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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hall v The Tile Yard Ltd [2012] NIIT 01057_11IT (23 May 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1057_11IT.html
Cite as: [2012] NIIT 01057_11IT, [2012] NIIT 1057_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1057/11
CLAIMANT: Sharon Hall
RESPONDENT: The Tile Yard Ltd
DECISION
(A) The claimant’s claim of unfair dismissal is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £1,140 in respect of that dismissal.
(B) The claimant’s claim in respect of notice-pay is well-founded, but the tribunal has decided not to make any award in respect of notice-pay.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mr N Jones
Mr J Magennis
Appearances:
The claimant was not present or represented.
The respondent was not represented.
REASONS
1. The respondent failed to be represented (for the purpose of conducting that party’s case) at this hearing.
2. The claimant did not attend and was not represented (for the purpose of conducting the claimant’s case) at this hearing. The claimant’s representative, Ms June Smith, had notified the Office of the Industrial Tribunals, in advance of the main hearing, that the claimant would not be present or represented at the main hearing, for the very good reason that, because of the financial situation of the respondent, she does not expect to recover any amount that may be awarded by the tribunal as a result of these proceedings.
3. In advance of these proceedings, Ms Smith had provided us with a signed witness statement from the claimant, along with various documents (documents “A” to “J” inclusive).
4. We decided to dispose of the proceedings, at the time fixed for the main hearing, despite the absence of the parties.
5. Before disposing of the proceedings, we first considered the documents mentioned at paragraph 3 above, and all other information which had been made available to the tribunal by the parties.
6. The respondent dismissed the claimant, with effect from 8 February 2011. They dismissed her without notice. In their Response in these proceedings, they assert that they dismissed her because of serious misconduct. However, the claimant firmly denies that she has been guilty of any relevant misconduct.
7. Under Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), it is up to the respondent to show the true reason for dismissal; and, if the respondent does not show the true reason for dismissal, the dismissal is regarded as being an unfair dismissal for the purposes of that Order.
8. In this case, the respondent has not “shown” the true reason for dismissal, because nobody from the respondent was present at this hearing. Accordingly, we conclude and declare that the claimant has been unfairly dismissed.
9. We accept that the claimant was employed by the respondent for more than three years and for less than four years. We also accept that throughout the period of her employment, she was receiving weekly gross pay in excess of £380. On that basis, we have decided to make a basic award of compensation for unfair dismissal amounting to £1,140. (For the purpose of calculating the basic award, the claimant’s pay has to be deemed to be no more than £380 per week: see Article 23 of the 1996 Order).
10. We have decided not to make any compensatory award in respect of the unfair dismissal. In the context of a claim for a compensatory award, it is up to a claimant to prove loss. She has failed to do so. We have received no sworn testimony on the question of whether or not the claimant sustained any loss as a result of her dismissal.
11. We are satisfied that the claimant was not given due notice of her dismissal. On the available evidence, we are not satisfied that the claimant was guilty of any gross misconduct. Accordingly, her claim in respect of notice pay must be upheld.
12. However, we have no sworn testimony from the claimant on the question of whether or not she actually sustained any loss as a result of the failure to provide her with due notice. Accordingly, we make no award in respect of notice.
13. In these proceedings, the claimant has also asserted that there was a failure on the part of the respondent company to provide her with written particulars of her terms and conditions of employment, despite repeated requests having been made by her for such particulars.
14. However, the onus of proof is upon the claimant in relation to those matters. We do not have sworn oral testimony from the claimant in relation to those matters. (For perfectly understandable reasons, which have already been given above, the claimant was not present at this hearing). In the absence of such testimony, we consider that the claimant has not discharged the onus of proof, which is upon her, in respect of the statement of employment particulars breach issue. Accordingly, in those circumstances, we consider that the claimant is not entitled to the award, or the augmentation of award, which is contemplated in Article 27 of the Employment (Northern Ireland) Order 2003. (Article 27 is entitled “Failure to give statement of employment particulars, etc.: industrial tribunals”).
15. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 19 April 2012, Belfast.
Date decision recorded in register and issued to parties: