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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gillen v Mr John Matthews [2010] NIIT 7471_09IT (16 December 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7471_09IT.html
Cite as: [2010] NIIT 7471_09IT, [2010] NIIT 7471_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 7471/09
7610/09
CLAIMANT: Marguerite Gillen
RESPONDENTS: 1. Mr John Matthews
2. Mr Brian Kerr
3. Trustees of the Faith Mission and Missionary Training Home, Trevor Matthews, Keith Henry Percival, William John Porter, David Richard Bennett and Joseph McNeilly
DECISION
The unanimous decision of the Tribunal is that the claimant was unfairly dismissed and the Tribunal orders the respondents to pay the claimant the total of £5,333.50.
Constitution of Tribunal:
Chairman: Ms Petra Sheils
Members: Ms Teresa Madden
Mr William Irwin
Appearances:
The claimant appeared in person and was represented by a friend, Ms Mitchell.
The respondents were represented by Ms R Best, Barrister-at-Law, instructed by Hewitt & Gilpin, Solicitors.
1. The claimant lodged two claim forms. The first claim form was lodged on 23 November 2009 and claimed unfair dismissal and harassment. The claimant’s claim for harassment was rejected and the claimant submitted a further claim form on 12 December 2009 claiming sex discrimination and citing the particulars of harassment as previously contained in the first claim form, with some additions.
2. The respondent presented a response on 27 January 2010 in answer to those claims accepting the claimant had been dismissed and denying that she had been subjected to sex discrimination as alleged or at all.
Sources of Evidence
3. The Tribunal heard evidence from the claimant and from Mr John Matthews, General Manager of the Faith Mission Bookshop.
The Hearing
4. At the outset of the hearing the respondent submitted that the claimant’s claim for sex discrimination and/or sexual harassment had been lodged outside the proper time-limits. The Tribunal heard submissions from both parties in relation to this matter, considered the submissions made to it and reached a conclusion that the sex discrimination claim had been presented out of time. The Tribunal gave a ruling to that effect at the time.
5. Subsequently the respondent’s representative indicated that the respondent was conceding that the claimant had been unfairly dismissed. This was in view of their admission that the respondent had not applied any statutory or other dismissal proceedings to the claimant’s dismissal.
6. The Tribunal subsequently heard a remedies hearing and in this regard heard from the claimant and from Mr John Matthews for the respondent.
Failure to mitigate her loss
7. The Tribunal heard from the claimant in this regard and noted that her evidence was that she had not applied for alternative work before July 2010 because she had not felt that she was in any fit state to apply for anything. However, it became clear that the claimant had in fact applied for a post as early as January 2010 and had been hopeful that this post would constitute what she called ‘Plan B’ post her dismissal. Although the claimant had been unsuccessful in obtaining this post, the claimant accepted that if she had got it she would have thought herself in a fit state to work. Accordingly, the Tribunal accepted that the claimant had been in a fit state to apply for and even consider carrying out other jobs prior to July 2010 and found that the claimant had failed to mitigate her loss.
Absence of procedure
8. The Tribunal heard from Mr John Matthews who accepted honestly that the respondent had not conducted any dismissal procedure in respect of the claimant’s dismissal. Mr Matthews indicated that the respondent had sought advice from a Dr Pinkington in Scotland who, from time to time, provides employment advices. The Tribunal noted that Dr Pinkington was a medical doctor and noted that she acted as a volunteer within the organisation and did not occupy any professional human resource role within it.
9. Mr Matthews also acknowledged that the respondent had not contacted the Labour Relations Agency or sought any other legal advices in relation to the claimant’s dismissal.
10. The Tribunal noted that the Faith Mission Bookshop and Missionary Home employed over 90 employees between Northern Ireland and Scotland, the majority of those employees being in Northern Ireland. The Tribunal also noted that the organisation was sufficiently big to have a role of a general manager and concluded that as this had been the case it was unacceptable that the respondent had failed to apply any statutory or other dismissal procedures in this case.
Compensation
11. In line with the statutory provisions for compensation under The Employment Rights (Northern Ireland) Order 1996 the Tribunal awarded the claimant the following:-
Basic award
4 weeks x £43 £ 172.00
Compensatory award
From 13 July 2010 – 27 September 2010 – 11 weeks x £43 £ 473.00
Future loss
The Tribunal considered that in this climate it would be highly unlikely that the claimant would be able to obtain alternative work in the next two years. Accordingly, the Tribunal awarded future loss at:-
52 weeks x £43 £2,236.00
Loss of employment rights £ 500.00
Loss of staff discount (unchallenged) £ 60.00
Right to a written contract of employment (conceded)
4 x £43 £ 172.00
Total compensatory award £3,441.00
Uplift
The Tribunal decided that it would uplift the claimant’s award in this case by 50%, a sum of £1,720.50. In so doing, the Tribunal noted that this was not a case where there has been a procedural mishap or where procedures have been misapplied. The Tribunal noted that it was conceded by the respondent that there were no dismissal procedures in place and no proper consideration was given to seeking employment advice or advice on other procedures from, for example, Labour Relations Agency.
The Tribunal makes this uplift in the context that this is an organisation of almost 100 employees and is therefore of a considerable size. The Tribunal considered that such an organisation ought to have had the proper procedures in place and the staff trained on how to operate them properly.
The Tribunal also took account of the respondent’s failure to seek professional advices given its size and having a general manager position, or similar, in place, which role ought to have been responsible for such procedures. Accordingly, the Tribunal awards the claimant an uplifted sum of £5,161.50.
12. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 27 September 2010, Belfast
Date decision recorded in register and issued to parties: