THE INDUSTRIAL TRIBUNALS

Transcription

1 THE INDUSTRIAL TRIBUNALS CASE REF: 434/13IT CLAIMANT: Martin Sheil RESPONDENT: Stena Line Irish Sea Ferries Ltd The decision of the tribunal is as follows: DECISION 1. The claimant is entitled to an award of 37, in respect of unfair dismissal. 2. The claimant withdrew his request for re-instatement or re-engagement. 3. The tribunal awards the claimant 7, for injury to feelings due to unlawful harassment on the grounds of sexual orientation together with interest. Constitution of Tribunal: Chairman: Members: Mr I Wimpress Mrs C Stewart Mr D Atcheson Appearances: The claimant was represented by Mr Mark McEvoy, Barrister-at-Law, instructed by the Equality Commission The respondent was represented by Mr Barry Mulqueen, Barrister-at-Law, instructed by R Crawford & Co, Solicitors 1. In his claim form the claimant stated in relation to his dismissal that he wanted both compensation and re-instatement. The issue of re-instatement was not addressed by either party in evidence or written submissions. The tribunal therefore asked the respondent s counsel whether the claimant still wished to be re-instated in the event of his unfair dismissal claim being successful. The claimant expressed the clear wish to be re-instated. The respondent s representative indicated that it was his understanding that the claimant was meant to have informed the respondent about this after the Case Management Discussion on 8 May In view of the way in which this issue had arisen and the absence of the necessary evidence on this issue the tribunal having determined that the claimant was unfairly dismissed considered that it should reconvene in order to consider whether to make orders of re-instatement or re-engagement and what compensation the claimant should be awarded in respect of his unfair dismissal. 1

2 3. A Remedies Hearing was therefore convened. The tribunal received a further witness statement from the claimant and heard oral evidence from the claimant and Mr Hillis, the respondent s Port Operations Manager in Belfast. 4. Reinstatement and re-engagement are governed by Articles 147 to 151 of the Employment Rights (NI) Order Where a complaint of unfair dismissal is found to be well founded the tribunal must first decide whether to make an Order for reinstatement or re-engagement. Article 150 of the 1996 Order provides that in exercising its discretion under Article 147 to make an order for reinstatement or reengagement, the tribunal should first consider whether to make an Order for reinstatement and in doing so shall take into account:- (a) (b) (c) whether the claimant wishes to be reinstated; whether it is practicable for the employer to comply with an Order for reinstatement and; where the claimant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. 5. Both witnesses gave evidence which bore on the practicability or otherwise of the claimant being re-employed by the respondent. The claimant gave evidence that he would be reticent about returning to the same crew that he had worked with before but that he was flexible as to the role and work location. Mr Hillis gave evidence that there would be difficulties in re-instating the claimant in his previous post due to views expressed by the workforce about the claimant s alleged actions and the outcome of his unfair dismissal case. 6. Mr Hillis gave evidence that there were no current job opportunities within the respondent s Belfast operation. On the contrary the workforce had been slimmed down as a result of restructuring. As a result the claimant had not been replaced and another post had disappeared by way of voluntary redundancy. Mr Hillis also stated that the only future posts in prospect in Belfast would be in the nature of zero hours contracts. Outside Northern Ireland a number of administrative posts had become available at Birkenhead. These would involve checking either passengers or lorries. Training would be available but Mr Hillis could not say for certain that the claimant would have the necessary qualifications for these posts. 7. Mr McEvoy sensibly conceded that this was a case for re-engagement rather than re-instatement. The Tribunal asked whether the claimant would be willing to relocate to Birkenhead. We rose to allow Mr McEvoy to take instructions from the claimant. Having done so Mr McEvoy informed the Tribunal that the claimant having considered what was available no longer wished to pursue re-instatement or reengagement. Accordingly, the only issue that remained to be addressed was the issue of compensation. Compensation 8. The claimant gave evidence about his efforts to obtain fresh employment since the conclusion of the substantive hearing. The claimant said that he had continued to seek employment through recruitment agencies and attending the Jobs Centre on a weekly basis. The claimant stated that he had looked for jobs both of a similar nature to his employment with the respondent and from August/September 2013 on 2

3 a broader basis due to the lack of employment opportunities of this nature. A Jobs Sheet which the completed on each attendance at the Jobs Centre was appended to the claimant s statement together with some supporting material. These documents contained the following information: 4 October 2013 Posted application form to Haldane Fisher re position of Stores Person. Haldane Fisher subsequently wrote to the claimant on 19 November 2013 and informed him that they had completed shortlisting and unfortunately his application had not been successful. 20 October 2013 Registered at Reeds Employment Agency and handed in CV. 22 October 2013 Phoned Hastings Hotels and spoke to HR about job vacancies. 28 October 2013 Sent CV to Gerard s Fashions. 3 November 2013 Sent application form to RBAI re full-time janitor job Undated - Checked on-line and saw vacancy requested information pack. Made inquiry re Forklift Truck Licence. 18 December 2013 Visited Pyecroft Contacts & Harland & Wolf Contracts and spoke to Office Manager re potential vacancies. Advised to check again after Christmas got mobile number. 21 December 2013 Obtained application form from Job Centre and sent it in to Heinz Printers. 29 January 2014 Informal interview with Mr McFerran of Ferran Sea Services to get in contact in next three weeks possible interview. 30 January Pyecroft Contacts possible contract due in March 2014 need to re-apply. 9. The claimant also gave evidence that he looked for jobs in the Belfast Telegraph, Sunday newspapers and through friends and family. Mr Mulqueen submitted that the claimant had failed to mitigate his loss. The claimant was cross-examined closely by Mr Mulqueen in relation to his efforts to obtain employment since the substantive hearing. It is true as Mr Mulqueen pointed out that the claimant s job search did not produce much in terms of completed application forms or rejection letters. The only concrete evidence of this was a letter which set out the terms and conditions of a post at RBAI and a rejection letter from Haldane Fisher. The claimant was clearly in need of a job as he was relying on his sisters to pay the mortgage on his home and had fallen behind in repayments to his credit card company. The claimant also placed reliance on statistics produced by the Equality Commission which showed that only 16% of male applicants in the Process and Plant Machine Operators sector were likely to be successful in recruitment competitions for jobs and that the claimant was less likely again than females to be appointed. 3

4 10. The Tribunal has already determined that any compensatory award will be reduced by 20% on the basis of Polkey and by 10% due to the claimant s contributory behaviour. 11. In relation to mitigation the Tribunal was also satisfied that the claimant took all reasonable steps to find new employment up until the date of the substantive hearing which included applying for suitable jobs and registering with recruitment agencies. Having carefully considered the evidence given by the claimant on this issue at the Remedies Hearing we are satisfied that the claimant continued to pursue diverse job opportunities between the date of the substantive hearing and the Remedies Hearing. We are therefore satisfied that the claimant took all reasonable steps to find new employment throughout the relevant period. In our view the claimant s oral and documentary evidence showed commendable diligence and perseverance on his part in seeking fresh employment. 12. Allied to his submissions that the claimant had failed to mitigate his loss, Mr Mulqueen submitted that no award should be made in respect of future loss. Mr McEvoy submitted that the Tribunal should award two years future loss. The parties were also asked to agree a Schedule of Loss. The claimant s representatives submitted a Schedule of Loss to the respondent s representatives for agreement. The respondent s solicitor ed the tribunal and indicated that the respondent agreed with the majority of Schedule with the exception of the Future Loss of Earnings which the respondent submitted should go no further than six months at the very most. 13. We have given careful consideration to the respective submissions in relation to mitigation. In our view the prospects for the claimant obtaining fresh employment in the short term are not good. However, the claimant strikes us as a capable and resourceful individual who should be able to secure suitable employment in the medium term provided that he remains open to pursuing a wide range of employment opportunities. In these circumstances we consider that an award of twelve months future loss is just and equitable. 14. The claimant has been in receipt of Jobseekers Allowance from 22 December 2012 to the date of the Remedies Hearing. Award 15. The tribunal s award is based on the agreed Schedule of Loss with future loss being limited to twelve months as indicated above. Basic Award 1. Gross Weekly Pay (capped) x 14 = 6, Compensatory Award 2. (a) Loss of Earnings Lost Earnings from 12 December 2012 (Date of Dismissal) to 26/02/14 (last date of hearing) being 63 weeks x (average Net Pay per week) therefore: Loss from date of dismissal to date of hearing = 25,

5 (b) Loss of Future Earnings Lost average net earnings: for next two years being 1,784.03/ per month x 12 months. 12 months = 21, (c) Loss of Statutory Rights = (a + b + c) = 47, Less Income of:- (d) Income from jobseekers allowance from 12 December 2012 (Date of Dismissal) to date of hearing (26 February 2014) being 63 weeks paid as follows: 22/12/12 24/12/12 = /12/12 01/04/13 = /04/13 08/04/13 = /04/13 - date of hearing being per week = 3, Total Income (2d) from date of dismissal to date of hearing = 4, (a + b + c) = 47, d = 43, (e) Less 20% Polkey (a + b + c) = 47, d = 43, % ( 8,670.36) = 34, (f) Less 10% Contributory Behaviour (a + b +c) (2d) (e) = 34, % ( 3,468.15) = 31, Total Compensatory Loss: 2. = 31, Total Value of Financial Loss 1+2 = 37, Injury to Feelings Award in respect of harassment 7,

6 The claimant is entitled to interest at 8% in respect of the injury to feelings which we calculate at TOTAL AWARD 45, As the claimant was in receipt of Jobseeker s Allowance following his dismissal the Employment Protection (Recoupment of Jobseeker s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. Rule 4(3) requires that the tribunal set out:- (a) (b) (c) (d) the monetary award; the amount of the prescribed element, if any; the dates of the period to which the prescribed element is attributable; and the amount if any by which the monetary award exceeds the prescribed element. 17. For the purposes of the unfair dismissal proceedings the monetary award is 37, The prescribed element is the amount of compensation for loss of earnings up to the date of the hearing. The relevant dates are 12 December 2012 to 26 February The tribunal finds that the amount of the prescribed element is 25, The amount by which the monetary award exceeds the prescribed element in this case is 11, This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) Chairman: Date and place of hearing: 26 February 2014, Belfast. Date decision recorded in register and issued to parties 6