Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

Case Ref No: 156/04

Applicant: Melanie Hewitt

Respondent: David Rea t/a Grange Travel

DECISION

The tribunal determines the applicant was unfairly dismissed on 5 November 2003, and orders the respondent to compensate her in the amount of £3889.67. The tribunal determines the respondent has conducted these proceedings in an unreasonable manner which violates the tribunal's overriding principle. Accordingly, the tribunal further orders the respondent to pay £750.00 of the applicant's costs.

Appearances:

The applicant was represented by Mr D O'Sullivan, of Counsel, instructed by M D Loughrey,

Solicitors.

The respondent did not appear and was not represented.

Extended Reasons

Pursuant to Rule 12 (4)(d) of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004, these reasons are given in extended form.

The tribunal found the following facts:

1. By her Originating Application, presented on 15 January 2004, the applicant alleged he had been unfairly dismissed for her employment on 5 November 2003. She sought compensation. The applicant did not claim pay in lieu of notice on her Originating Application.
2. The applicant was born on 2 July 1975. The applicant was employed from 5 May 1997 to 5 November 2003 as a travel clerk in the respondent's business, which is a travel agency. On 5 November 2003, she earned £216.82 gross per week: £200.00 nett per week. By her written terms and conditions of employment, she was required to work 37 hours each week and was not entitled to a day off. Appendix 2 of the written particulars provides;

General Principles

No disciplinary action shall be taken until there has been a full investigation into any alleged

incident.

At each stage of this procedure, you shall have the right to a fair hearing with the opportunity to state your case and to be accompanied by a fellow employee if desired…

3. Moreover, by Appendix 2 of the applicant's written particulars of employment, Absenteeism is deemed minor misconduct, which would warrant a Stage 1 verbal warning to remain on the employee's personnel file for 6 months.
4. On 3 November 2003, the applicant had a clear disciplinary record. On 3 November 2003, she agreed with the respondent, David Rea, to take one half day off on 4 November 2003. Before that time, Mr Rea had been 'cool' towards the applicant. The applicant worked up until 1.30pm on 4 November 2003. Including her lunch hour, she was then (by agreement with the respondent) to be absent from work for a total of four hours up to 5.30pm. On 5 November 2003, the respondent spoke to the applicant at 9.04am, and told her that he would "have to let her go" because she had "left him in the lurch yesterday". Thus dismissed, the applicant went to the local Citizens' Advice Bureau on 5 November 2003. The CAB wrote to the respondent to advise;

Our client is concerned that an unfair dismissal…has occurred and the dismissal has not been according to procedures contained in her written terms and conditions of employment. Your clarification is therefore required to resolve this issue. Could you please clarify which section of the disciplinary rules have been applied when investigating the alleged misconduct. Your assistance is very much appreciated.

5. The respondent did not reply to this letter by letter dated 5 November 2003. The CAB wrote again by letter dated 24 November 2003, adumbrating its request for written details of the investigation carried out by the respondent in accordance with the terms and conditions of employment, reasons for dismissal, the applicant's P45 and outstanding holiday and pay in lieu of notice. The letter concluded;

…Unless I hear from you within 7 days from the date of this letter papers will simply be lodged in the Industrial Tribunal for adjudication. Use will be made of this correspondence to fix you with the cost of any such application.

6. The respondent replied by letter dated 28 November 2003, claiming that there was no such agreement to take the afternoon off on 4 November 2003, and alleging that the applicant was telling lies and had poor customer skills, had told lies before and was unpopular with other staff. The respondent failed to answer the applicant's request for details of how he had investigated the allegations against the applicant. However, because there is absolutely no evidence of such unsatisfactory conduct or lack of agreement before it, the tribunal finds the applicant had a completely clear disciplinary record, and was at all times a conscientious and reliable employee. There is no evidence of the applicant's unpopularity with other staff, or of her ever telling the respondent lies. She was always a trustworthy employee. Indeed, this finding is based also on a reference from the respondent's cousin, Stephen Rea, who was the applicant's employer from until 2003, when the business was taken over by the respondent. In this reference, Mr Stephen Rea described the applicant was "a truly excellent – indeed model – employee".
7. The applicant was unemployed from 5 November until 15 December 2003, when she was re-employed as a travel consultant with Travel Care, earning £10.950.00 gross per annum: £183.25 nett per week. Therefore, she has an ongoing nett loss per week of £16.75 from 15 December 2004. The applicant will be required to stay in Travel Care for a period of two years before she is likely to be promoted. This is because Travel Care has a different computer system to that of the respondent, and it will be two years before the applicant is sufficiently competent on this electronic system to be eligible for promotion.
8. The applicant claimed Job Seekers' Allowance from 6 November 2003 – 15 December 2003 (5 weeks).

The Decision of the tribunal:

9. Having considered the Originating Application, all the evidence before it (oral and documentary) and O'Sullivan's submissions, the tribunal unanimously determines as follows;

(a) The applicant was employed from 5 May 1997 to 5 November 2003, when she was summarily dismissed for what could, at most, have amounted to a minor misconduct offence. The applicant had a clear disciplinary record on 5 November 2003, and the summary dismissal violated all the principles set forth in the applicant's written particulars of employment insofar as she was not afforded any investigation into any alleged misconduct, any hearing and was not given the opportunity to be accompanied by a work colleague. Unhesitatingly, the tribunal determines this dismissal was unfair and resulted in the dismissal of an exemplary employee. The dismissal was unfair contrary to Article 126 of the Employment Rights (NI) Order 1996 ["the 1996 Order"]. We were not at all convinced by the contents of the respondent's letter of 28 November 2003, and readily prefer the applicant's direct evidence and Mr Stephen's Rea's (uncontested) letter of reference. The respondent has not satisfied the provisions of Article 130(2)(b) of the 1996 Order;

(b) Pursuant to Article 153(2)(b) of the 1996 Order, when she was unfairly dismissed on 5 November 2003, the applicant was aged 28, and had worked for the respondent for a total of six years;

(c) The applicant was re-employed on 15 December 2003, after five and a half week's unemployment, during which she received £57.56 per week Job Seeker's Allowance. Therefore, for those five and a half weeks, she had a nett weekly loss of income of £150.00. From 15 December 2003 to date of hearing (39 weeks) the applicant has a nett weekly ongoing loss of earning of £16.75 per week.

(d) The tribunal determines the applicant did not contribute to her dismissal, pursuant to Article 156(2) and Article 157(6) of the 1996 Order;

(e) The tribunal determines that the applicant has not failed to mitigate her loss, pursuant to Article 157(4) of the 1996 Order;

(f) Pursuant to Article 157(1) of the 1996 Order, and considering the finding that it will be two years before the applicant is likely to be promoted, the tribunal considers it just and equitable to allow 26 week's future loss, and £400 for loss of statutory rights;

(g) Pursuant to Articles 156-157 of the 1996 Order, the tribunal therefore makes the following order for compensation;

(A) Basic Award

£216.82 x 6 x 1 = £1300.92

(B) Compensatory Award

Immediate Loss

Loss of Income from 6 November - 14 December 2003

(5.5 weeks)

£200 x 5.5 £1100.00

Loss of income from 15 December 2003-10 September

2004 (39 weeks)

39 x £16.75 £ 653.25

Future loss

£16.75 x 26 weeks £ 435.50

Loss of statutory rights £ 400.00

£2588.75

Total of award under (B) £2588.75

(C) Total Monetary Award (A) & (B) £3889.67

(D) Prescribed Element £1100.00

Period of Prescribed Element

6 November 2003 – 14 December 2003

Amount by which (C) exceeds the amount at (D) £2789.67

(h) The tribunal has given extensive consideration to the reasoning of the Employment Appeal tribunal in Kopel v. Safeway Stores Plc [2003] IRLR 753. With regard to the letter from the CAB, dated 24 November 2004, the applicant sought details of the investigation carried out in her case. The respondent's letter fails to address this crucial point of her complaint before us. Thereby, he has added to the expense of the applicant's complaint. Moreover, in having to deal with the contentions raised by the respondent in the letter of 28 November 2003, the respondent has caused the applicant to incur further legal expense. By its letter of 24 November 2004, the tribunal determines that the applicant put the respondent on notice that she would use the letter with respect to costs. Regulation 9(2) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004 ["the 2004 Rules"] provides the tribunal with an overriding objective;

9(2) Dealing with a case justly includes, so far as practicable-

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate to the complexity of the issues; and

(d) ensuring that it is dealt with expeditiously and fairly.

(i) By Regulation 9(3) of the 2004 Rules, the tribunal is required to give effect to the overriding objective when it interprets and exercises it powers under Schedules 1-6 of the 2004 Rules. Pursuant to Rule 14(1) of Schedule 1 to the 2004 Rules, the tribunal determines (i) the respondent's failure to fully reply to the applicant's requests as contained in the CAB letter of 24 November 2004, and (ii) by raising spurious contentions against the applicant in his letter of 28 November 2004, has added to the

applicant's expenses. The tribunal determines the CAB letter of 24 November 2003 put the respondent on notice that it would seek the applicant's costs before the Industrial tribunal. Accordingly, the respondent has violated Regulation 9(2) (b) of the 2004 Rules. This is unreasonable conduct of the proceedings by the respondent, contrary to Rule 14(1) of Schedule 1 to the 2004 Rules;

(j) Pursuant to Rule 14(3)(a) of Schedule 1 to the 2004 Rules, the tribunal orders the respondent to pay the applicant's costs in the amount of £750.00;

(k) There is no claim before the Industrial tribunal for the applicant's pay in lieu of notice.

10. The tribunal does not consider it appropriate to exercise its discretion to make any deduction to the above amount, pursuant to Article 162(A) of the 1996 Order (failure to pursue an internal appeal).
11. This is a Decision to which the Employment Protection (Recoupment of Jobseekers' & Income Support) Regulations (NI) 1996 applies;
12. This is a relevant Decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
13. No further or other Order is made.

Chairman:

Date and place of hearing: 10 September 2004, Belfast

Date decision recorded in register and issued to parties: