Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   6950/09

 

 

 

CLAIMANT:                      Suzanne Simpson

 

 

RESPONDENTS:              1.       Freebird Distribution Ltd

                                        2.       Ian Brown t/a Freebird Distribution Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the first named respondent and that in breach of the claimant’s contract of employment the first named respondent failed to give notice and pay holiday pay due on termination of the claimant’s employment.  The first named respondent shall pay the claimant £4,435.80.

 

Constitution of Tribunal:

Chairman:              Ms Bell        

Members:              Mr White

                              Mrs Doran

         

Appearances:

The claimant was represented by Mr Stewart, Barrister-at-Law, instructed by Bernard Campbell & Company, Solicitors.

 

The first named respondent did not appear and was not represented.

 

The second named respondent did not appear and was not represented.

 

1.       The claimant consented at commencement of the hearing for the proceedings to be heard and determined by a tribunal composed of the Chairman and one panel member under Rule 5(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 

2.               The claimant complained in her claim that she had been unfairly dismissed, that she did not believe that the reason given of redundancy was genuine, that her dismissal was procedurally unfair, and she had not received a redundancy payment, notice, or holiday pay on termination of her employment. 

 

3.               No response has been received from either the first named or second named respondent.

 

ISSUES FOR THE TRIBUNAL

 

4.               The issues for the tribunal were as follows:

 

(1)            Was the claimant unfairly dismissed?

 

(2)            Has the respondent in breach of the claimant’s contract of employment failed to give the claimant notice and pay the claimant holiday pay?

 

(3)            Is the claimant otherwise entitled to a redundancy payment?

 

EVIDENCE

 

5.               The tribunal considered the claim, documentation presented on behalf of the claimant and heard the claimant’s oral evidence.

 

FACTS FOUND

 

6.       The claimant was employed as an office administrator by the first named respondent from September 2006 until her dismissal on 12 June 2009.  The claimant’s employment was initially with BP Holding but later transferred to Freebird Distribution Limited.  At the termination of her employment the claimant worked 16 hours per week and received £92 net per week.

 

7.               The claimant underwent shoulder surgery on 8 May 2009 and was due to be absent from work until the end of September 2009.  However on 11 June 2009 the claimant received a letter written by the second named respondent on behalf of the first named respondent terminating her employment by reason of redundancy from
12 June 2009.  No warning had been given, no consultations took place, there was no meeting arranged with the claimant, no right of appeal given and no redundancy payment was paid to the claimant by either respondent.

 

8.               The claimant does not believe that a genuine redundancy situation existed but that she was dismissed because of concern that she knew too much about the first named respondent Company’s business dealings.

 

9.               Following termination of her employment the claimant received a payment of £75.40 on 19 June 2009 being one weeks sick pay due to her up to 12 June 2009.

 

10.           In June 2009 following termination of her employment the claimant made enquiries about claiming statutory sick pay but was unable to do so due to insufficient national insurance contributions. 

 

11.           The claimant applied for other jobs after her dismissal but was unsuccessful.  In July 2009 she registered as self-employed, backdating her registration to 15 June 2009 but was unable to commence working for herself following her operation until the end of September 2009.  Since the last week in September the claimant earned on average £55 net per week for 16 weeks for ironing clothes.  The claimant had no income for approximately two weeks in December due to less ironing being provided by her four regular clients.  In January 2010 the claimant earned £90 net for painting and decorating work. 

 

12.     During the claimant’s employment her holiday year ran from January to December.  In 2009 the claimant had not taken any holidays prior to termination of her employment.

 

13.     The claimant sought an order for compensation only.

 

THE LAW

 

14.     The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal.  The standard procedure consists of three steps, in summary requiring an employer to provide an employee at Step 1 with a written statement of grounds for action and an invitation to a meeting, at Step 2 a meeting and at Step 3 an appeal.

 

15.     By virtue of Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.  Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined, however under Article 130A(1) “an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

 

(a)       one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,

 

(b)       procedure has not been completed, and

 

(c)       the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”

 

16.     Where an industrial tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the orders it may make are set out at Article 146 of the 1996 Order and include orders for re-instatement or re-engagement and otherwise compensation.  How compensation is to be calculated is provided in Articles 152 to 161.

