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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cunningham v James Fatogun t/a Ruby Tuesday... [2010] NIIT 7555_09IT (11 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7555_09IT.html
Cite as: [2010] NIIT 7555_09IT, [2010] NIIT 7555_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7555/09
CLAIMANT: Sarah Catherine Cunningham
RESPONDENT: James Fatogun t/a Ruby Tuesdays Restaurant
DECISION
It is the unanimous decision of the tribunal that the claimant was unfairly dismissed, the respondent shall pay the claimant £2,865.60.
Constitution of Tribunal:
Chairman: Ms M Bell
Members: Mrs K Elliot
Mr J Welsh
Appearances:
The claimant appeared and represented herself.
The respondent did not appear and was not represented.
THE CLAIM
1. The claimant in her claim complained that she had been unfairly dismissed by the respondent.
2. No response has been presented by the respondent.
3. Based on the claimant’s confirmation that her employer was Mr James Fatogun the title of the proceedings are accordingly amended from ‘Sarah Catherine Cunningham v 1. Ruby Tuesdays Restaurant 2. James Fatogun 3. Solomon Chouldrey’ to ‘Sarah Catherine Cunningham v James Fatogun t/a Ruby Tuesdays Restaurant’.
ISSUES FOR TRIBUNAL
4. The issue before the tribunal was whether the claimant was unfairly dismissed?
EVIDENCE
5. The tribunal considered the claim, documentation from the claimant and heard oral evidence from the claimant.
FINDINGS OF FACT
6. The claimant, born on 19 October 1978, is employed as a special needs classroom assistant for 39 weeks per year.
7. To supplement her income the claimant began employment with the respondent in March 2007 as a waitress at which time it was agreed that the claimant would work two eight hour shifts a week. During school holidays the respondent, at the claimant’s request, provided additional shifts for her to work, but was not contractually obliged to do so. On termination of her employment the claimant’s pay from the respondent for her contractual hours was on average of £92 gross per week, being £57.60 net. No written statement of particulars of employment was given by the respondent to the claimant.
8. Between January and July 2009 the claimant had a relationship with the respondent’s restaurant manager, Mr Solomon Chouldrey. The claimant gave evidence that Mr Chouldrey is currently awaiting trial on charges of grievous bodily harm against her.
9. The claimant ended her relationship with Mr Chouldrey in July 2009 and the respondent accommodated a change in the claimant’s working shifts to allow her to avoid contact with Mr Chouldrey at work.
10. On Monday 21 September 2009 the claimant received a telephone call from the respondent, he informed the claimant that there was no more work for her and he hung up. The claimant was shocked at the respondent’s call which came completely out of the blue.
11. The claimant called at the respondent’s premises on 26 September 2009 to seek an explanation from the respondent as to the reason for her dismissal. The respondent was apologetic and explained that Mr Chouldrey had contacted the respondent’s wife and made untrue allegations about the claimant having an affair with the respondent. The respondent assured the claimant that the situation would be sorted out and she would be paid in the interim. The claimant did not however hear anything further from the respondent or receive any pay.
12. On 20 October 2009 the claimant sent the respondent a grievance letter seeking an explanation for her dismissal and copy contract of employment but no response was received.
13. The claimant has been unable to find other employment to supplement her income in addition to her main job since her dismissal by the respondent save for two days childminding during the Easter school holidays.
14. The respondent’s restaurant in which the claimant was employed closed in or around the end of January 2010.
15. The claimant sought by way of remedy compensation only.
THE LAW
Statutory Minimum Procedures and Unfair Dismissal
16. 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.
17. 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. Where an industrial tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the orders it may make by way of remedy are set out at Article 146 of the 1996 Order and include reinstatement, or re-engagement, and otherwise compensation. How compensation is to be calculated is set out at Articles 152 to 161.
18. Article 154(1A) of the 1996 Order provides that where an employee is regarded as unfairly dismissed by virtue of Article 130A(1) the industrial tribunal shall increase the basic award where the amount is less than four weeks’ pay to the amount of four weeks’ pay save as provided at 1(B).
19. Under Article 154(1) of the 1996 Order where an employee is regarded as unfairly dismissed 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%.
APPLICATION OF LAW TO THE FACTS FOUND
20. The tribunal is satisfied that the standard procedure under the statutory dismissal and disciplinary procedures was applicable but based on the claimant’s undisputed evidence the respondent made no attempt to follow the required statutory minimum dispute resolution procedure which he was obliged to follow before a dismissal was implemented, the respondent simply telephoning the claimant without forewarning and dismissing her. Clearly no invitation was given to the claimant in writing to a meeting setting out grounds for action before her dismissal, nor any opportunity given to formally appeal the decision thereafter.
21. The tribunal finds that the claimant’s dismissal was automatically unfair under Article 130A(1) of the 1996 Order the non-completion of the dismissal and disciplinary procedures being wholly attributable to the blatant failure by the 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 respondent not having shown a 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 25% under Article 17 of the 2003 Order in light of the first named respondent’s complete disregard for the statutory dispute resolution procedures.
22. The tribunal accordingly orders the respondent to pay the claimant compensation as follows:-
COMPENSATION FOR UNFAIR DISMISSAL
Basic Award
The tribunal orders the respondent to pay a basic award for unfair dismissal of four week’s gross pay under Article 154(1A) of the 1996 Order being £368.00.
4 weeks X £92 = £ 368.00
Compensatory Award
Loss of Earnings
The tribunal consider it just and equitable to award the claimant compensation from her effective date of termination, 21 September 2009 up to closure of the restaurant in or around the end of January 2010 when her employment would otherwise have come to an end, say
19 weeks @ £92 = £1748.00
Loss of statutory rights
£ 250.00
Uplift under Article 17
Total compensatory award before uplift = £1,998.00
25% uplift = £ 499.50
Total compensatory award = £2497.50
CONCLUSION
23. The tribunal finds that the claimant was automatically unfairly dismissed by the respondent under Article 130A(1) of the 1996 Order. The respondent shall pay the claimant the following compensation:-
BASIC AWARD £ 368.00
COMPENSATORY AWARD (£2,497.50
TOTAL (£2,865.50)
24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 13 April 2010, Belfast
Date decision recorded in register and issued to parties: