Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/148_10IT.html
Cite as: [2010] NIIT 148_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 148/10

483/10

CLAIMANT: Margaret Frances Gorman

RESPONDENT: Jonathan Little

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the Tribunal awards the sum of £487.20 in respect of holiday pay, £1421.00 in respect of notice pay and £4603.84 in respect of unfair dismissal and redundancy entitlement comprising a total award of £6512.04.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Panel Member: Mr D Edmont

Appearances:

The claimant was represented by her husband, Mr Gorman.

The respondent did not appear and was not represented. In any event the respondent not having entered a response to these proceedings was not entitled to participate.

Prior to commencement of the proceedings, the claimant consented to the case being heard by the Chairman and one panel member in accordance with Article 6(1) (b) of the Industrial Tribunals (Northern Ireland) Order 1996. Further the Tribunal having considered the fact that the respondent was adjudicated bankrupt on the 4th February 2010 and having heard from the claimant decided to hear the complaint on the grounds of unlikely prejudice to creditors.

The Issues:

1. Was the claimant dismissed by the respondent?

2. If the claimant was dismissed:-

(i) What was the reason for the dismissal and was that reason potentially fair within the meaning of Article 130 of the Employment Rights (Northern Ireland) Order 1996? (“The Order”)

(ii) If the claimant was dismissed for a fair reason was that dismissal fair in all the circumstances of the case and the relevant law? If the claimant was dismissed by reason of redundancy, what is her redundancy entitlement?

(iii) If the claimant was unfairly dismissed what compensation, if any, should be awarded to her?

3. Was the claimant given due notice of the termination of her employment contract in accordance with Article 118 of the Order and if not what amount is due to her in respect of notice pay?

4. Is the claimant entitled to holiday pay for holidays accrued and untaken at the date of dismissal?

Findings of relevant fact:

5. The claimant commenced employment with the respondent on the

1 March 2002 and was employed as manageress in a shop owned by him at 2 South Street, Newtownards trading as “Off the Rails”. She was continuously employed until her dismissal on the 11 October 2009.

6. The claimant was informed by the respondent on the 6 October 2009 that the shop was due to close permanently on the following Saturday due to ongoing financial difficulties and her employment was to be terminated with effect from the 11 October 2009. It was her understanding that an administrator was to be appointed to oversee the closing of the business. No disciplinary or dismissal procedures, statutory or otherwise were carried out by the respondent.

7. In the event the shop continued to trade until the respondent was adjudicated bankrupt on the 4 of February 2010. During the period from the 6 October 2009 until February 2010 there was a closing down sale in the shop and the shop was run by members of the respondent's family. There is no evidence that an administrator was ever appointed to the business.

8. The claimant did not receive any notice pay in circumstances where she had accrued an entitlement to 7 weeks notice in accordance with the provisions of Article 118 of the Order .She did not receive any holiday pay in circumstances where she had accrued 2 weeks and 2 days holiday which had not been taken.

9. At the date of dismissal the claimant's weekly pay amounted to £243.75 gross and £203.00 net.

10. The claimant obtained work immediately following dismissal earning £158.67 weekly.

The Law

11. The right not to be unfairly dismissed is enshrined in Article 126 of the Order.

12. Under Article 130A of the Order an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures (“the statutory procedures”) have not been followed due to the employer’s failure.

13. The statutory procedures are contained in the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and were not followed in this case due entirely to a failure on the part of the respondent.

14. In circumstances where the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and if an award of compensation is to be made must comply with the provisions of Article 17 of the Employment (Northern Ireland) Order 2003 which provides for uplift in the amount of compensation awarded.

15. Having found that there was no attempt by the respondent to observe the statutory procedures the provisions of Article 130A apply so as to make this an automatically unfair dismissal.

16. Notwithstanding the fact that the dismissal amounts to an automatic unfair dismissal under Article 130A of the Order, one of the issues to be determined by this Tribunal is the reason for the dismissal.

17. It is the claimant's case that she was dismissed by reason of redundancy and the Tribunal find that to be the case. It is clear from the evidence that it was the respondent's intention at the time of dismissal to cease to carry on the business and the business subsequently ceased to trade.

18. Article 180 of the Order provides the right to a redundancy payment and the tribunal find that the claimant was entitled to redundancy pay under this provision.

19. The amount of redundancy pay is calculated in accordance with Article 197 of the Order which provides in the claimant's case as follows:-

5 (full years employment) x £365.62 (1.5 weeks pay) = £1828.10

+ 2 (full years employment) x £243.75 (1 weeks pay) = £487.50 = £2315.60.

20. Article 118 of the Order provides the period of notice which must be given to terminate the contract of employment and when applied to this case entitles the claimant to 7 weeks notice. The claimant received no notice and is entitled to 7 weeks pay in lieu of notice as follows:-

£203.00 (net weekly pay) x 7= £1421.00.

21. In addition to her redundancy entitlement the claimant is entitled to compensation for unfair dismissal comprising a basic award and a compensatory award. From the basic award must be deducted any award for redundancy payment made by the tribunal in respect of the same dismissal (Article 156(4) of the Order). The net effect of this calculation is that, as the redundancy payment and the basic award are at the same figure, the tribunal makes a basic award of nil to the claimant.

22. Article 157 of the Order makes provision for a compensatory award and provides that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. In circumstances where the claimant was dismissed by reason of redundancy and her place of work effectively disappeared in February 2010, and the Tribunal have not heard from the respondent , the tribunal considers it just and equitable to limit the amount of the compensatory award to the difference in pay earned by the claimant between the date of dismissal and the date upon which the respondent was adjudicated bankrupt i.e. the 4 February 2010.The Tribunal have no evidence of any other loss sustained by the claimant by reason of her dismissal . The Tribunal awards the sum of £753.61 in respect of the compensatory award representing the difference in pay suffered by the claimant during the 17 week period following her dismissal (£203.00- £158.67 x 17).

23. In circumstances where the statutory procedures were not complied with by the Respondent, the Tribunal is required under Article 17 of the Employment (Northern Ireland) Order 2003 to increase any award made to the claimant by 10% and is entitled to increase it up to 50% if it considers it just and equitable to do so. In circumstances where it appears to the Tribunal that statutory procedures were totally ignored by the respondent and in the absence of any explanation by the respondent, the Tribunal find it just and equitable to increase the award by 50%.

Total award in respect of unfair dismissal= £3069.23 + uplift of 50% (£1534.61) = £4603.84

24. The claimant at the date of dismissal was due 2 weeks and 2 days holiday pay for holidays accrued and the Tribunal awards the sum of £487.20 (£203 x 2 + £81.20 [£203 – 5 x 2] under this heading.

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

Chairman:

Date and place of hearing 5 May 2010, Belfast.

Date decision recorded in register and issued to parties:

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