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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Donaghy v Michael Connolly [2010] NIIT 01147_10IT (22 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/01147_10IT.html
Cite as: [2010] NIIT 01147_10IT, [2010] NIIT 1147_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1147/10
CLAIMANT: Tanya Donaghy
RESPONDENTS: 1. Michael Connolly
2. MTC Retail Limited
DECISION
The unanimous decision of the tribunal is as follows:-
1.
That the correct respondents to
the claim are Michael Connolly and MTC Retail Limited and the title of the
proceedings is amended accordingly.
2.
That the claimant was unfairly
dismissed and the respondents are hereby ordered to pay the claimant compensation
in the sum of £5631.00; and
3.
That the claimant is entitled to
payment in respect of notice pay, holiday pay and pay for a lying week and the
respondents are hereby ordered to pay to the claimant a total sum of £2,184.00
in respect of such entitlements.
4. That the claimant is entitled to an additional award under Article 27 of the Employment (Northern Ireland) Order 2003 and the respondents are hereby ordered to pay to the claimant an additional award of £720.00.
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr I Carroll
Ms E May
Appearances:
The claimant appeared and represented herself at the hearing.
The respondent did not submit a response to the claim and did not appear at the hearing.
The Claims
1. The claims were
a) a claim of unfair dismissal;
b) a claim for breach of contract, namely pay in lieu of notice;
c) a claim for a statutory redundancy payment;
d) a claim in respect of accrued holiday pay; and
e) a claim in respect of unpaid wages, namely pay in respect of a lying week
The Issues
2. The issues to be determined by the tribunal in relation to the claim of unfair dismissal were:-
(a) whether the respondents had complied with the statutory dismissal procedure pursuant to The Employment (Northern Ireland) Order 2003 (“the 2003 Order”) and The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the Dispute Resolution Regulations”) and therefore whether the dismissal of the claimant was automatically unfair; and
(b) if appropriate, the compensation to be awarded to the claimant
3.
The issues to be determined in
relation to the claim for pay in lieu of notice were whether the claimant was
entitled to receive notice of termination of her employment. If so, what
period of notice was she entitled to and whether she had received such notice
or pay in lieu of notice.
4.
In respect of the claim for a
statutory redundancy payment, the tribunal had to determine whether the
claimant’s employment was terminated by reason of redundancy and, if so,
whether the claimant was entitled to a statutory redundancy payment.
5.
The issues to be determined in
respect of the claim for holiday pay were the number of days holiday which the
claimant had accrued but not taken at the date of termination of the claimant’s
employment and the payment due to the claimant in. respect of such holidays
6. In respect of the claim of unpaid wages, the tribunal had to determine whether the claimant was entitled to payment in respect of a lying week.
Disposal of the claim in the absence of the respondent
7. The respondent had not presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing. The tribunal was also satisfied that the Notice of Hearing had been sent to the respondent in good time before the hearing. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Sources of Evidence
8. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant. The tribunal also considered an e-mail message from the first respondent in which he submitted that the correct respondent to the claim was MTC Retail Limited.
Facts of the Case
9. Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-
10. The claimant who was born on 15 September 1975 was employed as a cook in a restaurant business in Claudy. The claimant was employed in this post from April 2004 to 24 December 2009.
11. The claimant understood that her employer was Michael Connolly and that he personally was the owner of the business. Pay slips received by the claimant referred to MTC Retail Limited. The claimant did not receive any written statement of the main terms and conditions of her employment.
12. Throughout her employment, the claimant was paid £6.00 per hour (gross). The claimant worked 30 hours per week and her net pay was £168.00 per week. In the last few weeks of her employment, the claimant’s hours of work were reduced below her normal 30 hours per week.
13. Around 21 December 2009, the claimant and her colleagues heard that the restaurant business was to be closed. On or about 24 December 2009, Mr Michael Connolly spoke to the claimant and her colleagues in the kitchen of the restaurant and told them that, after finishing time that day, the restaurant would cease trading and they were no longer required. Mr Connolly made it clear that the business would not be re-opening after Christmas. He said that he would ask his solicitors to organise redundancy payments for the staff, but this never occurred.
14. The claimant did not receive any letter indicating that the respondent was contemplating the dismissal of the claimant. No meeting was held with the claimant to discuss her possible dismissal. The claimant was not offered an appeal in relation to her dismissal.
15. The claimant did not receive any notice monies nor any redundancy payment.
16. Since the termination of her employment, the claimant has commenced other part-time employment on 26 January 2010 working 16 hours per week for which she earns £6.00 per hour (gross). The claimant is continuing to look for other employment to increase her hours of work, but at the date of the hearing, had been unable to find such employment. The claimant was hopeful that that she would be working 30 hours per week again by September 2010.
17. The respondent’s leave year ran from 1 April to 31 March. The claimant was entitled to holidays under the Working Time Regulations, that is 5.6 weeks paid leave per annum. During the final holiday year, the claimant received only one week’s paid holiday.
18. At the beginning of her employment, the claimant worked a lying week, that is she did not receive any pay for her first working week. The claimant understood that this was to be paid at the end of her employment.
19. On 26 February 2010, the claimant’s solicitors wrote to Mr Connolly seeking written reasons for dismissal and setting out a claim in respect of pay in lieu of notice, accrued holidays and payment for a lying week. The claimant’s solicitors also sought payment of a statutory redundancy payment. No response was received to that correspondence.
Statement of Law
20. The statutory dismissal procedure introduced by the 2003 Order applies in this case. In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-
Step 1 – written statement of grounds for potential dismissal and invitation to a meeting.
Step 2 – meeting to discuss the proposal to dismiss the employee.
Step 3 - appeal meeting.
By Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), where the non-completion of the statutory dismissal procedure is attributable to the employer, the dismissal is automatically unfair.
21. Pursuant to Article 17 of the 2003 Order, where it appears to the tribunal that the non-completion of either the statutory dismissal procedure or the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50 per cent.
22.
By article 118 of the
1996 Order, the notice required to be given by an employer to terminate the
contract of employment of an employee is one week’s notice for each year of
continuous employment between 2 years and 12 years.
23. Under article 170 of the 1996 Order, an employer shall pay a redundancy payment if an employee is dismissed by reason of redundancy. By article 174 of the 1996 Order, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the employer has ceased to carry on the business for the purposes of which the employee was employed.
24.
Under Regulation 13 of the
Working Time Regulations 1998 (as amended), a worker is entitled to a total of 5.6 weeks paid
leave in any leave year. By Regulation 14 of the Working Time Regulations,
where a worker’s employment is terminated during the course of his leave year
and the proportion of leave taken by the worker is less than the leave accrued
at the termination date, then the employer shall make him a payment in lieu of
the leave which was accrued but not taken.
25.
By Article 45 of the Order, an employer shall not make a
deduction from wages of a worker employed by him unless the deduction is
authorised by statute or a relevant provision of the worker’s contract or the
worker has previously signified in writing his consent to the making of the
deduction. A complete failure to pay wages on any occasion constitutes a
deduction from wages.
26.
The statutory grievance procedure set out in the 2003 Order is
applicable in this case. The standard statutory grievance procedure requires
the employee to put her complaint in writing to the respondent and for the
respondent to invite the employee to a meeting to discuss the grievance and
then an appeal meeting. The consequences of non-completion of the statutory
grievance procedure are as set out at paragraph 20 above.
27. By article 27 of the 2003 Order, where a tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and when the proceedings were begun the employer was in breach of his duty under Article 33 or 36 of the Order to provide to the employee a statement of main terms and conditions of employment, the tribunal shall increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances to do so, increase the award by the higher amount instead. The minimum amount is 2 weeks pay and the higher amount is 4 weeks pay.
Conclusions
Correct identity of the respondent
28. It was clear from the evidence of the claimant that she understood her employer to be Mr Michael Connolly. However, on the other hand, the pay slips received by the claimant referred to MTC Retail Limited. The claimant had not received a Statement of Main Terms and Conditions of Employment which would have served to clarify the correct identity of the employer. In the circumstances and given the lack of clarity as to the identity of the employer in this case, the tribunal decided that it was appropriate that any award should be made against both Michael Connolly and MTC Retail Limited. Accordingly, the title of the proceedings is hereby amended by adding MTC Retail Limited as an additional respondent.
Unfair dismissal
29. In light of the facts found,
the tribunal had no hesitation in concluding that none of the requirements of
the statutory dismissal procedure were complied with in this case. The
respondent did not send a step 1 letter to the claimant nor did the respondent
conduct a step 2 meeting or a step 3 appeal meeting. The tribunal was
satisfied on the basis of the facts found that the non-completion of the
statutory dismissal procedure was wholly attributable to the respondent. The
tribunal therefore concluded that the dismissal of the claimant was
automatically unfair in accordance with Article 130A of the 1996 Order. It was
not therefore necessary for the tribunal to consider whether the dismissal was fair
in all the circumstances.
30. Accordingly, the unanimous
decision of the tribunal is that the claimant was unfairly dismissed and that
the claimant is entitled to compensation for such unfair dismissal.
31. Having considered the claimant’s evidence regarding the attempts made by her to find alternative employment and taking account of the present economic conditions, the tribunal considered that it was likely that the claimant would find other employment with the same hours of work in or around September 2010. Accordingly, the tribunal determined that it would be just and equitable in all the circumstances for the claimant to be awarded ongoing loss of earnings up to
1 September 2010.
32. The tribunal found that the respondents
entirely failed to follow each and every requirement of the statutory dismissal
procedure and indeed made no attempt to follow any procedure whatsoever in
respect of the claimant’s dismissal. The tribunal was also struck by the fact
that the claimant’s dismissal in this manner took place on Christmas Eve. In all
the circumstances, the tribunal took the view that it was just and equitable
for the award to the claimant in respect of unfair dismissal to be increased to
the fullest extent allowed by article 17 of the 2003 Order, that is by 50 per
cent.
Compensation for unfair dismissal
33. Having determined that the claimant was unfairly dismissed, the tribunal went on to consider the appropriate remedy. The claimant did not seek reinstatement or re-engagement. The tribunal considers that the appropriate compensation in this case in accordance with article 152 to 158 of the Employment Rights (Northern Ireland) Order and article 17 of the Employment (Northern Ireland) Order is as follows:-
(A) Basic award
gross weekly pay (£6 x 30 hours) X 5 = £900.00
(B) Compensatory award
Immediate loss to date of hearing:-
4 weeks before the claimant obtained alternative employment
= 4 weeks @ £168 (net) per week = £672.00
A further 28 weeks @ (£168 - £96 per week) = £2,016.00
Future loss of earnings from date of hearing to 1 September 2010:-
3 weeks @ (£168.00 per week –£96.00
earnings from new employment) = £216.00
Loss of statutory rights £250.00
Total monetary award for unfair dismissal £900.00
£ 672.00
£2,016.00
£ 216.00
£ 250.00
£3,154.00
Increase in monetary compensatory award of 50%
Add £1,577.00
Total compensatory award after increase £4,371.00
Total award for unfair dismissal = £5,631.00
Prescribed element = Nil
The tribunal can see no basis for a reduction for contributory fault in this
case.
Accordingly, the tribunal hereby orders the respondents to pay to the claimant compensation for unfair dismissal in the sum of £6081.
Pay in lieu of notice
34. The claimant was employed for a period in excess of 5
years. Therefore, the claimant was entitled to 5 weeks notice of the
termination of her employment. The claimant received neither notice of
termination nor pay in lieu of notice. Accordingly, the claimant is entitled
to notice monies as follows:-
5 weeks x £168 per week (net) = £840.00
Statutory redundancy
payment
35. Since the respondents’ business ceased trading,
the tribunal had little hesitation in concluding that the claimant was
dismissed by reason of redundancy and that she was therefore entitled, in
principle, to a statutory redundancy payment. However, since the claimant is
entitled to a basic award for unfair dismissal, the claimant is not entitled to
a separate award in respect of a statutory redundancy payment. The tribunal
therefore makes no award in respect of a statutory redundancy payment.
Holiday pay
36. In relation to the claim for holiday pay, the
tribunal was satisfied that the claimant was entitled to 5.6 weeks paid holiday
per annum pursuant to the Working Time Regulations. At the date of termination
of her employment, the claimant had accrued holidays which she had not taken.
The claimant is therefore entitled to holiday pay calculated as follows:-
Holiday year = 1 April to 31 March
Date of termination of employment – 24 December (38 weeks of holiday year worked)
Leave accrued at date of termination = (38 weeks/52 x 5.6 weeks) = 4 weeks
Less one week’s leave taken = 3 weeks
Therefore the claimant is entitled to 3 weeks’ holiday pay
= 3 x £180 (gross) = £540.00
Lying week
37. The tribunal was
satisfied that the claimant had worked a week without pay at the beginning of
her employment on the basis that she was to receive payment in respect of this
week at the termination of her employment. The claimant did not receive such
payment. Accordingly, the claimant is entitled to pay in respect of this lying
week as follows:-
1 week’s pay @ £180.00 per week (gross) = £180.00
Increase in award – non-completion of the statutory grievance procedure
38. The tribunal considered that a
letter of grievance sent by the claimant’s solicitors to the respondents on 26
February 2010 in respect of notice pay, holiday pay and pay for a lying
week constituted full compliance by the claimant with step 1 of the statutory
grievance procedure. However, the respondents did not make any response to
that letter and therefore the statutory grievance procedure was not completed
in this case. The tribunal was satisfied that the non-completion of the
statutory grievance procedure was wholly attributable to the respondents. The
respondents made no effort to comply with that procedure by offering to meet
the claimant to discuss her grievance. Accordingly, the tribunal determined
that it was appropriate in the circumstances for the award to the claimant in
respect of notice pay, pay for a lying week and holiday pay each to be
increased by 40%.
Award for pay in lieu of notice = £840.00
Increase of 40% Add £336.00
Total award for notice pay after increase = £1,176.00
Award in respect of holiday pay = £540.00
Increase of 40% Add £216.00
Total award for holiday pay after increase = £756.00
Award for pay for lying week = £180.00
Increase of 40% Add £72.00
Total award for pay for lying week = £252.00
Total £2,184.00
39.
The tribunal found as a fact
that, throughout her employment, the claimant never received a statement of
main terms and conditions of employment. The tribunal therefore determined
that it was appropriate to make an award under article 27 of the 2003 Order.
In view of the respondents’ complete disregard demonstrated by the respondents
in respect of many of their statutory obligations as employer, the tribunal
considered it appropriate to award the higher amount, that is 4 weeks pay
calculated as follows:-
4 weeks pay @ £180 per week (gross) = £720.00
40. This is a relevant decision for the purposes of the Industrial tribunals (Interest) Order (Northern Ireland) 1996.
Chairman:
Date and place of hearing: 10 August 2010, Belfast.
Date decision recorded in register and issued to parties: