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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Murray v George Harrison trading as Bel... [2010] NIIT 7254_09IT (29 March 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7254_09IT.html
Cite as: [2010] NIIT 7254_09IT, [2010] NIIT 7254_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7254/09
CLAIMANT: Sasha Murray
RESPONDENT: George Harrison trading as Bella Bella
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to compensation as set out in the Schedule below amounting to £9,690.09.
Constitution of Tribunal:
Chairman: Mr P Cross
Members: Miss A Hamilton
Mr J Welsh
Appearances:
The claimant was represented by Mr N Richards, Barrister at Law, instructed by Messrs Richard Barbour & Company, Solicitors.
The respondent was not represented and did not appear at the hearing.
Findings of fact
1. The claimant who was born on 1 July 1977, commenced employment as a sales advisor with the respondent, who operated and owned a number of shops in Northern Ireland, on 8 January 2007. Her salary was £1,083.00 per month gross, £897.00 net. One of the conditions of her employment was that she could be called upon to work in any of the respondent’s stores.
2. The claimant was employed in the shop known as Hobbs on the Lisburn Road, Belfast. On 15 July 2009 she was at home on a days leave. She had occasion to telephone the office to discuss holiday dates with the manageress, Katherine Boon. During the course of this conversation, Ms Boon told her that she was about to telephone the claimant to tell her not to come into work the next day as there was a problem with the franchise owners, Hobbs, and that the shop would be closed. The claimant was very concerned at this news and on the next day went to the Lisburn Road and drove past the shop only to find it open with customers inside.
3. The claimant telephoned the shop to find out what was her situation. Ms Boon answered the phone and said that she did not know what the situation was but that the owner, the respondent, would be contacting her later in the day. The claimant then spoke to the respondent who told her that she had lost her job as he had lost his franchise with Hobbs. The claimant asked if the respondent had any jobs in any of his other shops, the respondent answered no. The claimant understood this to mean that she had been dismissed and started to seek alternative employment. Almost immediately the Hobbs shop, in which the claimant had worked before her dismissal, was re-branded as Harrison and opened for business.
4. From 27 July to 15 November 2009 the claimant obtained work at Fran and Jane on the Lisburn Road. From 16 November to 29 January she worked for LK Bennett in Victoria Square, Belfast. These were both temporary contracts. At the date of the tribunal the claimant was not working. She has been actively seeking work.
The law
5. The claimant claims that she was unfairly dismissed. Under the provisions of Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order):-
“An employee has a right not to be unfairly dismissed by his employer”.
Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question.
6. Certain dismissals are declared by Statute to be automatically unfair. One such is where the employer fails to comply with the terms of Article 130A of the 1996 Order. This states that a dismissal is to be regarded as unfair, if one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’), has not been complied with and the non-compliance is wholly or mainly attributable to the failure of the employer/respondent. The procedure referred to in Schedule 1 of the 2003 Order provides for the employer to give written information to the employee as to its reason for wishing to terminate the employment of the employee and to invite the employee to a meeting to discuss the matter. The meeting must take place before the action of dismissal is implemented and if the employee is still intent on dismissing the employee it must give the employee a right of appeal. If it fails to carry out this procedure then the subsequent dismissal is automatically unfair. This is known as a failure to follow the statutory dismissal procedure.
7. If the tribunal is satisfied that the claimant has been unfairly dismissed, it can award the claimant compensation, payable by the respondent. The tribunal, if the statutory procedures are not complied with, must increase the award of compensation that it makes by 10 per cent, (Article 17 of the 2003 Order). The tribunal also has power, under the same Article, to increase the award by a further percentage, up to 50 per cent, if the tribunal considers it just and equitable to do so. Furthermore the tribunal must award the claimant a sum equal to four weeks salary as the basic award, if the basic award would otherwise be less than four weeks, if the respondent has failed to implement the statutory dismissal procedure, unless the tribunal decides that it would be unjust and inequitable to award so. (Article 146 of the 1996 Order).
Decision
8. In this case the claimant was dismissed in the most callous way. She was left to find out that her job had gone in the shop in which she worked and that the shop was to close. The next day she found the shop was open. She then had to telephone the respondent to find out, over the telephone, that she was dismissed. The shop was then re-branded and has continued to trade. This tribunal recognises that trading conditions are difficult in the retail sector but it is hard to find an excuse for the respondent, to justify such treatment of an employee. Although the respondent did respond in writing to the tribunal in his response to the claimant’s claim, he has not appeared before the tribunal to give an explanation as to why no fair redundancy selection process was implemented.
9. The tribunal is satisfied that the claimant was unfairly dismissed and award compensation as set out in the Schedule below. In accordance with Article 17 of the 2003 Order the tribunal increases its award by 30 per cent to reflect the failure of the respondent to comply with the statutory procedures. The tribunal also awards four weeks salary on the basic award to again reflect the respondent’s complete disregard for the statutory dismissal procedure.
10. With regard to future loss the tribunal heard that the claimant was able to obtain some temporary employment after her dismissal. Indeed one of the contracts paid her a greater salary than that which she earned with the respondent and the tribunal have given credit for that in the calculation set out below. However the claimant’s last contract terminated just before the tribunal hearing. The tribunal mindful of the present downturn in the retail sector and satisfied that the claimant continues to make every effort to obtain employment award the claimant six months future loss.
11 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990
Schedule
Calculation of compensation
Basic award
Length of service at effective date of termination (EDT) 16 July 2009 was 2 years and 6 months.
The claimant was 32 years of age at EDT.
Her gross weekly pay was £250.00. Relevant multiplier 2= £500.00
Increase to basic award for failure to follow Statutory
Dismissal Procedure, making a total of 4 weeks pay £1,000.00
Less payment made for redundancy by respondent to
claimant at dismissal. £ 500.00
------------------
Total Basic Award £ 500.00
Compensatory Award
These calculations are based on the claimant’s net pay from the respondent at EDT being £207.00 per week.
Loss of earnings from 16 07 09 to her first part-time
employment one week £207.00
Loss of earnings from 27 07 09, first part-time job, to 15 11 09,
16 weeks
Her average weekly earnings in that job were £97.00
Loss was thus £207.00 - £97.00 = £110.00 x 16 £1760.00
Increase in earnings from 16 11 09 to end of second part-time employment
Actual earnings for this period £2,563.70.
What claimant would have earned in 11 weeks at £207.00
£2,277.00. Gain over the period - £286.70
Loss of earnings from end of second part-time employment
To the date of hearing one week at £207.00 £207.00
Total net loss of earnings to the date of hearing giving credit for the
Net gain of £286.70 --------------
£1,887.30
Future loss of earnings 26 weeks at £207.00 £5,382.00
Loss of statutory rights £300.00
--------------
£7,569.30
Less paid by respondent to claimant in lieu of notice £ 500.00
-------------
Total compensatory calculation £7,069.30
This sum of £7069.30 is to be increased by 30% to reflect the respondent’s failure to observe the Statutory procedure.
£7,069.30 + 30% thereof £2,120.79 = £ £9,190.09
Total compensation due
Basic Award £ 500.00
Compensatory Award £9,190.09
-----------------
£9,690.09
Chairman:
Date and place of hearing: 10 February 2010, Belfast
Date decision recorded in register and issued to parties: