Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/1760_10IT.html
Cite as: [2010] NIIT 1760_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1760/10

CLAIMANT: Patricia Stringer

RESPONDENT: Derek Brennan T/A The Madhatters

DECISION

The unanimous decision of the tribunal is that:-

(i) the claimant was unfairly (unconstructively) dismissed by the respondent. It is ordered that the respondent pay to the claimant the sum of £4,391.06 by way of compensation; and

(ii) the respondent pay to the claimant £367.60 in respect of unlawful deductions from her wages.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Kinnear

Mr R Hanna

Appearances:

The claimant was represented by Mr C Hagan, Barrister-at-Law, instructed by Faloon & Company, Solicitors.

The respondent did not appear and was not represented.

1(i) At the hearing, the claimant alleged that she had been constructively dismissed by the respondent, and furthermore, that he had made unlawful deductions from her wages.

(ii) She was employed as a cook at ‘Madhatters’ in Lurgan from 20 September 2007 until 4 June 2010. The business had changed its name during this time, and ownership had also passed. The respondent was the owner and the claimant’s employer at the time of termination of her employment.

2. We are satisfied that the claimant’s claim of constructive dismissal is well-founded. We find that the respondent, among other things:-

(a) consistently paid her wages late, made errors in the amounts payable, and did not giver her pay-slips on a regular basis;

(b) failed to respond to the claimant’s grievances;

(c) attempted unilaterally to amend her duties by requiring her to do extra work, and threatening to pay her off if she did not do so; and

(d) suspended her for gross misconduct when there was no contractual basis for doing so.

The conduct at (a) above appears to have been directed at the claimant, as other workers did not experience the same problems with their wages as she did.

(ii) We are satisfied that this conduct on the part of the respondent constituted a fundamental breach of her contract of employment which led to her resignation on 4 June 2010. She did not waive any breach of her contract.

3(i) The claimant’s gross pay was £150.00 per week. Her net pay was £140.00 per week. She was aged 43 at the time her employment ended, and had two years complete service.

(ii) She acted promptly to obtain new employment, which she started on 5 July 2010. Her current take home pay is £111.73 per week, a difference of £28.27 per week.

We consider it unlikely that she will obtain better paid employment within the 12 months period from the date of this hearing.

(iii) She invoked the statutory grievance procedure and the employer blatantly failed to comply with her Step 1 letter. In these circumstances we consider an uplift of 40% on the compensatory award to be appropriate. (See Metrobus v Cook [EAT/0490/06].)

4. We proceed to assess her compensation for unfair dismissal as follows, taking into account the mattes set out at Paragraph 4. above:-

(i) Basic award

The basic award is £150.00 x 2 x 1¹/₂ = £ 450.00

(ii) Compensatory award

(a) Loss of earning from 5 June – 5 July 2010-11-15

£140.00 (net) x 4 weeks = £ 560.00

(b) Loss of earnings from 6 July to date of hearing

£28.27 x 18 weeks = £ 508.86

(c) Future loss of earnings for 12 months from

date of hearing

£28.27 x 52 weeks = £1,470.04

(d) Loss of statutory rights = £ 250.00

(e) Adjustment of 40% to

compensatory award = £1,152.16

Total Compensation £4,391.06

5. We further find that the respondent has made unlawful deductions from the claimant’s wages in the amount of £367.60 and order that he do pay the said amount to the claimant.

6. The claimant did not receive any benefit to which the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.

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

Chairman:

Date and place of hearing: 9 November 2010, Belfast

Date decision recorded in register and issued to parties:

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