Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2409/10IT

      

CLAIMANT:                          Sarah Conn

 

RESPONDENT:                  Carole Page

 

 

DECISION

 

The unanimous decision of the Tribunal is that the claimant was unfairly dismissed by the respondent and the respondent is ordered to pay the claimant a total of £461.53.

 

 

Constitution of Tribunal:

 

Chairman:                            Ms P Sheils

 

Members:                             Mr P Killen

                                                Mr D Walls

 

 

Appearances:

 

The claimant appeared in person and was not represented.

 

The respondent did not appear and was not represented.

 

 

SOURCES OF EVIDENCE

 

Witnesses

 

The Tribunal heard evidence form the claimant and from a witness for the claimant, Ms Laura Heather Henderson.

 

Documents

 

The Tribunal saw sundry documents produced by the claimant at hearing.

 

1.         The claimant, whose date of birth is 9 June 1983, was employed by the respondent, Carole Page, who was formerly Carol Caskey until her marriage in 2010.

 

2.         The claimant was employed by the respondent as a Beautician from 5 November 2009 until her dismissal on 8 July 2010.  The claimant worked 16 hours per week over Thursdays and Fridays and sometimes on Saturdays, if she had not been able to make up her hours on the previous two days.

 

3.         The claimant’s grandmother passed away in early July 2010.  The claimant approached the respondent in the Salon on 6 July 2010 and asked her if she could have bereavement leave.  The respondent stated that the claimant was not entitled to this and got very angry with the claimant that she had even asked her for it.

4.         At this point, the claimant decided to broach the subject of her earnings and asked the respondent why she was being paid only £5.00 per hour.  The claimant told the respondent that she believed she ought to be paid at least £6.00 per hour as this would have been commensurate with her qualifications and was in any event, in line with the minimum wage appropriate for the claimant’s age group.  The respondent stated that the new employee was being paid £6.00 per hour on the basis of her previous experience.  The respondent became enraged with the claimant and the claimant said that she would leave the Salon to avoid either of them saying something they would thereafter regret.

 

5.         The claimant texted the respondent on 7 July in the evening time to confirm that she should attend work on Thursday, 8 July, one of her usual working days.  The respondent replied by text saying “No I don’t want you in tomorrow.  I have had to make other arrangements since you walked out on Tuesday and I have not heard from you since”.

 

6.         The claimant texted the respondent again and asked if she had been sacked.  However, the respondent replied stating that she was refusing to discuss the matter further by text.

 

7.         The claimant did go into work the following day, Thursday, 8 July, in her uniform and ready for work.  At first, the respondent said she was too busy to talk but then she shouted at the claimant and told her to get out of the Salon.  The claimant refused to leave.  The claimant asked the respondent about her holiday pay as she was due to go on holiday the following Monday, 12 July 2010.  At this point, the claimant asked if all matters could be sorted out and the respondent got angrier and told the claimant to get out of the Salon.  The respondent called to her daughter from the adjacent beauty parlour and asked her to remove the claimant from the Salon.  At this point, the claimant stated that she would be taking the matter further and left the Salon.

 

8.         The claimant wrote a letter dated 8 July 2010 requesting the immediate payment of one week’s notice of £80.00 and holiday pay of £301.43.  This letter stated that the claimant had spoken to “Labour Relations” about her unfair dismissal but there was no specific written grievance in relation to the unfair dismissal claim beyond this.

 

9.         The respondent forwarded to the claimant a cheque in the sum of £240.00 in relation to the claimant’s holiday pay.  However, the claimant’s holiday pay entitlement exceeded this amount by £61.53.  No further monies were paid by the respondent to the claimant.

 

10.       The claimant lodged a claim form on 1 October 2010 in which the claimant sought remedy for unfair dismissal, outstanding holiday pay and notice pay.  The respondent presented her response on 8 November 2010.  Enclosed with this was a letter denying the claimant’s version of events.  The letter went on to make allocations of dishonesty and client bullying against the claimant.

 

11.       The Tribunal noted that the respondent did not appear at the hearing and therefore did not support these allegations or any aspect of her denial in any way.  The Tribunal accepted the claimant’s evidence, having seen her demeanour and found her to be an honest witness.

 

12.       The Tribunal also heard from Ms Henderson. She worked in the same salon before the claimant started. She had been involved in a similar dispute with the respondent over leave and this too had ended in the respondent’s shouting at Ms Henderson and telling her, “you’re sacked” and “get out”. The Tribunal also accepted this uncontested evidence.

 

The Law

 

13.       Under the Employment Rights (Northern Ireland) Order at Article 126 it states that employees have the right not to be unfairly dismissed.  In usual circumstances employees need to have gained one year’s service before being entitled to rely on this right.  However, Article 140 of the same Order sets out a number of examples of when the usual qualifying period does not apply and one of these exceptions is where a dismissal has occurred as a result of the employee exercising a statutory right.

 

The Tribunal’s Conclusions

 

14.       The Tribunal concluded that in this case Article 40 of the Employment Rights Order 1996 applied as the Tribunal accepted the claimant’s evidence that she had been dismissed without notice as a result of her having raised a query in relation to her level of pay.  The Tribunal concluded that this was the claimant exercising her right to minimum wage and her dismissal as a consequence of this was unfair.

 

15.       The Tribunal also noted that the respondent had failed to pay the claimant’s holiday entitlement in full and had failed to pay her notice pay.  Accordingly, the Tribunal concludes that the claimant was unfairly dismissed by the respondent and that the respondent is ordered to pay the claimant the following by way of compensation:-

 

Notice Pay   £80   x 1 week                  £80.00

 

Outstanding Holiday Pay                       £61.53

 

Basic Award £80   x 4 weeks             £320.00

 

16.       Compensatory Award

 

The Tribunal noted that the claimant had got another job at Christmas.  This job was for 12 hours per week at £6.60 per hour.  The claimant was receiving Income Support in addition to this as her hours of work came below the statutory threshold.  The combination of this meant that the claimant was not entitled to compensation.

 

Accordingly the Tribunal orders the respondent to pay to the claimant the total of £461.53.

 

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

 

 

 

 

Chairman:

 

Date and place of hearing:          1 February 2011, Belfast.

 

Date decision recorded in register and issued to parties: