Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/00911_11IT.html
Cite as: [2011] NIIT 00911_11IT, [2011] NIIT 911_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 911/11

CLAIMANT: Brenda McFall

RESPONDENT: Thornbank Trading Limited

DECISION

The claimant was unfairly dismissed by the employer, she was not provided with written terms and conditions of employment by her employer and did not receive 10 days’ paid leave to which she was entitled during her last year of employment. Accordingly we order the respondent to pay the claimant the sum of £9,621.47.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr T Wells

Mr I Carroll

Appearances:

The claimant appeared in person and represented herself.

The respondent had lodged a response form but did not appear at the hearing.

1. Issues

The issue for the Tribunal is whether the claimant was unfairly dismissed contrary to Article 130 and following of the Employment Rights (Northern Ireland) Order 1996.

2. The Facts

2.1 At the outset of the hearing we had to consider whether to proceed with the case given that the respondent did not appear. A response had been lodged and we took the response into account in our findings in relation to this matter but we decided to proceed with the case in the respondent’s absence.

2.2 On the basis of the information provided by the respondent and also the payslips produced by the claimant in relation to this matter we find that the respondent is in fact Thornbank Trading Limited and we order that the name of the respondent is to be amended accordingly.

2.3 The claimant was born on 24 November 1959 and had worked for Mr Hutchinson, a Director of the respondent company, at various times over the years. For the purposes of this claim the relevant date of commencement of employment was the first week of December 2009 when the claimant started work at a restaurant known as Solomon Grundy’s, run by the respondent. At that stage he was employed by a company called Knockburn Enterprises Limited. In November 2010 Solomon Grundy’s closed because of poor trading conditions and the claimant moved to work at another restaurant owned by the respondent known as Café Tosca in Ballymena.

2.4 The claimant’s evidence was that she had been asked to act as Head Chef while a colleague was on maternity leave. At that point her wage went up from £7.15 per hour to £8.15 per hour and she worked a 40 hour week most weeks. Her take home pay varied according to the hours that she worked but when she moved to Café Tosca, on average, she was working between 30 and 40 hours per week. The claimant did not produce all her payslips for the weeks after she moved to Café Tosca in November 2010, we note however that her payslip at the end of November 2010 was issued by Knockburn Enterprises Limited and the following week her payslip was issued by Thornbank Trading Limited. We are satisfied on the basis of the evidence we heard that the claimant transferred to work at Café Tosca under the Transfer of Undertakings and Protection of Employment Regulations 1991 (as amended) and therefore that she is entitled to benefit from continuity of her employment from the date when she commenced employment in December 2009.

2.5 The response form entered by the respondent indicated that the claimant had not been able to keep up with the pace of work at Café Tosca and that she had been spoken to on a number of occasions about her lack of speed in carrying out her work. The response form indicates that “She just could not cope with the speed required in a more pressurised environment. She was counselled and finally warned several times about the situation but regrettably could not increase her speed from slow to normal and therefore had no option but to dismiss her. She with respect advised to go back to the previous career of admin or carer”.

2.6 The claimant advised that at the end of January 2011 she had just finished her shift when Mr Hutchinson stopped her and said he wanted a word with her. He took her in to the office and told her that he would have to “let her go” as her work was not up to speed at Cafe Tosca making sandwiches and prepping salads, etc. The claimant said that she was completely taken aback to hear this as she had never been made aware that she was not doing the job satisfactorily. The claimant then said that Mr Hutchinson informed her that he would give her two weeks notice. She protested but he insisted, so she said she would work the two weeks notice. She was due to be on duty again on the following Wednesday but on Tuesday, Mr Hutchinson rang her, told her not to work her notice and that she would still be paid. This concurs with the respondent’s response form.

2.7 The claimant subsequently wrote to the respondent asking if he would reconsider dismissing her. She set out in that letter that she believed she had been unfairly dismissed and requested a payment in relation to a redundancy payment. A reply was sent to the claimant by the respondent dated 7 March 2011 turning down the claimant’s request. This letter indicated that the claimant was “on trial” to see if the more intense environment of Sorrento Tosca as against Solomon Grundy’s was suitable and this indicated that the claimant was not able to cope. The letter also disputed the length of service which the claimant had alleged that she had with the respondent.

2.8 The claimant was adamant that she had not been told that she was on a “trial basis” when she was moved to Café Tosca and she refuted that allegation.

2.9 The claimant confirmed that she had not received a written contract of employment from the respondent and so she was unclear about the exact holiday entitlement that she was due but that she believed she was entitled to four weeks’ holidays (20 days) and statutory holidays such as 12 July, New Years Day, Christmas Day and Boxing Day, May Day bank holiday and Easter Monday. She was not due to receive the August bank holiday off.

2.10 The claimant sought other work, but it took her until 20 July 2011 to find other employment in the Michelin Factory as a weekend shift manager. She received Jobseekers Allowance during this time. She indicated that she will normally be paid for 16 hours work per week in her new job and possibly a few additional hours from time to time. At the date of hearing, she was not sure of her exact take home pay as she had not yet received a payslip, but her hourly rate was £8.25 per hour, which would give pay of £132 gross for 16 hours. She believed that she was entitled to approximately 10 days holidays in respect of her previous employment, given that she had taken only 2 weeks holidays the previous year and statutory holidays.

3. Relevant Law

3.1 The claimant is entitled to a written terms and conditions of employment by virtue of Article 33 of the Employment Rights (Northern Ireland) 1996 and is entitled to be compensated for the employer’s failure to issue such written terms and conditions of employment consisting of a minimum award of either 2 weeks’ gross pay or up to 4 weeks’ gross pay under Article 27 of the Employment (Northern Ireland) Order 2003.

3.2 By virtue of Articles 130 and following of the Employment Rights (Northern Ireland) 1996 the claimant is entitled not to be unfairly dismissed either from her employment, and the dismissal will be automatically unfair under Article 130A if the respondent has failed to follow the statutory disciplinary procedures as set out in Schedule 1 to the Employment (Northern Ireland) Order 2003.

3.3 The claimant is entitled under the Working Time Regulations 1998 (as amended) to 28 days paid annual leave and in the event she did not receive this holiday, she is entitled to be paid for untaken holidays.

4. Decision

4.1 In this case we are satisfied that the employee was transferred to work for the respondent company in late 2010. Although the respondent said that the claimant had been warned about her work performance on a number of occasions, no evidence was produced to us that the statutory disciplinary procedure had been followed and that the claimant had been given appropriate warnings, called to disciplinary meetings, then disciplined and given an opportunity to appeal following this. The claimant herself gave evidence that she had not been aware of any difficulties in relation to her work performance and that she had not been given any warnings. It is clear to us that the appropriate procedures were not followed and we therefore find that the claimant was unfairly dismissed.

4.2 The claimant was aged 51 at the date of dismissal. Her pay varied from week to week and we do not have all the payslips for the period from 6 December 2010 onwards. However in order to try and reach the average weekly pay we have taken the figures set out on the payslips and have worked out the average gross and net pay on those dates, according to the payslips we have. These indicate that the claimant’s average gross pay was £251.59 from November 2010 onwards and allowing for the deduction shown on her payslips, her take home pay was £200.59 per week.

Basic Award

4.3 The basic award is calculated as follows:-

The claimant had one full year’s service and was over the age of 42, her basic award is therefore as follows from 14 February 2011 to 10 August 2011:-

1 x 1.5 x £251.59 = £377.37

Compensatory Award

Loss of wages 13 February 2011 to 19 July 2011 = 22 weeks

Net pay £200.59 x 22 = £4,412.98

Ongoing loss £200.59 - £132 = £68.59 per week

We think in light of the current economic climate, it is reasonable to award the claimant 26 weeks future loss.

£68.59 x 26 = £1,783.34

Loss of statutory rights = £400.00

SUB–TOTAL = £6,973.69

In light of the failure of the respondent to follow the statutory disciplinary and dismissal procedures, we believe it would be just and equitable in all the circumstances to award the claimant an uplift of 25% on the award, equal to £1,743.42. This brings the total award for unfair dismissal to £8,717.11.

In addition the claimant was not provided with written terms and conditions of employment. We consider in the circumstances of this case, it would be appropriate to award the claimant 2 weeks’ gross pay, equal to £503.18. The claimant is also entitled to be paid for untaken holidays, which amount to 10 days or 2 weeks’ net pay , ie £200.59 x 2 = £401.18.

The total award which the respondent is ordered to pay to the claimant is therefore £9,621.47.

This is a relevant award for the purposes of the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (NI) 1996 as amended by the Social Security (Miscellaneous Amendment No 6) Regulations (NI) 2010. The amount of the monetary award is £9,621.47. The amount of the prescribed element is £4,412.98 and the prescribed element relates to the period from 13 February 2011 to 19 July 2011. The monetary award exceeds the prescribed element by £5,208.49.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest on Awards) Regulations 1990.

Chairman:

Date and place of hearing: 10 August 2011, Belfast.

Date decision recorded in register and issued to parties:

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