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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hanna v Jonathan Little [2010] NIIT 85_10IT (04 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/85_10IT.html
Cite as: [2010] NIIT 85_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 85/10
CLAIMANT: Lesley Ann Hanna
RESPONDENT: Jonathan Little
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal (subject to recoupment) award compensation in the sum of £6,060.33 together with notice pay in the sum of £2,240.88 making a total award of £8,301.21.
Constitution of Tribunal:
Chairman : Mrs A Wilson
Panel Member: Mr D Edmont
Appearances:
The claimant was represented by Mr Gorman. Mr Gorman is the husband of the claimant's colleague who has commenced proceedings against the respondent and which proceedings have been consolidated and are being heard together with these proceedings.
The respondent did not appear and was not represented. In any event the respondent not having entered a response to these proceedings was not entitled to participate.
Prior to commencement of the proceedings, the claimant consented to the case being heard by the Chairman and one panel member in accordance with Article 6(1) (b) of the Industrial Tribunals (Northern Ireland) Order 1996. Further the tribunal having considered the fact that the respondent was adjudicated bankrupt
on the 4 February 2010 and having heard from the claimant decided to hear the complaint on the grounds of unlikely prejudice to creditors.
THE ISSUES
1. Was the claimant dismissed by the respondent?
2. If the claimant was dismissed:-
(i) What was the reason for the dismissal and was that reason potentially fair within the meaning of Article 130 of the Employment Rights (Northern Ireland) Order 1996 (the Order)?
(ii) If the
claimant was dismissed for a fair reason was that dismissal fair in all the
circumstances of the case and the relevant law?
If the claimant was dismissed
by reason of redundancy what is her redundancy entitlement?
(iii) If the claimant was unfairly dismissed what compensation, if any, should be awarded to her?
3. Was the claimant given due notice in accordance with Article 118 of the Order and if not what amount is due to her in respect of notice pay.
FINDINGS OF RELEVANT FACT
4. The claimant commenced employment with the respondent on the 14 July 1994 as a stockroom/sales assistant in a shop owned by him at 2 South Street, Newtownards trading as "Off the Rails". She was continuously employed by him until her dismissal on the 7 October 2009.
5. The claimant was informed by the respondent on the 6 October 2009 that the shop was due to close permanently on the following Saturday due to ongoing financial difficulties and her employment was to be terminated with effect from the following day, the 7 October 2009. It was her understanding that an administrator was to be appointed to oversee the closing of the business. No disciplinary or dismissal procedures, statutory or otherwise were carried out by the respondent.
6. In the event the shop continued to trade until the respondent was adjudicated bankrupt on the 4 of February 2010. During the period from the 11 October 2009 until February 2010 there was a closing down sale in the shop and the shop was run by members of the respondent's family. There is no evidence that an administrator was ever appointed to the business.
7. The claimant did not receive any notice pay in circumstances where she had accrued an entitlement to 12 weeks notice in accordance with the provisions of Article 118 of the Order.
8. At the date of dismissal the claimant's weekly pay as set out in her application to the tribunal amounted to £225.00 gross and £186.74 net.
9. Following her dismissal the claimant claimed Jobseekers Allowance for a period of 3 weeks. She commenced employment with Next the retailer on the 1st November 2009 and was employed by them until the 20 February 2010 earning £217.50 weekly gross pay.
THE LAW
10. The right not to be unfairly dismissed is enshrined in Article 126 of the Order.
11. Under Article 130A of the Order an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures (the statutory procedures) have not been followed due to the employer’s failure.
12. The statutory procedures are contained in the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and were not followed in this case due entirely to a failure on the part of the respondent.
13. In circumstances where the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and if an award of compensation is to be made must comply with the provisions of Article 17 of the Employment (Northern Ireland) Order 2003 which provides for uplift in the amount of compensation awarded.
14. Having found that there was no attempt by the respondent to observe the statutory procedures the provisions of Article 130A apply so as to make this an automatically unfair dismissal.
15. Notwithstanding the fact that the dismissal amounts to an automatic unfair dismissal under Article 130A of the Order, one of the issues to be determined by this Tribunal is the reason for the dismissal.
16. It is the claimant's case that she was dismissed by reason of redundancy and the tribunal find this to be the case. It is clear from the evidence that having experienced financial difficulties, it was the respondent's intention at the time of dismissal to cease to carry on the business and the business subsequently ceased to trade.
17. Article 180 of the Order provides the right to a redundancy payment and the tribunal find that the claimant was entitled to redundancy pay under this provision.
18. The amount of redundancy pay is calculated in accordance with Article 197 of the Order which provides in the claimant's case as follows:-
15 (full years employment) x £225.00 (1weeks gross pay) = £3,375.00.
19. Article 118 of the Order provides the period of notice which must be given to terminate the contract of employment and when applied to this case entitles the claimant to 12 weeks notice. The claimant received no notice and is entitled to 12 weeks pay in lieu of notice as follows:-
£186.74 (net weekly pay) x 12 = £2,240.88.
20. In addition to her redundancy entitlement the claimant is entitled to compensation for unfair dismissal comprising a basic award and a compensatory award. From the basic award must be deducted any award for redundancy payment made by the tribunal in respect of the same dismissal (Article 156(4) of the Order). The net effect of this calculation is that, as the redundancy payment and the basic award are at the same figure, the tribunal makes a basic award of nil to the claimant.
21. Article 157 of the Order makes provision for a compensatory award and provides that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. In circumstances where the claimant was dismissed by reason of redundancy and her place of work effectively disappeared in February 2010, and the tribunal have not heard from the respondent, the tribunal considers it just and equitable to limit the amount of the compensatory award to the difference in pay earned by the claimant between the date of dismissal and the date upon which the respondent was adjudicated bankrupt i.e. the 4 February 2010. The tribunal have no evidence of any other loss sustained by the claimant by reason of her dismissal. The tribunal award the sum of £186.74 x 3 = £560.22 representing loss of pay for the 3 weeks following dismissal when the claimant was unemployed and claiming Jobseekers Allowance. The tribunal awards a further sum of £105.00 in respect of the compensatory award representing the tribunals calculation of the difference in pay suffered by the claimant during the 14 week period running from the 1 November 2009 up until the 4 February 2010 being the date upon which the respondent was adjudicated bankrupt. The tribunal base this calculation on the claimant’s evidence of earning £217.50 gross
pay in Next as compared with £225.00 gross pay in the employment of the respondent. This translates into a £7.50 difference in net pay.
22. In circumstances where the Statutory procedures were not complied with by the Respondent , the Tribunal is required under under Article 17 of the Employment (Northern Ireland ) Order 2003 to increase any award made to the claimant by 10% and is entitled to increase it up to 50% if it considers it just and equitable to do so. In circumstances where it appears to the tribunal that statutory procedures were totally ignored by the respondent and in the absence of any explanation by the respondent , the Tribunal find it just and equitable to increase the award by 50%.
Total award: Redundancy entitlement: £3,375.00
Basic Award: Nil
Compensatory award: £ 665.22
Total: £4,040.22
50%uplift: £2,020.11
Total: £6,060.33
23. RECOUPMENT
This is a relevant decision for the purposes of recoupment.
Recoupment of benefit received by the claimant.
The Employment Protection (Recruitment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. Rule 4 (3) of these Regulations require the Tribunal to set out
(a) the monetary award;
(b) the amount of the prescribed element, if any;
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed element.
24. For the purpose of these proceedings the monetary award is £8,301.21. [Basic award + compensatory award + notice pay + uplift]
25.
The prescribed element
is that amount of the monetary award which represents in this case compensation
for loss of earnings up to the
1 November 2009 being the date the claimant found alternative employment. The tribunal
find that the amount of the prescribed element is £560.22 attributable to the
period 7 October 2009 to the 1 November 2009. Accordingly the amount by which
the monetary award exceeds the prescribed element in this case is £7,740.99.
26. The attached Recoupment Notice forms part of the decision of the tribunal.
27. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: 5 May 2010, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 85/10
CLAIMANT: Lesley Ann Hanna
RESPONDENT: Jonathan Little
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE
RECOUPMENT OF JOBSEEKER’S
ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
£
(a) Monetary award 8301.21
(b) Prescribed element 7740.99
(c)
Period to which (b) relates: 7 October 2009 - 1
November 2009
(d) Excess of (a) over (b) 560.22
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the
recoupment notice and should inform the Department of Social Development in
writing within 21 days if the amount claimed is disputed. The tribunal cannot
decide that question and the respondent, after paying the amount under (d) and
the balance (if any) under (b), will have no further liability to the claimant,
but the sum claimed in a recoupment notice is due from the respondent as a debt
to the Department whatever may have been paid to the claimant and regardless of
any dispute between the claimant and the Department.