McKinley v MGNR Entertainment Limited [2008] NIIT 711_06IT (11 February 2008) 

THE INDUSTRIAL TRIBUNALS

CASE REFS:  711/06;
773/06;
774/06;
775/06;
	778/06;
                                                                                                                                    789/06

CLAIMANTS:		Lisa McGinley
				Shelley Gray
				David Patterson
				Conor McNally
				Kerry Plummer
				Paul Duffy

RESPONDENTS:		1.  MGNR Entertainment Limited
				2.  Redundancy Payments Branch

DECISION
The unanimous decision of the industrial tribunal is that the claims of Shelley Gray, David Patterson, Conor McNally, Kerry Plummer and Paul Duffy are dismissed.

The unanimous decision of the tribunal is that Lisa McGinley was unfairly dismissed by the first named respondent and awards her compensation in the sum of £7,624.13 and that she is entitled to 10 days holiday pay amounting to £984.92.  The total award is therefore £8,609.05
The claimant’s claim for compensation pursuant to Articles 217 and 218 of the Employment Rights (Northern Ireland) Order 1996 is dismissed.

Constitution of Tribunal:

Chairman:		Ms J Knight

Members:		Mr P Sidebottom
			Mr P Laughlin

Appearances:

CLAIMANTS:	Lisa McGinley appeared and represented herself.  
                                Shelley Gray did not appear nor was she represented.  
David Patterson did not appear nor was he represented.  
Conor McNally did not appear nor was he represented.  
Kerry Plummer did not appear nor was she represented.  
Paul Duffy did not appear nor was he represented.  

RESPONDENTS:	The first named respondent did not appear nor was it represented.  
The second named respondent was represented by Ms Kathleen Dobbin of the Redundancy Payments Branch.

1.	The claimants obtained the consent of the official receiver to proceed with these claims. The liquidator has notified the tribunal office that it did not intend to enter a response or to appear at the hearing.

2.	The tribunal was satisfied that all of the parties had been notified of the date of the hearing. There was no explanation for the non-attendance of the second, third, fourth, fifth and sixth named claimants and the first named respondent, nor was there any request for an adjournment of the hearing, therefore the tribunal decided to dispose of claim reference numbers 773/06, 774/06, 775/06, 778/06 and 789/06 in the absence of those parties. The claims concerned unpaid wages, outstanding holiday pay and notice pay and other contractual pay.  Ms Dobbin informed the tribunal that the Department had made payments to each of these claimants in respect of notice pay and arrears of pay.  However the Department had not been able to make any payment to any of the claimants in respect of holiday pay due to insufficient information and indeed Mr Duffy had not claimed holiday pay.

3.	The onus is on the claimants to prove their entitlement to these payments on a balance of probabilities.  The tribunal considered all the information in its possession but in the absence of the claimants, had insufficient information upon which to make a determination.  Therefore the tribunal decided to dismiss claims reference numbers 773/06, 774/06, 775/06, 778/06 and 789/06.  

4.	The tribunal then considered the claim of Lisa McGinley (claim reference number 711/06). At the outset of the hearing the tribunal clarified with the claimant the nature of her claims and the issues to be determined by the tribunal.  These were:-

(a)	whether the first named respondent had unfairly dismissed the claimant;

(b)	whether the claimant had any outstanding contractual holiday entitlement at the effective date of termination and if so her holiday pay entitlement;

(c)	whether the respondent had failed to comply with an obligation to consult with the claimant pursuant to Article 216 of the Employment Rights (Northern Ireland) Order 1996.

The tribunal considered the oral evidence of the claimant Lisa McGinley and documentation furnished both by Ms McGinley and Ms Dobbin.

5.	At a Pre-Hearing Review on 29 November 2006 in Belfast the Chairman (Sitting Alone) had determined that the claimant was employed by the first named respondent as Operations Manager of Café Reno, a restaurant business from 7 February 2005 until the effective date of termination on 24 March 2006 under an oral contract of employment.  She was paid her wages monthly in arrears, the gross figure £2,916.67 each month giving an agreed average take home pay of £2,134 each month.  Her average weekly net take home pay was £492.46. 

6.	The claimant was responsible for the recruitment of staff, setting up systems, paperwork and dealing with suppliers.  The first named respondent began to experience financial difficulties resulting in the non-payment of wages of staff.  Reno’s remained open until 24 March 2006, the effective date of termination of the claimant’s employment; however the company did not formally become insolvent until 15 June 2006.  The tribunal has considered the evidence of the claimant and documentation furnished by Ms Dobbin and is satisfied that 19 and not 24 people were employed by the first named respondent when Reno’s closed for business in March 2006.  Therefore the tribunal is satisfied that there was not a statutory obligation upon the first named respondent to consult and the claimant’s claim for compensation pursuant to Articles 217 and 218 of the 1996 Order is dismissed.  

7.	At the hearing the claimant produced a copy of a former colleague’s contract of employment.  The tribunal accepted that the main terms and conditions of the claimant were similar to those set out in Mr Patterson’s contract.  Therefore the tribunal determined that the claimant was contractually entitled to a minimum period of notice of termination of employment of one week and that she was contractually entitled to 25 day’s paid annual leave inclusive of statutory holidays. The holiday year ran from April to April.

8.	The tribunal inspected an employee’s record salary sheet which had been completed by the claimant on 22 March 2006 in which she claimed that she was owed two weeks outstanding holiday pay.  The tribunal considered that the claimant’s evidence with regard to her holiday entitlement had been somewhat contradictory and considered that a document which had been completed by her shortly prior to the termination of her employment by the respondent was the more reliable figure.  Therefore the tribunal determines that the tribunal is satisfied that the claimant had 10 days outstanding holiday at the effective date of termination.  The tribunal therefore awards the claimant the sum of £984.92 for unpaid holiday pay. 

9.	The first named respondent did not dispute that the claimant had been dismissed.  In these circumstances, Article 130 of the Employment Rights (Northern Ireland) Order 1996 places the onus on the employer to show that the reason for the dismissal is a fair one. The claimant in this case conceded that the reason for her dismissal was redundancy which is a potentially fair reason.  However the tribunal was not satisfied that the employer had acted reasonably in treating this as sufficient reason for dismissing the claimant with effect from 24 March 2006 given that the company continued to operate until 15th June 2006.  The tribunal considered that given the role of Operations Manager that the claimant had a reasonable expectation of continuing in her employment until the date that the first named respondent became insolvent on 15 June 2006.  The tribunal is satisfied that the claimant would have been dismissed in any event for redundancy on 15 June 2006.

10.	The Statutory Dispute Resolution procedures contained in the Employment (Northern Ireland) Order 2003 apply to this dismissal and it is  clear that the first named respondent failed to comply with the dismissal and disciplinary procedure contained in Schedule 1, part 1 of the 2003 Order.  Consequently the dismissal of the claimant does not comply with the procedural fairness requirements set out in Article 130A of the 1996 Order which is inserted by Article 23 of the 2003 Order and the dismissal is automatically unfair. 

11.	Article 154 of the 1996 Order as amended by Article 23(5) of the Employment (Northern Ireland) Order 2003 provides:

“(a)	where an employee is regarded as unfairly dismissed by virtue of Article 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)	see the amount of the award under Article 152(1A) before any reduction under Article 156(3A) or for as less than the amount of four weeks pay the industrial tribunal shall subject to paragraph 1b increase the award under Article 152(1A) to the amount of four weeks pay the tribunal had no evidence before it that the increase would result in an injustice to the employer therefore the tribunal calculates compensation as follows.

12.	Article 17 of the Employment (Northern Ireland) Order 2003 provides for a 10% increase of compensation awarded where the failure to complete the statutory procedure is wholly or mainly attributable to the employer provided again that the increase should not cause injustice. As the first named respondent did not attend at the hearing the tribunal did not have before it any evidence of injustice and decided to award the statutory increases of compensation to the claimant. The tribunal is satisfied that the claimant sought to mitigate her loss by applying for other positions she has not received any social security benefits.

13.	The tribunal calculates compensation as follows:

Basic Award

Statutory maximum £280 x 4 weeks x 1 age multiplier 	=	                      £1,120.00

Compensatory Award

Loss of earnings between the effective date of
dismissal on 24 March 2006 until 15 June 2006
which is 11 weeks, 4 days x net weekly pay
of £492.46 x 1 (age multiplier)

Totals											£5,811.03

Total amount of Basic Award + Compensatory Award				£6,931.03

Plus an adjustment pursuant to Article 17 of the 2003 
the Employment (Northern Ireland) Order 2003                                                            
£693.10.

Total compensation for the unfair dismissal is					£7,624.13

Total award including holiday pay is					£8,609.05

The recoupment provisions do not apply.

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

Chairman:

Date and place of hearing:	15 January 2008, Belfast.

Date decision recorded in register and issued to parties: