THE INDUSTRIAL TRIBUNALS 

CASE REF:	2683/04

APPLICANT:		Mervyn Stinson

RESPONDENT:		Mervyn Woods t/a Cookery Nook

DECISION
The unanimous decision of the tribunal is as follows:-

(i)	The applicant’s claim in respect of notice pay is not well founded and it is dismissed.  
(ii)	The applicant’s complaint of unfair dismissal is well founded and it is ordered that the respondent shall pay to the applicant the sum of £650.

Appearances:
There was no appearance either by or on behalf of the applicant.
The respondent was represented by Miss Margaret Anderson of Peninsula Business Services Limited.

REASONS
1.	We gave our decision at the end of the hearing and we now confirm that decision in writing.  These reasons are given in summary form.
2.	The applicant was not present and was not represented at the time and place fixed for the hearing.  The applicant had been represented by a firm of solicitors (Gus Campbell Solicitors of Armagh) until the day before the hearing.  However, in a letter dated 9 March, that firm informed the Secretary of Tribunals that, despite making extensive efforts to contact their client, he failed to respond to those attempted contacts.  Against that background, we decided to dispose of the application in the absence of the applicant.  In doing so, we considered his originating application and the notice of appearance.  No representations in writing had been presented by or on his behalf pursuant to the relevant rules of the Industrial Tribunals Rules of Procedure 2004.
3.	We received oral testimony from the respondent.  We also saw a bundle of documents which was provided by the respondent.

The complaints

4.	In these proceedings, the applicant complained of unfair dismissal.  He also makes a claim in respect of pay in lieu of notice.  

The issues

5.	On behalf of the respondent, Ms Anderson accepted that the dismissal was unfair.  (She had no option but to do so, in view of the fact that the respondent simply sent the applicant his P45 in the post, and did not carry out any disciplinary hearing prior to making the decision to dismiss).  Accordingly, we are left with two main issues.  First, is the applicant entitled to compensation in respect of the admitted failure to provide him with notice, or pay in lieu of notice?  Secondly, should the applicant’s unfair dismissal compensation be reduced to reflect any contributory conduct on his part?  

The factual context

6.	The applicant was employed by the respondent as a baker, in the respondent’s small bakery, from May 1999 until 28 August 2004, when the respondent dismissed him.  In his evidence to the tribunal, the respondent did not accept the accuracy of the assertions set out in the applicant’s originating application (under the heading, “Section 13”).

7.	The applicant was employed in the respondent’s small bakery and confectionery business.  He was employed as a baker.  Because of the nature of the business, it was very important that the respondent should receive timely notification of any absences.  During the last two years of the applicant’s employment, his attitude to work and attendance deteriorated greatly.  He accumulated an extensive record of intermittent absences.  On all occasions, he failed to inform the respondent of his absence in a timely manner.  The respondent formed the view that most of those absences were not the result of any medical unfitness.  On at least one occasion, the applicant admitted that a particular absence was the result of his being too drunk to come to work.  On 8 January 2004, the respondent gave the applicant what he described as a final written warning, in the following terms:-

“After several warnings about missing days off work over the last 20 months I have no option but to issue you with a final warning that if you take any more days off without prior agreement I will have no option but to terminate your employment with our company”.

The applicant counter-signed that warning.	Subsequently, the applicant continued to have a poor record in terms of absences, and in terms of providing timely notification of absences.  On 27 March 2004, the respondent prepared a note for the respondent in the following terms:-

“After several verbal warnings and two written warnings regarding your taking time off work without prior notice to the management we have no option but to dismiss you from our employment effective immediately”.

However, as a result of representations from the applicant, the respondent changed his mind and altered the statement, so that it constituted another final written warning, with the addition of an assertion that dismissal would take place immediately if there was any reoccurrence of the conduct which had led to the problems.  Nevertheless, in the period after March 2004, the applicant continued to have a poor record, both in terms of the number and pattern of short term intermittent absences, and in respect of timely notifications.  Accordingly, in August 2004, the respondent dismissed him without notice.

The notice pay issue

8.	At common law, an employer is entitled to dismiss an employee on the spot, without notice, for gross misconduct.  There is gross misconduct if, and only if, the employee commits a repudiatory breach of contract.  In the context of an assertion that there has been gross misconduct, the issue usually resolves around the question of whether the employee’s breach of contract was repudiatory.  (In other words, whether it was sufficiently serious to justify dismissal).  

10.	Because of the applicant’s conduct (as described above), we consider that, in the special and particular circumstances of this case, he was guilty of gross misconduct.  Accordingly, at common law, the contract of employment was terminable without notice by the respondent, by reason of that conduct.  Therefore, the provisions in respect notice which are set out in Article 118 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) do not apply in the circumstances of this case.  (See Article 118(6) of the 1996 Order).  Accordingly, the applicant had no entitlement to any notice of termination of employment, whether under Article 118 or otherwise.

Compensation for unfair dismissal

11.	An applicant who is unfairly dismissed is potentially entitled to an award of compensation, made of up a “basic award” and a “compensatory award”.

12.	A compensatory award is dependent upon proof of loss.  The applicant has not proven any loss in this case.  Therefore, he is not entitled to a compensatory award. The applicant is potentially entitled to a basic award which amounts to one week’s pay for each complete year of employment.  The tribunal is satisfied that, in this case, the appropriate amount of week’s pay is £260.  However, Article 156(2) of the 1996 Order provides that, where the tribunal considers that any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, the tribunal must reduce the basic award accordingly.  In this tribunal’s view, because of the conduct of the applicant which has been described above, it is just and equitable to reduce the basic award by 50%.  Accordingly, the applicant is entitled to a basic award of £650, which is arrived at in the following manner.  First, we have multiplied £260 by five, and arrived at a figure of £1,300.  Then we have reduced that figure by 50%, leaving a net figure of £650.

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

Chairman:

Date and place of hearing:	10 March 2005 at Belfast

Date decision recorded in register and issued to parties: