Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/227_09IT.html
Cite as: [2009] NIIT 227_9IT, [2009] NIIT 227_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 227/09

CLAIMANT: Moira Doherty

RESPONDENT: Jeffrey Lee T/A Lee Property Sales

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The respondent shall pay to the claimant £7,055.11 being redundancy payment and compensation for unfair dismissal as detailed below.

Constitution of Tribunal:

Chairman: Mrs M Watson

Members: Mrs Heaney

Mr Waite

Appearances:

The claimant appeared in person and was not represented.

The respondent appeared in person and was not represented

1. ISSUES FOR DETERMINATION

1. 1 There had been a Case Management Discussion held on 18 May 2009 due to the claimant’s claim in her originating application of age discrimination. The discrimination claim was withdrawn and the parties agreed 7 legal and 18 factual issues for determination. In summary these arose from the respondent telling the claimant on 31 October 2008 that she was redundant. The claimant claimed that this had been an unfair dismissal as no proper procedures had been followed. Her claim also included a claim for 2 days holiday pay and notice pay.

2. FINDINGS OF FACT

2. 1 The tribunal made the following findings after hearing oral evidence from the claimant and respondent and considering the contents of the bundle of documentation prepared by the claimant and agreed by the respondent.

2. 2 The claimant was employed by the respondent to carry out the administrative work of his estate agency business from 25 March 2002. She was the only employee until September 2007 when another person, Jill Pollock, was engaged under the Job Skills Scheme to assist with rental business.

2. 3 The claimant worked 39 hours per week and was paid £984.24 net per month, which is £227.14 per week. On Friday 31 October 2008, the respondent called the claimant into his office and informed her that her job was redundant and that she did not need to return to work thereafter. This was the first indication the claimant received of any termination of her employment.

2. 4 When informing her of the termination, the respondent had informed her that he would contact her within a few days regarding her redundancy payment but he failed to do so. The claimant went to see the respondent on the following Thursday but was told by the respondent that he could not give her what he did not have and that if she pressed for the money, he ‘might as well turn the key in the lock.’

2. 5 The claimant was very hurt and upset by the respondent’s attitude. She took advice and then wrote to the respondent setting out what she believed was the detail of her entitlement and asking for his response. None was received and proceedings were issued.

2. 6 In his response and in his evidence to the tribunal, the respondent stated that the claimant had known for some months that the volume of business had declined. The business had been in financial difficulty for some time and the respondent had, on his own evidence, needed approval from his bank to write any cheques, including salary cheques. He also said that he had not drawn any salary from the business for himself since October 2008.

2. 7 The respondent acknowledged that he had not taken any steps to inform the claimant in writing of the threat to the continuation of her employment. The tribunal rose to allow the respondent time to consult with the representative from the Labour Relations Agency with regard to his obligations as an employer under the Employment (Northern Ireland) Order 2003 when contemplating dismissal. On his return, the respondent maintained that he had no money to pay the claimant her entitlement.

3. THE RELEVANT LAW

3. 1 The Employment Rights (Northern Ireland) Order 1996 (as amended), sets out the law relating to dismissals, including redundancy dismissals. Article 174(1) (b) of the Order states that where the requirements of the business for the employee to carry out work of a particular kind have ceased or diminished, then the employee is to be taken as dismissed by reason of redundancy. Article 174 goes on to say at (3) that a tribunal may determine that an employer is liable to make an appropriate payment to an employee where it appears to the tribunal that it is just and equitable to do so.

3. 2 Article 197 of the Order provides that the appropriate payment is related to the claimant’s age and length of service, and is based on the employee’s weekly wage up to a cap of £330 per week. In this case, the claimant had 5 years service between age 21 and 40 and 1 year aged 41.

3. 3 Where an employer contemplates dismissing an employee, he is required, as a minimum, to follow the Statutory Dismissal Procedure set out in the Employment (Northern Ireland) Order 2003.

3. 4 The 2003 Order also amended the 1996 Order by inserting a new Article 130A which deals with situations where employers have not followed the statutory dismissal procedures of the 2003 Order. Such dismissals are as a result automatically unfair and the tribunal is required to consider increasing the award by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase the award by up to 50%.

3. 5 Article 118 of the 1996 Order provides that an employee is entitled to one week’s notice pay for each year of employment.

4. DECISION

4. 1 Applying these legal provisions to the facts found, the tribunal is satisfied that the claimant was dismissed by reason of redundancy on 31 October 2008. At that time she was aged 42 and had 6 years service, one of which she was aged over 41. Accordingly, her entitlement to a redundancy payment is as follows:-

6.5 weeks pay x £227.14 = £1,476.41

Notice pay 6 x £227.14 = £1,362.84

Holiday pay 2 x £ 45.43 = £ 90.86

Total = £2930.11

4. 2 The tribunal finds that while the dismissal was potentially fair under the 1996 Order as it was for redundancy, the respondent paid no regard whatsoever to the statutory procedures contained in the 2003 Order and the dismissal is therefore rendered unfair. The tribunal recognises that the claimant’s employment would probably not have continued much beyond the actual date of termination. However, the respondent had known for at least two months prior to that date that he was in financial difficulty. He must have known it was only a matter of time before he was unable to pay salaries to both his employees yet he apparently decided not to take any advice as to his duties and responsibilities as an employer in such circumstances. Indeed, he lodged a defence to this claim and continued to deny liability after being given advice from the tribunal and the Labour Relations Agency. The tribunal find that in all the circumstances of this case, it is just and equitable to increase the award to the claimant by the maximum 50 %.

The tribunal calculate the award as follows:-

5. Basic Award

The redundancy award is off set against the basic award reducing it to nil.

6. Compensatory award

6. 1 The claimant provided documentation to the tribunal which demonstrated her efforts to secure alternative employment and mitigate her loss. She took up alternative employment with an employment agency in November 2008 and was placed in a company soon after. This employment is not permanent, the salary is less that her previous post and it requires additional travel expense. She continues to apply for permanent posts.

6. 2 Her present salary is more than £270 per month less than she would have earned with the respondent and she also has increased travel expenses. In the circumstances, the tribunal find that it is just and equitable to award the claimant a compensatory award as follows:-

Loss from November 2008 to July 2009 = 9 months x £250= £2,250.00

Loss of Statutory Rights £ 500.00

Uplift 50% £1,375.00

Total £4,125.00

£2,930.11

£4,125.00

Total Award £7,055.11

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 27 July 2009, Belfast

Date decision recorded in register and issued to parties:

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