996 Order, Article 118, provides that the statutory minimum period of notice required to be given by an employer to terminate the contract of employment of an employee.  In the absence of evidence of enhanced contractual terms, this minimum statutory notice is deemed to be incorporated into any contract of employment.  It is a breach of contract on the part of any employer to fail to provide either pay in lieu of notice or the due notice on termination of employment.  A breach of contract claim may be brought under the terms of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.  This enables employees to recover sums due under contracts of employment which arise or are outstanding upon termination of any employment.

4.4	Articles 33 and 36 of the 1996 Order require an employer to provide an initial statement in writing of employment particulars and also covering any subsequent changes to particulars.  The 2003 Order also provides at Article 27, that the tribunal shall make a minimum award of either two weeks’ or, if in all the circumstances it considers it just and equitable to do so, four weeks’ gross pay, if there is a breach of the requirement to provide such a written statement of employment particulars by the employer.

THE TRIBUNAL’S DETERMINATION

5.	In this case, the tribunal notes that the employer purported to lay off the claimant from employment with effect from 19 October 2012.  This was a lay off without pay.  The employment was then summarily terminated by the employer on 15 November 2012.  There was no warning given and no prior consultation on the employer’s part concerning what was in effect a summary dismissal, irrespective of the reason for determination of the employment.  The law on all of this is 
well-settled and is not in doubt.  The general law is in accordance with the guidelines as set out in the case of Williams  v  Compair Maxam Ltd [1982] IRLR 83 EAT, which were approved by the Court of Appeal in Northern Ireland in Robinson  v  Carrickfergus Borough Council [1983] IRLR 122.  The general importance of adhering to procedural safeguards has been emphasised by the House of Lords (per Lord Bridge) in the case of Polkey  v  AE Dayton Services Ltd [1987] IRLR 503.  It is sufficient to say, without the necessity to provide much elaboration, that for whatever reason (and regrettably in the absence of any response or of any evidence from or on behalf of the respondent the tribunal has no information) there was no proper warning and no consultation and there was very evidently no endeavour made by the respondent company to explore possible 
re-deployment or any other course of action. In the existence of such a dearth of information, it is impossible for the tribunal to assess whether warning and consultation would have been utterly futile. In these matters the tribunal thus looks to issues of procedural fairness.  In this case, the dismissal of the claimant in the absence of any warning and consultation was procedurally unfair.  Further to that, no statutory dismissal procedures were invoked by the respondent in effecting the termination and the matter is accordingly also automatically unfair for that reason under the provisions of Article 130A of the 2006 Order.  It follows that the claimant was unfairly dismissed by the respondent, without notice or pay in lieu of notice.

6.	At the time of the dismissal, the claimant was owed wages amounting to four weeks.

7.	Concerning the matter of appropriate statutory uplift under Article 17 (3) of the 2003 Order, taking account of the applicable principles in that respect and taking heed of determined cases providing guidance to this tribunal (see in that regard Cex  v  Lewis [UKEAT 0013/07, Metrobus  v  Cooke [UKEAT 0490/06], Butler  v  GR Carr (Essex) Ltd [UKEAT 0128/07], Aptuit (Edinburgh)  v  Kennedy [UKEATS 0057/06], and McKindless Group  v  McLaughlin [UKEATS0010/08]), the tribunal determines that this is a matter where a decision was taken to dismiss the claimant entirely in disregard to these essential statutory procedures.  In the absence of the respondent, the tribunal is unable to explore why that is the case more fully.  The tribunal determines under such circumstances that the statutory uplift which ought to be applied is 30% and accordingly a figure of 30% uplift is applied to the computation of the award that is set out below.

8.	Articles 33 and 36 of 1996 Order require the provision of written employment particulars.  Article 27 of the 2003 Order applies to proceedings before a tribunal relating to the claims set forth in Schedule 4 to the 2003 Order.  This entitlement applies only where the tribunal finds in favour of any claimant in respect of proceedings concerning specific statutory entitlements.  In this case these specified entitlements in regard to which the tribunal has found in favour of the claimant include unfair dismissal and unauthorised wages deductions.  That being the case, where the claimant’s claim encompasses Articles 33 and 36 of 1996 Order and the respondent has been determined to be in breach of the duty to provide the required statement of employment particulars, the tribunal is required to make one of the specified awards unless there are exceptional circumstances which would make such an award unjust or inequitable.  In this case the tribunal does not determine that there are any exceptional circumstances.  The tribunal accordingly determines that it is just and equitable to make an award of two weeks’ pay under these particular circumstances.  This is included in the computation of the award set out below.

9.	The tribunal finds the claimant’s claims to be well-founded in respect of unfair dismissal, unlawful deduction of wages and breach of contract (failure to pay wages in lieu of notice) and these are successfully made out.  Any claim made for redundancy pay is subsumed into the basic award set out below.  The tribunal makes an award of compensation in favour of the claimant against the respondent, Term Contracts Ltd, and Orders that respondent to pay to the claimant as follows:-

	(a)	Basic Award

		The tribunal determines that a basic award is applicable.  The claimant’s gross pay in the employment with the respondent was £457.00 per week.  At the time the statutory maximum weekly pay threshold applicable was £430.00, so that figure is applied.  The claimant was aged 50 years at the date of termination, 15 November 2012, and he had been continuously employed for 5 years.

		£430.00  x  7.5 (applicable multiplier for age and service 5  x  1.5  =  7.5)

		=  £3,225.00.

	(b)	Compensatory Award

		The claimant’s net pay in the employment with the respondent was £359.00 per week.  The claimant did not sign on for any state benefits nor seek other employment up to the date of the tribunal hearing.  In the light of all the evidence, the tribunal determines that it was appropriate to award loss from date of termination of the contract up to the date of the tribunal hearing, 16 April 2013, and also for a further period of three months up to 16 July 2013.  The total period of the compensatory award is thus 35 weeks.  The applicable loss calculation is as follows:-

		The claimant’s net pay in the employment with the respondent was £359.00 per week.

		£359.00  x  35  =  £12,565.00.

	(c)	Award for loss of statutory Rights

		The tribunal’s award for loss of statutory rights is  =  £300.00.

	(d)	Award under Articles 33 and 36 of 1996 Order and Article 27 of the 2003 Order.

		£359.00  x  2  =  £718.00.

	(e)	Award for failure to pay wages in lieu of notice

		£359.00  x  5  =  £1,795.00.

	(f)	Unpaid Wages due

		£359.00  x  4  =  £1,436.00.

	Total Award (before statutory uplift)

	The total award is £20,039.00 (before statutory uplift).

	Unfair Dismissal  -  uplift in Compensatory Award (Article 17(3) of the 2003 Order)

	The enhancement applied to the foregoing heads (b) £12,565.00; (c) £300.00; and (d) £718.00, which total £13,583.00, on foot of the discretion afforded to the tribunal by Article 17(3) (c) of the 2003 Order is 30%  =  £4,074.90

	Total award of the tribunal  =  £24,113.90

	Recoupment of Benefit from Awards

	The claimant did not receive social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply.

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

Chairman:

Date and place of hearing:       16 April 2013, Belfast.

Date decision recorded in register and issued to parties: