Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 102_08IT, [2008] NIIT 102_8IT

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THE INDUSTRIAL TRIBUNAL

CASE REF: 102/08

CLAIMANT: Ashleigh Crothers

RESPONDENT: Holly Bannon – So Hot Studio

DECISION

The Claimant was constructively dismissed on 31 October 2007 by the Respondent, and the Tribunal awards her £290.00 by way of a Basic Award for unfair dismissal.

The Claimant did not receive notice or pay in lieu thereof on 31 October 2007, contrary to Article 118 of the 1996 Order. Accordingly, the Respondent is ordered to pay the Claimant £290.00 in lieu of notice.

The Tribunal is satisfied the Claimant did not receive her wages for the last six weeks of her employment prior to 31 October 2007, and determines this was an unauthorised deduction from wages, and now orders the Respondent to pay the Claimant such wages in the amount of £1740.00.

Constitution of the Tribunal:

Chairman: Mr M G O'Brien

Panel Members: Mr McDonell

Mrs Heaney

Appearances:

The Claimant did not appear and was not represented.

No response was entered for the Respondent. The Respondent did not appear and was not represented.

Sources of Evidence

The Tribunal considered, in full, the Claimant's claim.

The Tribunal received in evidence a letter from Moore Stephens, Chartered Accountants, dated 10 October 2007 and addressed to Ms Patricia Baird of the Redundancy Payments Branch of the Department of Employment & Learning. The Tribunal also received in evidence a faxed message to the Tribunal dated 6 May 2008 from Suzanne Lennox of the Redundancy Payments Branch.

The Contentions of the Claimant

By her claim, presented on 2 January 2008, the Claimant asserted at section 2.1 that she has been employed by the Respondent. At section 1.3 of the claim, the Claimant stated she was born on 23 December 1980. At section 2. 4 of the claim, the Claimant stated she worked in the Respondent's premises at 8 Balloo Court, Bangor and Unit 6 Flagship Centre, Bangor. At section 5.1, of the claim, the Claimant asserted she had been employed by the Respondent, and at section 5.3 that her claim was not about any dismissal. At section 5.5 of the claim, the Claimant asserted she had put her grievance in writing to the Respondent on 4 November 2007, and stated at 5.6 of the form that she had waited 28 days for a response to this grievance. At section 6.1 of the claim, the Claimant asserted that she had been employed by the Respondent from 1 July 2006 until 31 October 2007. At section 6 of the claim, the Claimant asserted she had been employed as a studio manager, working 40 hours a week, and earning £14,560.00 per month (sic.): £290.00 per week each week nett. The Claimant further alleged she had not received her notice pay. At sections 7 and 12.1 of the claim the Claimant elaborated on her claim thus;

Constructive Dismissal:

My employer moved abroad leaving many employees unpaid. Also leaving unpaid bills to suppliers and other businesses. This I was unaware of until they came to me demanding payment. The rent was owed for the premises I was working from, so I tried to contact Holly to ask her for payment as we were being asked to leave the premises for not paying the rent. She claimed she could not pay the rent, nor could she pay the employees' wages and suggested we claim our wages through the redundancy office. I then left on 31 October 2007 due to not being paid for two months and being contacted by businesses trying to get me to pay them what Holly Bannon, the owner of So Hot Studio and its parent company Bannon Walters Int. owed them.

…Holly had told other employees to claim their unpaid wages through the redundancy office when they resigned as she could not afford to pay them, which I presume is illegal as well as wrong.

Holly reassured me many times that we as a company were just going through a dry spell and that I would get "caught up" with our wages. But that obviously did not happen. Also Holly left for the States without setting up a new accountant as Bannon Walters International was made bankrupt as was her other business, The Haggle House.

The contact details I have for Holly may not be reliable as I have had very little contact since she left for the States and none since I made her aware of how much wages I and another employee were owed. I wrote to her asking for our wages and to date have received no reply. I have held on to some relevant paperwork regarding hours worked by myself and all other team members…

At section 7 of the claim, the Claimant asserted that she had now secured alternative employment from 4 November 2007, which employment was scheduled to end on 1 January 2008. The Claimant did not provide details of her earnings in this new employment. The Claimant did not claim any form of state benefit, according to section 7.8 of her claim, and sought compensation only for unfair dismissal. At section 8 of the claim, the Claimant did not assert any form of unlawful discriminatory treatment. At section 9 of the claim, the Claimant stated that she asserted a claim for a redundancy payment from the Redundancy Payments Branch, which was denied her on 6 November 2007. At section 10.1 of the claim, the Claimant stated she was claiming unpaid wages and notice pay of £1818.08 nett, comprising one and a half month's wages and one week's pay in lieu of notice.

The letter from D W J McClean of Moore Stephens, Chartered Accountants, dated 10 October 2007 to Ms Patricia Baird of the Redundancy Payments Branch of the Department for Employment & Learning advised that s/he was appointed trustee in bankruptcy of Holly and Peter Bannon on 22 August 2007, following bankruptcy orders made on 16 August 2007. Mr and Mrs Bannon had traded from two retail shops in the Flagship Centre in Bangor and also at 25 High Street Newtownards. Both these locations had ceased to trade prior to the making of the bankruptcy order. D W J McClean further advised that The Haggle House is a registered company at Companies House (number NILLP071), and that employees of Mr and Mrs Bannon were contracted to work for Bannon Walters International Limited, a company of which Mr and Mrs Bannon are directors, which funded the employees of Bannon Walters International. However, D W J McClean advised that they were not appointed to act for Bannon Walters International, which is not in liquidation, and therefore did not have any employment records to confirm the precise employment position of employees. D W J McClean advised that these documents were held by the Company's accountants, Hamilton Morris Waugh, 34 Dufferin Avenue, Bangor, BT20 3AA.

The fax message from Ms Suzanne Lennox of the Employment Rights Branch of the Department of Employment & Learning, dated 6 May 2008, advised that although that Department was not joined as a notice party to these proceedings, it was Ms Lennox's view that any award to the Claimant should fall to Bannon Walters International Limited which was still listed as currently trading.

The Findings of Fact Made by the Industrial Tribunal

There is a conflict in the evidence between that contained in the letter of D W J McClean of 10 October 2007 (which stated that the Claimant was contracted as employed by Bannon Walters International Limited) and the information given in section 2 of the claim form, which asserted at section 2.1 that the employer was Holly Bannon. Balancing these secondary forms of evidence, the Tribunal prefers the latter information, as – albeit not sworn evidence – it felt that the Claimant would be in a better position to state who her employer had been. Therefore, we find that the employer was Holly Bannon.

The Claimant worked for Holly Bannon as a studio manager from 1 July 2006 until 31 October 2007. On the latter date, she was aged 26 years. The Claimant worked at 8 Balloo Court, Bangor and Unit 6 Flagship Centre, Bangor. The Bangor premises where the Claimant worked ceased to trade prior to 16 August 2007, on which date the Respondent and Peter Bannon were declared bankrupt. Thereupon, D W J McClean was appointed Trustee in bankruptcy of the Respondent and Peter Bannon. The Respondent is also associated with another company, The Haggle House, which is a registered company at Companies House (number NILLP071). Whatever the connection between the Respondent and Bannon Walters International Limited, this latter company is still trading, and the Respondent is a director of it. D W J McClean has not been appointed as Trustee in bankruptcy for Bannon Walters International Limited, and it appears that it is the directors of that company, the Respondent and Peter Bannon who are declared personally bankrupt. Moreover, the employee records of Bannon Walters International Limited are held by that company's accountants, who are Hamilton Morris Waugh, 34 Dufferin Avenue, Bangor, BT20 3AA.

The Claimant asserted she had put her grievance in writing to the Respondent on 4 November 2007, and waited 28 days for a response to this grievance. No such response has ever been received. The Respondent appears to have peremptorily moved to America. The Claimant worked 40 hours a week. From the confusing information available to it, the Tribunal finds it impossible to ascertain the Claimant's gross weekly wage. The Tribunal finds the Claimant earned £290.00 per week nett. The Claimant did not receive wages for the last six weeks of her employment. The Claimant did not receive notice pay. Moreover, the Claimant stated at section 5.3 of the claim that she was not asserting any claim for dismissal, yet refers at section 7.1 to constructive dismissal. From the scant details provided in section 7 of the claim, it appears sufficiently clear that the Respondent simply left Northern Ireland without giving the Claimant notice, or fairly or properly terminating her employment. The Claimant was re-employed on 4 November 2007, and did not claim any benefits as a result of her leaving the Respondent's employment. The Claimant specified her claim in section 10 of the claim, which we find to be (i) a Basic Award for unfair constructive dismissal, (ii) 6 weeks' unpaid wages, and (iii) one week's pay in lieu of notice. Whilst it appears that Mr and Mrs Bannon are directors of Bannon Walters International Limited, which is a company registered in Northern Ireland, and which is still currently trading, without further oral evidence from the Claimant, the Tribunal found it impossible to make any further findings of fact.

The Issues to be Decided

The issues to be decided are;

(a) Whether the Claimant has properly founded a claim for unfair dismissal, or for constructive dismissal;

(b) If the answer to the above question is in the affirmative, whether the Claimant has provided sufficient evidence on balance of probabilities to establish economic loss on foot of such an unfair dismissal;

(c) Whether the Claimant has properly founded a claim for pay in lieu of notice;

(d) Whether the Claimant has properly founded a claim for unlawful deductions from wages.

Applicable Law

The right not to be unfairly dismissed is provided by Article 126 of the Employment Rights (NI) Order 1996 ["the 1996 Order"].

The right not to be forced to terminate a contract of employment by reason of the employer's conduct is provided by Article 127(1) (c) of the 1996 Order.

The Basic Award of compensation for unfair dismissal, which is calculated on the basis of the employee's pay, is computed on the formula provided by Articles 152-156 of the 1996 Order.

The right to receive notice of termination of employment is provided by Article 118 of the 1996 Order. Article 118(1) of the 1996 Order provided that such notice is not less than one week's notice for each year of continuous employment. Article 118(3) of the 1996 Order provides that the employee may receive pay in lieu of such notice.

Part IV, Article 45 of the 1996 Order provides an employee with the right not to suffer unauthorised deductions from wages. Article 56 of the 1996 Order provides that, where it considers such a claim well founded, a Tribunal may make a declaration to this effect, and order the employer to pay the amount of such deduction to the employee.

Rules 27(5)-(6) of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2005 ["the 2005 Rules"] provide;

(5) 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.

(6) 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 Decision of the Tribunal

Pursuant to the obligation imposed on it by Rules 27 (5)-(6) of Schedule 1 to the 2005 Rules, the Tribunal wishes to emphasise that it has considered all the assertions in the claim, all the documentary evidence laid before it in the course of the hearing, and that it was mindful of the fact that the claims made were not resisted in any form by the Respondent.

The Claimant was employed by the Respondent, who is one of two persons found to have been declared bankrupt on 16 August 2007. The Respondent does not appear to have informed the Claimant of this crucial fact, and instead appears to have vanished from all responsibility for the Claimant's employment, and to have taken up residence in America. There is insufficient probative evidence to connect the Claimant's employment to either (i) The Haggle House or (ii) Bannon Walters International Limited, both of which companies are still registered as trading in Northern Ireland. The Claimant worked in Bangor, and the premises where she worked appear to have ceased trading sometime before 16 August 2007. Understandably, the Claimant was frustrated at the untoward manner of the departure of her employer from Northern Ireland, and a written grievance issued by the Claimant on 4 November 2007 remains unanswered.

Albeit that the evidence of unfair dismissal laid before the Tribunal is sketchy, it remains a fact that the Claimant's assertions that she was the victim of a constructive dismissal, contrary to Article 127(1)(b) of the 1996 Order, remain undefended. Accordingly, on the finding that the Respondent simply left Northern Ireland without any proper notice to the Claimant, or of fairly terminating her employment, the Tribunal determines that the Respondent has breached Article 127(1) (b) of the 1996 Order, and concludes the Claimant was constructively dismissed on 31 October 2007. It answers the first issue to be decided in the affirmative.

The evidence before the Tribunal of the Claimant's gross weekly wage is confused. Not for want of calculation and reckoning, the Tribunal was unable to make a reliable determination as to the calculation of the Claimant's gross weekly wage. The Tribunal was unable to account for the Claimant's stated £14,560.00 gross per month. The burden of proof is on the Claimant to establish her gross weekly wage, and she has failed to discharge this burden to our satisfaction. We accept the Claimant's nett weekly wage was £290.00 per week on 31 October 2007. On 31 October 2007, the Claimant was aged 26 years. Accordingly, pursuant to Article 153(2) of the 1996 Order, we find that the Claimant's "week's pay" is £290.00 per week, and that her Basic Award for unfair dismissal is as follows;

£290 x 1 x 1 = £290.00

The Claimant has not asserted economic loss on foot of her unfair dismissal. Accordingly, we answer the second issue to be decided in the negative, and make no award for economic loss for unfair dismissal.

The Claimant did not receive notice or pay in lieu thereof on 31 October 2007, contrary to Article 118 of the 1996 Order. We are satisfied the Claimant has successfully discharged the burden of proof on the third issue to be decided, and accordingly the Respondent is ordered to pay the Claimant £290.00 in lieu of such notice, pursuant to Article 118(3) of the 1996 Order.

Turning to the fourth issue to be decided, on balance of probabilities, the Tribunal is satisfied the Claimant did not receive her wages for the last six weeks of her employment prior to 31 October 2007. Accordingly, we determine this was an unauthorised deduction from wages, contrary to Article 45 of the 1996 Order. Pursuant to Article 56 of the 1996 Order, the Tribunal declares the Claimant was owed on 31 October 2007 six weeks' pay, and pursuant to Article 56(1) orders the Respondent to pay the Claimant £290.00 x 6 = £1740.00.

No other Order is now made.

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

Chairman:

Date and place of hearing: 9 May 2008, Belfast

Date decision recorded in register and issued to the parties