Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

      

CASE REF:    442/11

 

 

CLAIMANT:                      Deirdre Baxter

 

RESPONDENT:                Peter McNeill

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant is entitled to a redundancy payment, unpaid wages, holiday pay and compensation for unfair dismissal as set out in the Schedule below.

 

 

 

Constitution of Tribunal:

 

Chairman:                        Mr P Cross

 

Panel Members:               Mr B McCreight

                                        Mr I Savage

 

 

 

Appearances:

 

The claimant appeared in person and was not represented.

 

The respondent did not appear and was not represented.

 

 

FINDINGS OF FACT

 

1.       The claimant, who was born on 10 September 1963 commenced employment with the respondent as a shop assistant on 6 March 2000 and was dismissed by the respondent on 16 December 2010.

 

2.       The claimant was given no notice of her dismissal but was called into the shop on 16 December 2010 and was told that the shop was closing down.  The claimant worked 30 hours a week and was about to go on holiday leave.  She never received her pay for the holiday or any notice pay.  The claimant was merely told that the shop was closing and that her job was finished.  There was still stock in the shop.  However the claimant was asked to leave immediately.

 

3.       The claimant wrote to the respondent setting out her claim for a redundancy payment, notice pay and holiday pay, but received no response whereupon she commenced these proceedings.

THE LAW

 

4.       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.  In this case the reason for the dismissal was given to the claimant as redundancy, as the shop was to close.

 

5.       Article 198 of the 1996 Order gives the employee, dismissed in these circumstances a right to a redundancy payment, to be determined by the tribunal.

 

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 his 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 he must give the employee a right of appeal.  If the employee 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.       Article 130A (2) of the 1996 Order states that if the employer, who fails to follow the statutory dismissal procedure, can show that he would have dismissed the employee in any event then the dismissal shall not be considered automatically unfair.  Furthermore if the tribunal comes to the conclusion that despite the unfair treatment on the part of the employer the claimant would have been dismissed, if a fair process had been adopted, then under the guidance set down in the case of Polkey  v  AE Dayton Services Limited 1987 [IRLR] 503, the tribunal must reduce the compensation awarded to reflect the fact that the employee’s employment would come to an end at an early date.

 

8.       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%, (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%, if the tribunal considers it just and equitable so to do.

 

9.       Furthermore, if the  respondent has failed to implement the statutory dismissal policy, the tribunal must award the claimant a sum to bring his basic award up to 4 weeks salary, if the claimant’s basic award would have been below 4 weeks salary.  This is unless the tribunal decides that it would unjust and inequitable to so award.  (Article 146 of the 1996 Order.)

 

DECISION

 

10.     The tribunal is satisfied that the claimant was made redundant when the respondent closed the business.  She is therefore awarded a redundancy payment as calculated in the Schedule hereto.

 

11.     The claimant is also entitled to two weeks holiday pay and notice pay, all set out in the Schedule.

 

12.     The tribunal is satisfied that the claimant was unfairly dismissed and award compensation as set out in the Schedule below.  There is no basic award as the claimant has been awarded a redundancy payment.  The compensatory award is set at 2 weeks loss of pay, as the tribunal hold that the business was going to close in a short period after the time that the claimant was dismissed.  The tribunal cannot see how the business would have survived for more than 2 weeks and the claimant would have been made redundant in any event.  The tribunal cannot say when the business would have closed had the respondent dealt with the redundancy in a proper way, but the evidence from the claimant was that the respondent was not paying suppliers and thus stocks were not being replenished.  Accordingly the tribunal holds, that although this is not a case where Article 130A (2) applies, as there was no evidence from the respondent concerning the closing of the business and thus the respondent did not discharge the evidential burden placed upon him by this Article, the rule in the Polkey case does apply and the compensatory award is limited to 2 weeks pay.  In accordance with Article 17 of the 2003 Order the tribunal increases its compensatory award by 50% to reflect the failure of the respondent to comply with the statutory procedures.  The tribunal considers the respondent’s conduct in dismissing the claimant, shortly before Christmas and with no warning, to have been callous, when one considers her length of service.

 

13.     The claimant received Job Seekers allowance from the date of her dismissal.

 

 

          SCHEDULE

 

          CALCULATION OF COMPENSATION

 

          Unpaid wages in lieu of notice

 

          10 weeks at £159.83 per week:                                                                                                         £1,598.30

 

          Unpaid holiday pay 2 weeks:                                                                                                                                                                        £319.66

 

 

          Redundancy payment

 

          10 completed years of service at claimants age of 47 years.

 

          £177.90 per week x 13:                                                                                                         £2,312.70

 

          Compensation for Unfair Dismissal

 

          Basic Award Nil as the claimant is awarded a Redundancy payment.

 

          Compensatory Award

 

          These calculations are based on the claimant’s net pay from the

          respondent at the date of termination of her employment being

          £159.83 per week.

 

          Loss of earnings for 2 weeks £319.66.

 

          Increased by 50% for failure to follow statutory procedures =                                                                                                                         £479.49

 

          Less wages in lieu of notice already awarded as above for 2 weeks:                                                                                                              £319.66

                                                                                                                   ________

 

                                                                                                                                                                                                                            £159.83

 

          Loss of statutory rights                                                                                                                                                                                £300.00

                                                                                                                   ________

 

                                                                                                    Total:                                                                                          £4,690.49

 

14.     This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

15.     Your attention is drawn to the attached Recoupment Notice which forms part of this decision.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:          31 May 2011, Belfast.

 

 

Date decision recorded in register and issued to parties:

 

Case Ref No:         442/11

      

CLAIMANT:               Deirdre Baxter

 

RESPONDENT(S):       Peter Mc Neill

 

 

ANNEX TO THE DECISION OF THE TRIBUNAL

 

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT 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; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.

 

 

          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, Income-related Employment and Support 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, Income-related Employment and Support 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.