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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Coey v Johnston (t/a The Men's Room Barber Shop) [2005] NIIT 485_04 (20 June 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2005/485_04.html
Cite as: [2005] NIIT 485_04, [2005] NIIT 485_4
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- The claimant lodged an originating application on 26 February 2004 alleging unfair dismissal, no pay slips or written contract. It appears from paragraph 13 that the claimant was also alleging sex discrimination in that she alleged that she had been unfairly discriminated against on the grounds of her pregnancy.
- In her notice of appearance the respondent denied that the claimant had been dismissed at all. She further denied that the claimant's pregnancy in any way changed the claimant's position in work. The respondent stated in her notice of appearance that she believed that the claimant received pay slips from the Inland Revenue as the claimant was in receipt of tax credits.
- The parties were issued with a notice of hearing on 23 March 2005 advising them that the case was listed for hearing on 20 and 21 June 2005 (Reserve).
- Could the claim be dealt with in the absence of the claimant?
- Had the claimant been unfairly dismissed?
- Had the claimant been discriminated against on the grounds of her pregnancy?
- Had the respondent failed to provide that claimant with itemised pay slips?
- Had the claimant received a written contract?
- That the claimant worked for the respondent on a casual hour's basis, being paid only for hours worked.
- That the claimant's wages were approximately £85.00 per week but that because of her frequent absences and or lateness her wages were rarely this amount.
- That the claimant did not receive itemised pay slips.
CASE REF: 485/04
CLAIMANT: Sarah Julie Coey
RESPONDENT: Kirsty Johnston t/a The Men's Room Barber Shop
The unanimous decision of the tribunal is that the claimant's claim be dismissed.
Appearances:
The claimant did not attend and was not represented.
The respondent appeared in person and represented herself.
The Claim
Issues
The tribunal considered all the documents before it in the file and those brought to the tribunal by the respondent. The respondent submitted extracts from a work diary indicating the recorded absences and late arrivals of the claimant. The respondent also submitted the original of this diary. The tribunal offered the respondent the opportunity to give oral evidence in relation to the claims but the respondent did so only in relation to itemised pay slips.
The tribunal found the following facts on a balance of probabilities:-
The Tribunal's Conclusions
The Hearing
The tribunal considered the options open to it under the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, "the hearing", and in particular Rule 27(5) and (6).
Rule 27(5) states:-
'If a party fails to attend or be represented (for the purpose of conducting the party's
case at the hearing under Rule 26) at the time and place fixed for such hearing, the
tribunal may dismiss or dispose of the proceedings in the absence of that party or
may adjourn the hearing to a later date'.
Rule 27(6) states:-
'If a tribunal wishes to dismiss or dispose of proceedings in the circumstances
described in paragraph (5) it shall first consider any information in its possession which has been made available to it by the parties.
The tribunal considered that as the notice of hearing had been sent to both parties informing them of this hearing the tribunal did not consider that it was appropriate to adjourn the matter.
The tribunal then considered all the claims under Rule 27(6). The tribunal offered the respondent the opportunity of adding further evidence to her statement in her notice of appearance in respect of all the claims. The respondent gave further evidence in relation only to the itemised pay slip claim. The respondent indicated that she still maintained what she had said in relation to the other claims.
Itemised Pay Slip Claim
The tribunal considered Article 40 of the Employment Rights (Northern Ireland) Order 1996 and noted that an employer had the statutory obligation to provide an employee with itemised pay slips.
The tribunal also noted that by virtue of the provisions of Article 44(3) of that Order that it had to make a declaration as to any such failure of an employer so to provide such pay slips.
The tribunal further noted that by virtue of Article 44(4) of the same Order the tribunal had the discretionary power to award to the claimant some un-notified deductions if the tribunal found that these had been so deducted.
The tribunal was satisfied that the respondent was under this statutory obligation to provide the claimant with itemised pay slips and that she had failed to do so. Accordingly the tribunal made a declaration that the respondent had failed to provide itemised pay slips to the claimant in accordance with Article 44(4) of the Order.
In view of the respondent's evidence that the claimant's wages were never high enough for deductions to be necessary, which evidence the tribunal accepted, the tribunal did not consider it appropriate to make any award in respect of deductions and did not do so.
Unfair Dismissal Claim
In the absence of any evidence from the claimant the tribunal is not satisfied that the claimant has discharged the burden of proving on the balance of probabilities, that she was dismissed by the respondent.
Accordingly the tribunal dismissed that claim.
Sex Discrimination Claim
In the absence of evidence to substantiate allegations of unfair dismissal on grounds of her pregnancy, the tribunal is not satisfied that she has established facts from which the tribunal can conclude, in the absence of an adequate explanation from the respondent, that she had been unfairly dismissed on the grounds of her pregnancy or unlawfully discriminated against on the grounds of her pregnancy.
Accordingly the tribunal dismissed that claim.
Written Contract
The tribunal found that the claimant had not made a proper claim under this head.
Accordingly the tribunal dismissed that claim.
Chairman:
Date and place of hearing: 20 June 2005, Belfast.
Date decision recorded in register and issued to parties: