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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gillespie v William Noble Comfort Cafes Ltd [2011] NIIT 01544_11IT (15 November 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01544_11IT.html
Cite as: [2011] NIIT 01544_11IT, [2011] NIIT 1544_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1544/11
CLAIMANT: Amanda Gillespie
RESPONDENTS: 1. William Noble
2. Comfort Cafes Ltd
DECISION
(A) The claimant’s claims against Mr Noble are not well-founded and accordingly they are dismissed.
(b) The claimant’s claim against Comfort Cafes Ltd (“the Company”) in respect of notice pay is well-founded and it is ordered that the Company shall pay the claimant the sum of £21 in respect of notice pay.
(c) The claimant’s claim in respect of holiday pay against the Company is well-founded and it is ordered that the Company shall pay to the claimant the sum of £732 in respect of holiday pay.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
The claimant was not present or represented.
1. The respondent Mr Noble was self-represented.
2. Mr Noble also represented the Company.
REASONS
1. The claimant was not present or represented at this hearing. She gave no warning that she was not going to be present. I asked the clerk to this tribunal to telephone the claimant, to ask her why she was not present. In response, the claimant asserted that she was medically unfit to attend. She asked that the hearing should be disposed of in her absence.
2. I have no sufficient evidence that the claimant was truly medically unfit to attend the hearing. If a party fails to attend or to be represented (for the purpose of conducting that party’s case) at the time and place fixed for the main hearing of the proceedings, there is a discretion either to dismiss or dispose of the proceedings in the absence of the missing party, or to adjourn the hearing to a later date.
3. Without opposition from Mr Noble, I decided to dispose of the proceedings in the absence of the claimant.
4. Mr Noble testified on oath during the course of this hearing. On the basis of his testimony, and on the basis of such other information as is in my possession in relation to these proceedings, I made the following finds of fact, and arrived at the following conclusions.
5. The claimant was never employed by Mr Noble. Instead, she was at all material times employed by the Company.
6. She was employed by the Company from 15 October 2010 until 22 May 2011. With effect from the latter date, she was dismissed by reason of redundancy.
7. She had received six days notice of her impending dismissal. (She was entitled to seven days notice).
8. She never received any paid holiday during the entire duration of her employment with the Company. She had an annual holiday entitlement of twenty-three fortieths of 28 days (16 days). At the time of the termination of her employment, she had been employed by the Company for approximately seven months, so she then had an accrued holiday pay entitlement of seven-twelfths of 16 (which amounts to 9 days).
9. The claimant was never provided with written particulars of her contract of employment. There was no good reason for the failure to provide the claimant with those written particulars.
10. The claimant was employed by the Company for approximately 23 hours per week, and was paid £6.20 per hour.
11. In the circumstances of this case, the effect of Article 27 of the Employment (Northern Ireland) Order 2003 can be summarised as follows. If an industrial tribunal makes an award to an employee in respect of breach of contract, and when the proceedings were begun the employer was in breach of its duty to provide the employee with written particulars of employment then, as a general rule, the tribunal is under an obligation to increase the award by the “minimum amount” and may, if it considers it just and equitable to do so, increase the award by a “higher amount”. (In the present context, “the minimum amount” is an amount equal to two weeks pay, and the “higher amount” is an amount equal to four weeks pay). That general rule (as provided for in Article 27(3) of the Order) is subject to an exception: a tribunal is not obliged to increase an award even by the minimum amount if there are exceptional circumstances which would make an increase under that paragraph unjust or inequitable.
12. In my view, there are no circumstances which would make an Article 27(3) increase unjust or inequitable in the circumstances of this case. I note that the Company was a small employer. I have increased the amount of the holiday pay award by the minimum amount (£286).
13. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: 1 November 2011, Belfast
Date decision recorded in register and issued to parties: