THE INDUSTRIAL TRIBUNALS

CASE REF: 4159/17

CLAIMANT:		Liam Biggs

RESPONDENT:	Martin McGivern T/A Giv-Ran Autoparts (Newry) Ltd

DECISION

The tribunal unanimously finds that: 

1.	The claimant was unfairly dismissed by the respondent;
 
2.	The respondent failed to provide to the claimant an adequate statement of the particulars of his employment;

3.	The respondent failed to pay to the claimant one week’s holiday pay;

4.	The respondent failed to pay to the claimant the appropriate amount of statutory sick pay;

5.	The respondent is ordered to pay to the claimant the sum of £4936.90

Constitution of Tribunal:

Employment Judge:	Employment Judge Browne

Panel:			Mrs M-J McReynolds
				Mr J Dunlop

Appearances:

The claimant was represented by Mr O Toner of GCS Solicitors.

The respondent appeared and represented himself.

1.	In accordance with rule 10 (2) (n) of Schedule 1 to The Industrial Tribunals (Constitution and Rules Of Procedure) Regulations (Northern Ireland) 2005, it is ordered that the Amendment of Title order made on 20 November 2017 be varied to name the respondent as ‘Martin McGivern T/A Giv-Ran Autoparts (Newry) Ltd’.

ISSUES

2.	The tribunal was required to determine if the respondent had dismissed the claimant, and, if so, whether such dismissal was for a fair reason.

3.	The tribunal was also required to determine if the respondent had failed to provide the claimant with an adequate statement of the terms and conditions of his employment.

4.	The tribunal was further required to determine if the respondent had paid to the claimant appropriate amounts of any appropriate amounts of holiday pay and sickness benefit.

EVIDENCE

5.	The tribunal considered the oral evidence from both parties, as well as written evidence and other materials.

6.	The claimant started working for the respondent in January 2016 as a van delivery driver.  He was permitted to take his van home each day and keep it over the weekend.  The claimant stated in evidence that he was permitted to use it for personal use, but the respondent refuted this, and later referred to electronic records, tracking the dates and times of the claimant’s vehicle use.  The respondent included in his evidence unsubstantiated assertions that the claimant was in effect operating an online sales business, using his work vehicle to deliver goods.

7.	The claimant stated from the outset of these proceedings that the respondent never provided him with a copy of his contract of employment; the respondent readily admitted in evidence that he did not know that he was legally obliged to provide one.

8.	The claimant had a poor attendance record, primarily for reasons of self-certified personal sickness, but also on occasions for family reasons.  These absences were often at short notice, causing difficulties for the respondent in arranging work rotas.

9.	These absences, combined with what the respondent described as poor quality work, led to him having an informal discussion with the claimant about them on 2 December 2016.  Both he and the claimant appeared to feel that this conversation was constructive.

10.	The claimant texted the respondent on 21 March 2017 to say that he would be absent from work due to self-certified illness.  The respondent replied, saying “do not come in you have no job!!”  The claimant then came in to work, but stated in evidence that he still felt very unwell.

11.	The respondent claimed that in June 2017, after absence on annual leave, the claimant allegedly told other staff members that he had not been away on holiday, but had been in London taking his HGV driver’s test, which he failed.  The claimant stated in evidence that he already had his HGV licence, so he had no need to sit it again.

12.	The respondent stated in evidence that the claimant was also reported to have said that he only returned to work for the respondent because he had failed his HGV test, and that he could afford not to work because his then partner was earning enough money.

13.	The respondent appeared to take exception to this, not least because the claimant then went on a period of sick leave, although the claimant stated in evidence that his illness was due to stress caused by the respondent blaming him upon his return for poor work, and for defects in the maintenance of his work vehicle.  The claimant stated that these had occurred while he did not have the van in his possession during his period of leave.

14.	Just after the claimant told the respondent he would be off sick for two weeks, the respondent texted him, to leave his van in to work.  The claimant stated that the first thing the respondent said was “are you staying or are you leaving”, to which the claimant replied that he would like to discuss this at a formal meeting upon his return from sick leave.

15.	The claimant also asked for his unpaid wages, which he was told were not ready.  His ex-partner Lauren Cartmill, and her mother, later requested these, but, on 23 June 2017, Lauren Cart mill was informed on the telephone by a member of the respondent’s staff that the claimant had been “paid off’.  When she was put through to the respondent, she said in evidence that the respondent told her that he did not believe that the claimant was ill, and that, while supposedly unwell, the claimant had posted photographs of himself online beside a car.  Lauren Cart mill stated that the respondent had been shouting down the phone at her; he claimed that she was the aggressor during their telephone conversation.

16.	From this conversation, especially in light of the respondent’s text to him on 21 March 2017, the claimant took it that he had been dismissed.  He stated that he later tried to phone the respondent, but his calls were never returned.

17.	The respondent stated in evidence that, because he heard nothing from the claimant in the following weeks, he presumed that he had “moved on”, and issued his P45, although the claimant stated that he never received it.  The respondent denied that he had dismissed the claimant, although he stated under cross examination that he “never got the opportunity to dismiss him”.

LAW AND CONCLUSIONS

18.	Article 130A of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order”) deals with the issue of a dismissal where the proper procedures have not been followed:

“130A.—(1)	An employee who is dismissed shall be regarded for the purposes 	of this Part as unfairly dismissed if—

(a)	one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b)	the procedure has not been completed, and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2)	Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

19.	The tribunal is satisfied that the respondent dismissed the claimant.  It was clear from the evidence that he had lost patience with him due to his absence record, and was prepared to believe and repeat insubstantial and unsubstantiated allegations against him, such as his HGV test and his use of the work vehicle after the event in order to justify his dismissal.  He had never proposed or suggested that he would go through a disciplinary process with the claimant, and in fact refused to meet him or even speak to him.

20.	It was the respondent’s own case that he did not get to the opportunity to dismiss the claimant.  Whilst this on one hand could be taken to mean that he was planning to, the tribunal considers that this is more likely to refer to the respondent’s case that he thought that the claimant had in fact left his employment, and that he was never dismissed.

21.	It was clear to the tribunal that, as such, the respondent completely failed to observe or follow even the most rudimentary process which could legally lead to a potentially fair dismissal.  As such, the dismissal was automatically unfair.  The respondent at no stage asserted that, had he gone through any form of disciplinary procedure with the claimant, he would or would probably have dismissed him.

22.	In consequence of that finding, the provisions of Article 154 (1) (A) of the 1996 Order apply:

“154.—(1)	The amount of the basic award (before any reduction under 	Article 	156) shall not be less than [F1£5,900] where the reason 	(or, if more than one, the principal reason)—

(a)	in a redundancy case, for selecting the employee for dismissal, or

(b)	otherwise, for the dismissal,

is one of those specified in Article 132(1)(a) and (b),[F2 132A(d),] 133(1), 134 or 136(1).

[F3(1A)	Where—

(a)	an employee is regarded as unfairly dismissed by virtue of Article F4 . . . 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),

(b)	an award of compensation falls to be made under Article 146(4), and

(c)	the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,

the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.”

23.	The tribunal is also satisfied from the evidence of the claimant, unchallenged by the respondent, that the respondent failed to provide the claimant with a statement of the particulars of his employment.

24.	The tribunal is further satisfied from the evidence of the claimant, unchallenged by the respondent, that the respondent failed to pay to the claimant unpaid holiday pay and sickness benefit, to which he was entitled.

REMEDY

UNFAIR DISMISSAL BASIC AWARD (Following Article 154 (1) (A) Of The 1996 Order): 

£346.15 X 4 = £1384.60.

The tribunal considered that Loss of Statutory Rights should be £250.00.

COMPENSATORY AWARD

The tribunal did not consider that the claimant provided evidence of sufficient reasonable effort to mitigate his loss.  The only evidence provided was up to the end of July 2017.  It was further noted by the tribunal that the claimant had said in evidence that he already had an HGV licence, but there was no evidence that he had sought this type of work.  The tribunal considers that the appropriate period is eight weeks, therefore:

£270 (net pay) x 8 weeks = £2160.00.

Failure to provide an adequate statement of the claimant’s terms and conditions of employment; the tribunal considers that the two-week statutory minimum is appropriate in this case, in which the respondent appeared genuinely to be unaware of his legal obligation:

£346.15 x 2 = £692.30.

Failure to pay statutory sick pay = £180 (as per ET1).

Failure to pay holiday pay = £270 (as per ET1).

Total = £4936.90

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

Employment Judge:

Date and place of hearing:	7 February 2018, Belfast.

Date decision recorded in register and issued to parties: