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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Willis v Zanadown Ltd [2013] NIIT 00576_12IT (28 February 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/576_12IT.html
Cite as: [2013] NIIT 576_12IT, [2013] NIIT 00576_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 576/12
CLAIMANT: Lynsey Willis
RESPONDENT: Zanadown Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal awards her £7,094.33 in compensation.
Constitution of Tribunal:
Chairman: Ms D Elliott
Members: Mrs M Galloway
Mr I Savage
Appearances:
The claimant appeared and represented herself.
The respondent did not lodge a response. The respondent did not appear and was not represented.
REASONS
1. SOURCES OF EVIDENCE
(a) The tribunal heard evidence on behalf of the claimant from the claimant herself. In addition to the claim form, the claimant provided the tribunal with copies of three letters in relation to her dismissal. At the tribunal hearing, the claimant gave evidence that she had pay slips in her possession, which she had left at home.
In addition, the claimant gave evidence that she had documentation relating to her ongoing claim in respect of Employment Support Allowance. The claimant was advised that it would assist the tribunal if said documentation was provided to the tribunal. As said documentation would assist the tribunal in reaching a determination.
(b) The claimant did not forward any such documentation to the Office of the Industrial Tribunals.
On 18 September 2012 the Office of the Industrial Tribunals issued an Unless Order to the claimant.
(c) The Unless Order required the claimant to produce documentary proof in respect of the claim, to include pay slips and documentation in respect of holiday pay and the claimant’s claim for Employment Support Allowance. The claimant was required to produce said documentation within 14 days.
The order stated that in the absence of full compliance, the claim would be decided on the evidence so far adduced to the tribunal.
(d) No such documentation was provided by the claimant.
As a result, the tribunal has reached a decision on the basis of the evidence heard on 1 August 2012 and the documentation provided at the hearing by the claimant.
2. THE CLAIM AND THE DEFENCE
The claimant claimed that she was unfairly dismissed. The claimant further claimed that the respondent had failed to comply with the statutory dismissal and disciplinary procedure.
In addition, the claimant made claims in respect of breach of contract and unauthorised deduction of wages.
The respondent did not lodge a response to reply to these claims contained in the claimant’s claim form.
3. THE ISSUE
The issue to be determined by the tribunal is whether the claimant was unfairly dismissed by the respondent. The claimant alleged that the dismissal was automatically unfair, due to the fact that the respondent failed to comply with a minimum standard of fairness, in the procedures adopted prior to dismissal.
The tribunal was also required to determine the claimant’s claim for breach of contract and unlawful deduction of wages.
4. FINDINGS OF FACT
The tribunal having heard the claimant’s evidence and considered the documentation before it found the following facts:-
1. The claimant was employed by the respondent as a shop assistant at the Tanstand, a tanning salon.
2. The claimant commenced her employment on 1 October 2009. The claimant worked four shifts each week, totalling 22 hours per week. The claimant was paid £6.08 per hour.
3. On 10 January 2012, the manager of the Tanstand, Mrs Paula Kelly, attended at the respondent’s premises on the Upper Newtownards Road, Belfast. The manager would call every few days to collect the takings from the shop.
In the interim, the money was kept in a safe in the shop.
It became apparent that a number of money bags were missing and the PSNI were informed. Mrs Kelly advised the claimant that she would be contacting the owner, Mr Mohamed, to advise him of this development.
4. The claimant subsequently received a telephone call on the evening of 10 January 2012. Mrs Kelly advised that the owner had decided that the missing sum of £600.00 should be re-paid, by the four members of staff who worked in the shop. The money would be deducted from their weekly wages.
The claimant indicated that she was not happy with this arrangement and would seek advice. The claimant was informed that if she was not prepared to agree to the arrangement, then she could leave her job.
5. On 20 January 2012, the claimant received a telephone call from the manager, Mrs Kelly, who advised her that she was being instantly dismissed. The claimant was informed that her boyfriend had been seen at the shop on the previous evening.
The claimant advised Mrs Kelly that her boyfriend collected her after work and usually waited outside.
The claimant gave evidence that her boyfriend had previously used the sun bed facilities, as a customer and that the manager was aware of this fact. The claimant gave further evidence that she had received no previous warnings or complaints in respect of this issue.
6. (a) The claimant forwarded a letter dated 8 February 2012 to the respondent. The claimant complained of the absence of a fair hearing and being dismissed without notice. The claimant advised that she intended to appeal against her dismissal. The claimant requested that an appeal hearing be arranged.
In addition, the claimant set out her grievance with regard to unauthorised deductions, outstanding holiday pay and pay in lieu of notice.
(b) The respondent replied by letter dated 14 February 2012. This letter, from Mrs Kelly, reiterated the reason for her dismissal. In addition, the letter stated that the claimant should make contact within fourteen days, if she wished to arrange an appeal meeting appointment.
(c) The claimant replied by letter dated 28 February 2012. The claimant advised that she had tried to contact Mrs Kelly on occasions, but her calls were not returned or unanswered.
The claimant directed the respondent to the failure to follow any disciplinary and dismissal procedure, resulting in an automatically unfair dismissal.
The claimant reiterated her right to a hearing and requested sight of any evidence relied upon by the respondent.
The claimant addressed the allegations set out in the respondent’s letter dated 14 February 2012.
The claimant further advised, in the event that the matter could not be resolved, that she would intend to proceed to an employment tribunal.
The claimant received no response to this letter. The claimant then issued her claim form dated 2 April 2012.
(d) The claimant states in her claim form that she was not afforded a chance to state her case, nor was she advised of any right of appeal. In addition, the claimant states that she had not received her P45.
7. The claimant has remained unemployed since the date of her dismissal on 20 February 2012. The claimant gave evidence that she was in receipt of Employment Support Allowance and had been unable to find another job.
The claimant gave evidence that she received £112.00 per fortnight, that is £56.00 per week, in ESA benefit.
Documentary proof was not produced to the tribunal, in respect of any benefits, which had been paid to the claimant.
5. LAW AND CONCLUSIONS
Part 1, Schedule 1 of the Employment (Northern Ireland) Order 2003 (hereinafter referred to as the “2003 Order”) sets out standard dispute resolution procedures which must be followed where an employer is contemplating dismissing an employee, and a modified procedure where a dismissal has taken place.
Under Article 130A(1) of the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as the “1996 Order”) an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if:-
(a) one of the procedures set out in Part 1 of Schedule 1 to the 2003 Order (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;
(b) the procedure has not been completed; and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
Article 154(1A) of the 1996 Order provides for the increase of the basic award to the amount of four weeks pay where an employee is regarded as unfairly dismissed by virtue of Article 130A(1).
Article 17(3) of the 2003 Order provides that an industrial tribunal shall (subject to paragraph 4) increase any award which it makes to the employee by 10% and may, if it considers just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%, where it appears to the tribunal that:-
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies;
(b) the statutory procedure was not completed before the proceedings were begun; and
(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure.
6. APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES
Based on the claimant’s claim form, oral and documentary evidence, the tribunal is satisfied that the claimant was unfairly dismissed. The statutory minimum dispute resolution procedures required to be followed under the 2003 Order were not complied with. In addition, there was no evidence before the tribunal to contradict this situation having been wholly or mainly attributable to the failure by the respondent to observe the statutory minimum dispute resolution procedures required under the 2003 Order.
The tribunal consequently finds that the claimant is entitled to be compensated for being unfairly dismissed as follows:-
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7. |
BASIC AWARD |
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(i) |
Completed years of service: |
2 Years |
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(ii) |
Age at dismissal: |
24 Years |
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(iii) |
Week’s pay: |
£133.26 |
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(iv) |
Years in which the claimant was not below the age of 22: |
2 Years |
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2 x 1 x £133.26 = |
£266.52 |
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As this figure is less than the amount of four week’s pay, the basic award is increased under Article 154(1A) to 4 x £133.26 = |
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£533.04 |
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COMPENSATORY AWARD |
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Loss of Earnings from 20 January 2012 until 1 August 2012 27 Weeks x £133.26 = |
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£3,598.02 |
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Increase |
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Under Article 17 of the 2003 Order, 50% increase of basic and compensatory awards. (£4,131.06) = |
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£2,065.53 |
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Pay in Lieu of Notice |
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2 Weeks pay = |
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£266.52 |
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Loss of Statutory Rights = |
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£250.00 |
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Holiday Pay = |
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£381.22 |
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Total Award: |
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£7,094.33 |
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8. RECOUPMENT
1. The claimant received Employment Support Allowance between February 2012 and 1 August 2012 at £112.00 per fortnight / £56.00 per week. The Recoupment Regulations apply to this decision.
2. The total monetary award is £7,094.33.
3. The prescribed element is £3,598.00.
4. The period to which the prescribed element relates is 20 February 2012 to 1 August 2012.
5. The amount by which the total monetary award exceeds the prescribed element is £3,496.33.
Your attention is drawn to the notice below which forms part of the decision of the tribunal.
9. INTEREST
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 1 August 2012, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 576/12
CLAIMANT: Lynsey Willis
RESPONDENT(S): Zanadown Ltd
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT ALLOWANCE/ INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.
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£ |
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(a) Monetary award |
7,094.33 |
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(b) Prescribed element |
3,598.00 |
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(c) Period to which (b) relates: |
20 February 2012 to 1 August 2012 |
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(d) Excess of (a) over (b) |
£3,496.33 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.