 

17.     Under Article 154(1) of the 1996 Order where an employee is regarded as unfairly dismissed by virtue of Article 130A(1) the industrial tribunal shall increase the basic award to a minimum of four weeks pay.

 

18.     There is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which includes Article 145 of the 1996 Order (Unfair Dismissal)] by an employee where it appears to the industrial tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.

 

19.     Under Article 118(1) of the 1996 Order  minimum notice to be given by an employer to an employee to terminate the contract of employment is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

 

20.     A breach of contract claim arising or outstanding on termination of an employee’s employment may be brought before an industrial tribunal under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

 

21.     The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulations 13 and 13A for a worker to have minimum leave in a year of 4.8 weeks from 1 October 2007 and 5.6 weeks from 1 April 2008.

 

22.     Under Regulation 14(2) of the 1998 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.

 

APPLICATION OF LAW TO FACTS FOUND

 

23. The tribunal is satisfied on the basis of the claimant’s undisputed evidence that even had a genuine redundancy situation actually existed, the first named respondent has clearly failed to follow the bare minimum statutory procedure required where an employer is contemplating a dismissal, merely writing to the claimant on 11 June 2009 informing her that she was being made redundant as from the next day.  The tribunal accordingly finds that the claimant’s dismissal was automatically unfair under Article 130A(1) of the 1996 Order, the non-completion of the applicable dismissal and disciplinary procedures being wholly attributable to the failure of the first named respondent to comply with its requirements.  The tribunal is also satisfied in the alternative that the claimant’s dismissal was unfair under Article 130 of the 1996 Order the first named respondent having failed to show either redundancy as referred to in its correspondence or another potentially fair reason under the Order such as to justify the dismissal.  As the claimant’s basic award would amount to less than four weeks pay the tribunal increases the basic award to an amount equal to four weeks pay under Article 154 of the 1996 Order.  The tribunal furthermore considers that it is just and equitable in all the circumstances of this case to increase the award for unfair dismissal by 30% in light of the first named respondent’s complete disregard for the statutory dispute resolution procedures.

 

24.     The tribunal is satisfied that the first named respondent has breached the claimant’s contract of employment in failing to give her statutory minimum notice entitlement of two weeks notice to terminate her contract of employment. 

 

25.     The tribunal furthermore finds that the first-named respondent has breached the claimant’s contract of employment by failing to pay her for holidays due on termination of her employment based on the statutory minimum holiday entitlement provided under the Working Time Regulations.

 

26.     The tribunal accordingly orders the first named respondent to pay the claimant compensation as follows:-

 

COMPENSATION FOR UNFAIR DISMISSAL

 

Basic Award

 

4 weeks X £92 =                                                                                     £ 368

 

Compensatory Award

 

Loss of Earnings

         

Anticipated income 16/6/09 – 25/9/09

 

15 weeks sick pay @ £75.40 = £1,131

16 weeks pay @ £92             = £1,472

       £2,603

 

Actual income

 

11 weeks @ £55 + £90          = £   695

 

Balance loss of earnings                                                                          £1,908

 

Loss of statutory rights

 

1 weeks pay @ £92 =                                                                              £      92

 

Future loss

         

The tribunal consider it just and equitable to award the claimant compensation for

26 weeks @ (£92 - £55) =                                                                       £   962

 

Total compensatory award before uplift =                                                  £2,962

 

30% uplift =                                                                                             £888.60  

 

Total compensatory award for unfair dismissal =                                      £3,850.60

 

Failure to give notice

 

[2 weeks pay @ £92] – [2 weeks sick pay @ £75.40 already included

in compensatory award] =                                                                          £  33.20

 

Holiday Pay

 

January to June 2009

 

[3/12 months X 4.8 weeks] + [2/12 X 5.6 weeks] = 2 weeks

2 weeks @ £92 =                                                                                      £  184

 

 

CONCLUSION

 

27.     The tribunal finds that the claimant was automatically unfairly dismissed by the   first-named respondent and has suffered a breach of her contract of employment by the first-named respondent’s failure to give her notice and to pay her holiday pay and orders the first named respondent to pay the claimant compensation of £4,435.80.

 

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

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:         18 January 2010, Belfast

 

 

Date decision recorded in register and issued to parties: