Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 300/06

301/06

CLAIMANTS: Juhan Parel

Marge Parjala

RESPONDENT: McAlister Investments Ltd t/a The Marine Hotel

DECISION

The unanimous decision of the tribunal is that the claims of unfair dismissal made by each of the claimants are dismissed and that the claims made by each of them in respect of notice pay are dismissed.

Constitution of Tribunal:

Chairman: Mr Palmer

Members: Ms Mulligan

Mr Nicholl

Appearances:

Neither of the claimants appeared, nor was either represented.

The respondent was represented by Miss C McNeill, Solicitor, of Campbell McKee, Solicitors.

The Claims

1. By Order, dated 18 July 2006, it was ordered that these two cases be considered and heard together.
2. Both claimants claimed that they had been unfairly dismissed by the respondent and both claimed payments in respect of failure to give notice of termination of their contracts of employment.

Non-appearance of the Claimants

3. The time fixed for the hearing was 10 am. Neither claimant was present at that time, nor was either present when the tribunal sat at 10.05 am. The respondent has had no contact with either of the claimants for some time. It appears (from information provided by the respondent) that they might have been in contact with the Labour Relations Agency at the beginning of last month.
4. Miss Mc Neill applied to strike out the claims as the claimants had not appeared. However, she also said that the respondent would be prepared to tender evidence in support of one of its contentions, namely, that neither claimant had sufficient service to qualify for the right not to be unfairly dismissed.
5. With regard to the claims for notice pay, Miss McNeill said that as the claimants were guilty of gross misconduct (which led to their dismissal) they were not entitled to notice pay. The defence to this claim was, therefore, that the respondent was entitled to dismiss the claimants without notice on account of their conduct.

The Rules

6. This was a hearing under Rule 26 of the Industrial Tribunals Rules of Procedure 2005 (the Rules), to dispose of the proceedings. The Rules are contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
7. Rule 27(5) of the Rules provides that 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 the 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.
8. Rule 27(6) of the Rules provides that if the tribunal wishes to dismiss or dispose of proceedings in the circumstances described in rule 27(5) above, it shall first consider any information in its possession which has been made available to it by the parties. The tribunal in dealing with the cases considered the information in its possession made available to it by the parties.
9. The tribunal decided that it would not adjourn the proceedings to a later date. It decided that it would dispose of those parts of the unfair dismissal proceedings relating to the preliminary matter referred to immediately below and dismiss the notice pay claims, for the reasons set at paragraph numbered 19 below.

The unfair dismissal claims

10. As stated above, the tribunal decided that it would deal with the preliminary matter concerning the unfair dismissal claims. The preliminary matter is whether the claimants qualify to bring claims for unfair dismissal.

The Law

11. Insofar as relevant to the issue in these cases, by a combination of Articles 126 (1) and Article 140 (1) of the Employment Rights (Northern Ireland) Order 1996 (the Order) an employee has the right not to be unfairly dismissed if he or she has been continuously employed by his or her employer for a period of not less than one year ending with the effective date of termination of the employment contract.

The Facts

12. Evidence as to the facts was given by Mr Andrew Orr who is the general manager of the Marine Hotel, where both the claimants were employed.
13. It was admitted in each of the respondent's responses that the claimants were dismissed.
14. Mr Orr gave evidence that Mr Parel (the first claimant) had been employed by the respondent and left that employment on 2 May 2005, that he recommenced employment with the respondent on 26 August 2005 and that he was dismissed by the respondent on 4 January 2006.
15. With regard to Miss Parjala (the second claimant), Mr Orr gave evidence that she too had been previously employed by the respondent, that she left that employment on 24 July 2005, that she recommenced employment with the respondent on 26 August 2005 and that she was dismissed by the respondent on 4 January 2006.
16. The first claimant, in his Claim to an Industrial Tribunal, states that he was employed by the respondent from 20 September 2004 until 4 January 2006 and the second claimant, in her Claim to an Industrial Tribunal, states that she was employed by the respondent from 2 October 2004 until 4 January 2006.
17. The tribunal accepts the evidence given by Mr Orr as set out above.

Findings

18. The tribunal finds that neither the first claimant nor the second claimant has sufficient continuous employment to qualify for the right contained in Article 126 (1) of the Order, namely, not to be unfairly dismissed and the tribunal dismisses this aspect of both claims.

The notice claim

19. Both claimants claim compensation in respect of notice. With regard to these claims Miss McNeill said that the respondents will assert that they were entitled to dismiss the claimants as both were guilty of gross misconduct. There is, therefore, an issue here.

In the tribunal's view it is up to the claimants to establish a case that they are entitled to notice pay in the circumstances. They were not present to do so. The tribunal, taking account of the information before it (which included their claim forms), dismisses this part of both the claims.

Summary of decisions

20. The claimants' claims are dismissed in their entirety.

Chairman:

Date and place of hearing: 24 July 2006, Belfast

Date decision recorded in register and issued to parties: