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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ciurte v Mohammed and Zaheda Khan T/A A... [2010] NIIT 295_10IT (12 October 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/295_10IT.html
Cite as: [2010] NIIT 295_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 295/10
512/10
CLAIMANT: Catalina Ciurte
RESPONDENT: Mohammed and Zaheda Khan
T/A Akbar Restaurant
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent because she had asserted her rights under the Employment Rights (Northern Ireland) Order 1996 (as amended). The respondent is to pay to the claimant compensation of £3,197.20.
Constitution of Tribunal:
Chairman: Mrs M Watson
Members: Mr E Grant
Mr J Patterson
Appearances:
The claimant was represented by Mr M Canavan, Solicitor of McGuinness & Canavan, Solicitors.
The respondent did not appear and was not represented.
1. Mr Canavan provided the tribunal with a copy of a letter written to the tribunal by Daniel A McKenna & Co, Solicitors coming off record for Mr & Mrs Khan, the respondent. Mr Khan had informed them that both of his businesses had closed leaving him in debt and having to apply for benefits.
2. The claimant did not accept that the respondent was no longer trading or had applied for benefits. She believed that the respondent was now trading under a different name.
3. The tribunal was satisfied that the respondent was aware of the proceedings and had decided not to attend or to be represented. The tribunal decided to dispose of the proceedings in the absence of the respondent and took into account the information made available by both parties as required by Regulations 27(5) and (6) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
Claim and Response
4. The claimant lodged two originating applications. The first, Case Ref No: 295/10, was lodged on 3 February 2010 and only accepted in part because the claimant had not waited for the required period after she had lodged a grievance with her employer on 22 January 2010. The claimant had stated that her employment was from 1 April 2009 to 23 January 2010. The detail of her claim included a claim that her employment had transferred to the present respondent when they bought the business from a previous owner. The claimant also claimed she was owed a weeks wages which had been unlawfully deducted and for payment agreed for extra work done but not paid. She also claimed that she had been unfairly dismissed the day after she gave her employer a grievance letter regarding their failure to provide her with itemised pay slips and unlawful deductions.
5. The second claim, Case Ref No: 512/10, referred to the matters raised above that had not been accepted. Both claims were consolidated by tribunal Order dated 15 June 2010.
6. In the response lodged on 9 March 2010, the respondent denied that the claimant had been dismissed and denied that they had received any grievance. They also disputed the employment dates and said that the claimant’s earlier employment had terminated some two months prior to the respondent’s restaurant opening. A letter from the previous owner’s solicitor to that effect was appended along with copies of payslips. It was later acknowledged that the payslips had not been provided to the claimant during her employment. The payslips were dated from 11 December 2009 until 22 January 2010.
7. Paragraph 6.1 of the response form provides space for respondents to provide “any extra information you want us to know”. Mr Khan wrote to refer to the letter from the former employer’s solicitor. None of the other matters raised in the claim form were denied or even referred to.
8. The claimant gave oral evidence and provided a copy of her letter of grievance dated 22 January 2010, a copy of a letter to the respondent from her solicitor dated 4 February 2010 setting out the basis of the grievance and seeking resolution under the modified procedure, copies of the payslips from the respondent and a letter from the claimant’s new employment from 12 February 2010 at £5.83 per hour, £180 per week.
Findings of Fact
9. Having considered the evidential material set out above, the tribunal on the balance of probabilities makes the following findings of fact:
(i) The claimant’s employment with her former employer Mr Hassan terminated in September 2009 when his restaurant was sold. Shortly after that, Mr Khan who had bought the restaurant, interviewed the claimant and offered her a job as manager of his restaurant.
(ii) The claimant’s employment as manager of the Akbar Restaurant began in or about early December 2009. Prior to this date, the claimant had worked on occasion for the respondent in preparation for the Akbar opening and in his takeaway premises. She was paid for hours worked. The tribunal find that this was more in the nature of causal work and not the work of a restaurant manager. The tribunal did not find any evidence of any transfer of undertaking.
(iii) During her employment by the respondent, the claimant agreed to programme the menu into the till and print the drinks menu. She was not paid the £250.00 and £50.00 agreed respectively for these tasks.
(iv) The respondent withheld the claimant’s wage of £209.82 that she should have received on 8 January 2010 for that week’s work.
(v) During her employment the claimant asked the respondent to provide her and the other staff with itemised payslips but despite assurances by Mr Khan that he would ‘sort it out’, none were provided.
(vi) The claimant gave the respondent a letter on 21 January 2010 to request a meeting to discuss her concerns in relation to these matters which she set out in detail. The following day, Mrs Khan told the claimant to clean spillage on the restaurant floor. The claimant agreed to do so after bringing water to a customer. Mrs Khan became angry as did her husband who terminated the claimant’s employment for not carrying out the task when requested.
(vii) During her employment, the claimant’s net pay was approximately £202.00 per week. She did not work on 25 and 26 December 2009 or 1 January 2010. On 12 February 2010, the claimant secured alternative employment where she earns on average £180.00 per week.
(viiii) The Akbar restaurant closed on or about 23 March 2010.
Legal Provisions
10. The Employment Rights (Northern Ireland) Order 1996 [ERO] (as amended) contains most of the legal provisions which regulate employment rights and duties. Article 33 provides that employers are required to provide employees with a written statement of particulars of employment not later than two months after the beginning of the employment. The particulars to be provided in the statement are detailed and include names of both parties, dates of commencement of the employment, remuneration, holiday entitlement etc.
11. Article 34(6) provides that the statement shall be given even if the employment ends before the period within which the statement is required to be given.
12. Article 40 of the ERO gives employees the right “to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement. This statement shall contain particulars of gross and net pay and any deductions” (emphasis added).
13. The above provisions are enforceable through reference to an industrial tribunal for determination under Article 43.
14. Article 45(1) gives employees the right not to have deductions made from their wages. This is enforced by reference to an industrial tribunal under Article 55. Article 56 then provides that if a tribunal finds such a complaint well founded, it shall make a declaration to that effect and shall order the employer to pay the amount of the deduction to the worker.
15. The claimant was employed for just over six weeks by the respondent. Article 118(1)(a) ERO, provides that an employer who terminates the contract of employment of a person who has been continuously employed for at least one month is required to give the employee not less than one weeks notice.
16. Article 135(1)(b) provides that employees are unfairly dismissed if the reason for the dismissal is that the employee alleged that the employer has infringed a relevant statutory right. Any right conferred by the ERO is a relevant statutory right.
17. The requirement under Article 140 of one year’s continuous employment is not required if Article 135(1) applies.
18. Article 130A of the ERO relates to the procedural fairness of dismissals. Employees are regarded as unfairly dismissed if the statutory dismissal procedure was not complied with and the failure to comply was attributable to the employer.
19. The dispute resolution procedures were introduced by the Employment (Northern Ireland) order 2003. Article 17 of the 2003 Order provides for adjustment of awards made by industrial tribunals where the claim relates to any of the jurisdictions listed in Schedule 2 of that Order. Unauthorised deductions and unfair dismissals are included in that Schedule.
20. Where a tribunal finds that a failure to complete the statutory procedure is attributable to failure by the employer, it may increase any award it makes to the employee by between 10% to 50% if the tribunal considers it just and equitable in all the circumstances to do so.
Determination
21. The tribunal determines that the respondent in this case failed to comply with any obligations under the above legislative provisions. The claimant was not provided with any particulars of her post, not given itemised payslips, not paid wages as agreed or for extra duties performed and then dismissed for seeking to address these deficiencies through the grievance procedure.
22. In addition, the respondent failed to follow any element of the statutory dismissal procedures even when invited to do so by the claimant’s solicitor following her dismissal. Nor did they avail of the opportunity provided by the lodgement of these proceedings to give any adequate response to the claims made. In such circumstances, the tribunal has determined that the following heads of compensation are appropriate taking into account the totally unacceptable actions and responses of the respondent in relation to their obligations as employers and the short duration of the claimant’s employment.
Unfair Dismissal
23. Basic Award increased to 4 weeks pay by Article 154 (1A)
[ERO] where dismissal unfair under Article 130A £808.00
Compensation
Repayment of unlawful deductions and payments not made.
(i) Wages unpaid week commencing 3 January 2010 £202.00
(ii) Payment for programming till £250.00
(iii) Payment for printing menu £ 50.00
Notice Pay = 1 week £202.00
Holiday Pay
6 weeks employment 28 ÷ 52 x 6 = 3.23
less 3 days taken = 1 day £ 40.00
Compensatory Award
Loss of wages 23 January 2010 –
12 February 2010 = 3 weeks £606.00
Loss of £22.00 per week from 12 February 2010 to
hearing 31 August 2010 = 26 weeks £572.00
Loss of statutory rights £250.00
Total £2,172.00
Uplift under Article 17 of 2003 Order 10% £217.20
Total Compensatory Award £2,389.20
Total Award £3,197.20
24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 31 August 2010, Londonderry
Date decision recorded in register and issued to parties: