THE INDUSTRIAL TRIBUNALS 

CASE REF:	303/04	

APPLICANT:	Thomas Ernest Shaw	

RESPONDENT:	William McCosh	

DECISION

The tribunal find that the applicant has been constructively dismissed and the dismissal was unfair.  The tribunal makes an award of compensation in the sum of £5670.00 payable by the respondent to the applicant.

Appearances:

The applicant was represented by Mr S Kelso, Barrister at Law, instructed by Millar Lynch Solicitors

The respondent appeared in person. 

1.	The applicant was employed as a Parts Advisor with the respondent in the Renault Dealership in Ballymena since 1988.  On 28 October 2003 the applicant told Mr McCosh that he had applied for another position and that a reference would be sought.  Without delay Mr McCosh advertised for a replacement for the applicant as an advertisement appeared in ‘the Guardian’ on 29 October 2003 seeking a Parts Advisor.

On 18 December 2003 Mr McCosh asked the applicant when he was leaving as he was starting 2 new men and would not be able to pay his wages as well.  Mr McCosh said that he had assumed that when he gave the reference, the applicant would get the job and would be leaving so he decided to replace him.

On 18 December 2003 the applicant said that he was placed in the position of having to leave and told Mr McCosh that he would leave next week.  Mr McCosh asked him to stay on until the 17 January 2004.  The applicant contacted the Labour Relations Agency who advised him to serve formal notice that his oral resignation was withdrawn and sought confirmation from Mr McCosh that he still had a job.  He did not receive a reply to this letter.

Mr McCosh accepted that he had assumed the applicant would be leaving and he had been too quick in filling his post.  As he was going on holidays after Christmas he asked the applicant to stay on until the end of January 2004.  He said the applicant had never told him the other job had not materialised, otherwise things would have been different.

2.	The tribunal accept that the applicant told Mr McCosh that he was resigning on                   18 December 2003 in response to a request from Mr McCosh as to when he was leaving,   Mr McCosh having already recruited someone to fill his post.  The applicant recognised that he had given verbal notice as referred to in his retraction letter dated 2 January 2004.  His retraction was never accepted by the respondent.

The question to be determined by the tribunal at this stage was whether the applicant resigned because of a breach of contract by the employer.

The tribunal were of the unanimous opinion that the employer had placed the applicant in a position that he could do nothing else but resign and therefore the applicant is entitled to claim that he had been constructively dismissed and that such a dismissal was unfair.

3.	The tribunal found that the applicant had resigned on 18 December 2003 but continued to work until 30 January 2004 – a period of 6 weeks.  The applicant was aged 54 at the date of termination and he had worked for the applicant for 16 years.

The applicant commenced a new job on 2 February 2004 at a higher pay therefore no future loss is claimed.

4.	Counsel on behalf of the applicant claimed that in addition to the Basic Award the applicant was entitled to compensation in respect of 12 weeks notice.

The tribunal calculate his Basic Award based on 15 years service ie 29 February 1988 to      30 January 2004.

	He was aged 54 at termination, his entitlement therefore is as follows:-

	12 weeks over 41  – 12 x 1½  = 18
	 3 weeks under 41 -   3 x 1      =  3

				TOTAL  21 WEEKS

	Basic Award 21 weeks @ £270 pw = £5670

As regards Compensation Award – it is based on compensation for his loss and as the applicant did not sustain a loss no award is made.  It is not a penal award penalising the employer for his conduct.  The right to notice does not create a debt owed by the employer to the employee resulting in a payment that ought to be made to the employee irrespective of whether there was any loss see Case:- Hardy –v- Polk (Leeds) [2004] IRLR 420.

The tribunal do not consider that the applicant suffered any loss from the date of termination until the date he started new employment, therefore no award will be made in this respect.

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

Chairman:

Date and place of hearing:	Belfast, 30 November 2004

Date decision recorded in register and issued to parties: