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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Doggart v Pressed for Time (Northern Ire... [2010] NIIT 7440_09IT (10 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7440_09IT.html
Cite as: [2010] NIIT 7440_9IT, [2010] NIIT 7440_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7440/09
CLAIMANT: Margaret Doggart
RESPONDENT: Pressed for Time (Northern Ireland) Limited
DECISION
The unanimous decision of the tribunal is that the claimant’s dismissal was automatically unfair and the respondent shall pay the claimant £3,079.77.
Constitution of Tribunal:
Chairman: Ms M Bell
Members: Mr P McKenna
Appearances:
The claimant appeared in person and represented herself.
The respondent did not appear and was not represented.
1. The claimant consented at the 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 Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
2.
The claimant in her claim
complained that she was dismissed unfairly and in breach of her contract by
Charley Carson and Maeve Killingbeck trading as Pressed for Time. At hearing
the claimant confirmed that her complaint related only to unfair dismissal and she
sought compensation only by way of remedy. From all documentary evidence
produced at hearing it appears that the claimant was employed by Pressed for
Time (Northern Ireland) Ltd and the title of proceedings are accordingly
amended from ‘Margaret Doggart-v-Charles Carson and Maeve Killingbeck, T/A
Press for Time’ to ‘Margaret Doggart-v-Pressed for Time (Northern
Ireland) Ltd’.
3. No response was presented to the Office of the Tribunals by Charley Carson or Maeve Killingbeck or the respondent company in accordance with Rule 4 of the Industrial Tribunal Rules of Procedure at Schedule 1 of the 2005 Regulations.
Issues for the Tribunal
4. The issue for the tribunal was whether the claimant was unfairly dismissed by the respondent.
Evidence
5. The tribunal considered the claim, documentation presented by the claimant and heard the claimant’s oral evidence.
Facts Found
6. The claimant, born on 23 May 1970 was employed as a Presser by the respondent from early July 2007 until her employment was terminated on 17 September 2009. The claimant worked a total of twelve hours per week over four days and was paid gross pay of £68.76 per week being £68.76 net.
7.
The respondent’s business was run
by Charley Carson and Maeve Killingbeck but all payslips, the P60 for the tax
year 2008/2009 and P45 provided following termination of the claimant’s
employment identified the claimant’s employer as Pressed for Time (Northern
Ireland) Limited.
8. On 16 September 2009 the claimant was called by Mr Carson and Ms Killingbeck into their office where Mr Carson and Ms Killingbeck told the claimant they thought that she was working too fast as she had completed 3½ hours pressing work, judged by weight, in 3 hours, and asked the claimant to slow down and take more care as they had received a complaint from a client about her work. The claimant was concerned because she felt that her work was of a good standard but agreed to take more care. This complaint took the claimant by surprise as her work had not been criticised before and she asked Mr Carson and Ms Killingbeck whether there had been any other complaint, they confirmed that there had not. The claimant was not given any formal verbal warning.
9. On 17 September 2009, after the claimant completed her normal shift she was called into the office again by Mr Carson and Ms Killingbeck and informed that they had to let her go because they had lost three clients due to her poor workmanship. The claimant was not told in advance about this meeting, nor that her dismissal was being considered, she did not receive any written warning about her work, she was not invited to the meeting in writing setting out grounds for action and was not given the opportunity to appeal the dismissal decision.
10. Following her dismissal the claimant wrote to Mr Carson and Ms Killingbeck on
23 September 2009 requesting the reason in writing for their decision. A reply was sent on behalf of the respondent, on paper headed “the Bangor Laundry” to the claimant’s correspondence confirming that the reason for her dismissal was poor workmanship, and came about because of continuing customer complaints and specifically a major complaint from a long standing customer. It was indicated that she had been made aware of poor workmanship issues earlier that week and “obviously chose to ignore the verbal warning”. Reference was also made to other issues resulting in absenteeism and poor workmanship, none of these matters had previously been put to the claimant.
11. The claimant had two other part-time jobs whilst she was employed by the respondent, these jobs are continuing and her hours of work in respect of them have not changed. The claimant has looked for other employment following her dismissal by the respondent but has not been able to find other additional work. The claimant has not received any benefits following her dismissal.
The Law
12. 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, as follows:-
Step 1: Statement of grounds for action and invitation to meeting.
(1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: Meeting
(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) The employer has informed the employee what the basis was for
including in the statement under paragraph 1(1) the ground or grounds given in it and (b) the employee has had a reasonable opportunity to consider his response to that information.
(3)
The employee must take all
reasonable steps to attend the meeting.
(4) After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: Appeal
(1) If the employee does not wish to appeal, he must inform the employer.
(2) If the employee informs his employer of his wish to appeal, the
employer must invite him to attend a further meeting.
(3)
The employee must take all
reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
13.
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.”
14.
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
reinstatement or re-engagement and otherwise compensation. How compensation is
to be calculated is provided in Articles 152-161.
15.
Under Article 154(1) of the 1996
Order where an employee is regarded as unfairly dismissed by virtue of Article
130(A), the Industrial Tribunal shall increase the basic award to a minimum of
four weeks pay.
16. 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 50%.
Application of Law to Facts Found
17.
The Tribunal is satisfied on the
basis of the claimant’s undisputed evidence that the respondent has clearly
failed to follow the applicable statutory procedure required as a bare minimum
where an employer is contemplating a dismissal, the respondent having proceeded
straight to a disciplinary meeting without writing to the claimant with a
statement of grounds for action and an invitation to a meeting and furthermore
following dismissal failing to provide the claimant with any appeal. The
tribunal is satisfied that the non-completion of the applicable dismissal and
disciplinary procedure is wholly attributable to the failure of Mr Carson and
Ms Killingbeck on behalf of the respondent, to comply with its requirements and
accordingly finds that the claimant’s dismissal was automatically unfair under
Article 130A(1) of the 1996 Order. The tribunal is also satisfied in the
alternative that the claimant’s dismissal was unfair under Article 130 of the
1996 Order, the respondent having failed to show a potentially fair reason
under the Order such as to justify the dismissal. As the claimant’s basic
award amounts 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
40% in light of the respondents complete disregard for the statutory dispute
resolution procedures.
18.
The tribunal accordingly orders
the respondent to pay the claimant compensation as follows:-
19.
Basic Award
Four weeks by £68.76 =
£ 275.04
Compensatory Award
Loss of Earnings – 17 September 2009 to date of hearing
25½ weeks at £68.76 =
£1,753.38
Loss of Statutory Rights
£ 250.00
Total Compensatory Award £2,003.38
Uplift of the 2003 Order
40% uplift on compensatory award £2,003.38 = £
801.35
Total Award
£3,079.77
Conclusion
20.
The tribunal finds that the
claimant was automatically unfairly dismissed by the respondent and orders the
respondent to pay the claimant compensation of £3,079.77.
21. This is a relevant decision for the purposes of the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 15 March 2010, Belfast.
Date decision recorded in register and issued to parties: