Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/01286_11IT.html
Cite as: [2012] NIIT 01286_11IT, [2012] NIIT 1286_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1286/11

CLAIMANT: Aislin Curran

RESPONDENT: Forward Learning

DECISION

The unanimous decision of the tribunal is that the claimant is:-

(a) entitled to a redundancy payment of £1,200.00;

(b) entitled to unpaid wages of £1,815.35;

(c) entitled to holiday pay of £290.46;

(d) entitled to notice pay of £979.21; and

(e) was unfairly dismissed and is entitled to compensation £14,654.25.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Miss E Gilmartin

Mr J Foster

Appearances:

The claimant appeared in person and represented herself.

The respondent did not appear and had not filed a response.

Facts

1. The claimant was employed by the respondent from 15 September 2007 until her employment ended on 9 March 2011. The claimant’s age at the date of dismissal was 30. She had three years’ service with the respondent.

2. At the date of termination of the employment the claimant’s gross weekly wage was £500.00 and her net weekly wage was £363.07.

3. The claimant’s employment ceased when she was dismissed with immediate effect. No dismissal procedure whatsoever was followed by the respondent. The respondent has ceased trading but has not become insolvent within the terms of the Employment Rights (Northern Ireland) Order 1996.

4. The claimant makes claims for redundancy payment, unpaid wages, holiday pay, notice pay and unfair dismissal. She seeks five weeks’ wages and four days’ holiday pay. She received Jobseeker’s Allowance from 15 March 2011 to 4 May 2011 in the sum of £55.00 per week. She worked from 5 May 2011 to 2 June 2011 and earned £1,200.00. She then worked from 23 August 2011 to 23 December 2011 and earned £950.00 per month net.

5. After hearing the evidence of the claimant, the tribunal is satisfied her claims are well-founded. The tribunal makes the following awards:-

(a) Redundancy pay

The claimant is entitled to three weeks’ pay based on her gross weekly wage, subject to the statutory cap of a week’s pay of £400.00. The claimant is therefore entitled to £1,200.00.

(b) Unpaid wages

The claimant is entitled to 25 days’ wages. This is based on net wages. The claimant is therefore entitled to £1,815.35.

(c) Holiday pay

The claimant is entitled to four days’ holiday pay. This is based on her net weekly wage. The claimant is entitled to £290.46.

(d) Notice pay

The claimant is entitled to three weeks’ notice pay based on her net weekly wage. From this must be deducted her earnings during the notice period of £110.00. The claimant is therefore entitled to £979.21.

(e) Unfair dismissal

Under the terms of Article 130A of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) an employee is unfairly dismissed if one of the statutory dismissal and disciplinary procedures set out in the Employment (Northern Ireland) Order 2003 applies in relation to the dismissal, that procedure has not been completed and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements. In this case the tribunal is satisfied that the employer has failed to comply with the requirements of the statutory dismissal and disciplinary procedures and the claimant’s dismissal is automatically unfair. Under Article 154 of the 1996 Order where an employee is regarded as unfairly dismissed by virtue of Article 130A the industrial tribunal shall increase the basic award to the amount of four weeks’ pay. The claimant is therefore entitled to the sum of £2,000.00. To prevent duplication of award, however, from this figure should be deducted the redundancy payment of £1,200.00, leaving a basic award figure of £800.00.

(f) Compensatory award

In calculating the compensatory award the tribunal considered that an award of compensation should be made from the date of dismissal to the date of hearing. Taking into account the earnings of the claimant since the dismissal, and the award already made for notice pay, the total award for the compensatory figure is £9,595.89. To this should be added the claimant’s loss of statutory rights in a figure of £300.00, making a total compensatory award, before uplift, of £9,895.89.

Under the provisions of the Employment (Northern Ireland) Order 2003 where an employer fails to follow the statutory dismissal procedure the tribunal should uplift the amount of a compensatory award by at least 10% and up to a maximum of 50%. In this case the claimant was given no advance warning of the impending closure of the business. The tribunal considered the appropriate uplift is 40%. This resulted in a total compensatory award, including uplift, of £13,854.25. The total award for unfair dismissal is, therefore, £14,654.25.

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

Chairman:

Date and place of hearing: 4 January 2012, Belfast

Date decision recorded in register and issued to parties:

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