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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGregor v Jim Blee and Clive Eagleson t/... [2013] NIIT 647_13IT (10 December 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/647_13IT.html
Cite as: [2013] NIIT 647_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 647/13
CLAIMANT: Carol McGregor
RESPONDENTS: Jim Blee and Clive Eagleson t/a Mace Stores Bushmills
DECISION
The Tribunal concludes that the claimant was unfairly dismissed and orders the respondent to pay her £8,544.49 in relation to her dismissal, her notice pay, her outstanding holiday pay and their failure to provide her with written statement of her employment.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mrs E Torrans
Mr D Atcheson
Appearances:
The claimant appeared and was represented by Ms A McCabe, Law Centre for Northern Ireland. She was attended by Chris McKee, a note taker.
The respondents appeared and represented themselves.
1. The title of the case was amended to read as above.
THE CLAIM
2. The claimant’s claim was for unfair dismissal, outstanding notice pay, holiday pay and failure to provide written particulars for employment.
THE RESPONSE
3. The respondents denied that the claimant had been dismissed. They stated that the claimant had left her employment to avoid inevitable dismissal.
THE FACTS
The Tribunal found the following relevant facts as agreed or proven on a balance of probabilities:-
4. The claimant commenced working at the Mace in Bushmills in 2000. She was employed as a Sales Assistant.
5. Mr Blee and Mr Eagleson took over the business at Mace in Bushmills in 2012. The claimant continued to be employed by them.
6. The claimant’s case was that
on 4 January 2013 she had been advised by a
co-worker that there was talk of the business closing although Rose told the
claimant that she was not supposed to tell anyone about it. Her co-worker went
on to advise the claimant that all redundancy pay, holiday pay and outstanding
pay would be “sorted out” by the owners before the closure.
7. The following day, 5 January 2013 and while on her shift between 12.00 and 4.00, the claimant decided to broach the subject of closure with her supervisor. Her supervisor confirmed the rumours but told the claimant that she had not heard this from her.
8. It was agreed between the parties that before the end of the claimant’s shift and while she was in process of cashing up the claimant was invited to go to the office. However, there was considerable dispute between the parties as to the nature of this meeting and what had transpired at it.
It was agreed that the claimant had been given no prior notice of this meeting nor was she subsequently given any opportunity to consider and/or rebut any of the issues raised against her at the meeting.
9. It was also agreed between the parties that Mr Blee and Mr Eagleson were both present and that Mr Blee had conducted most of the meeting.
10. The claimant’s case was that she was confronted with a number of performance issues which included her lateness to work (September 2012 and 28 December 2012), a mistake in relation to a special offer for coal and customer complaints that she had not always been at the till when service was required.
11. The claimant stated that Mr Blee had concluded the meeting by saying, “We are letting you go”. The claimant became very upset and unsure of how to react. She recalled asking if she could continue to cash up the till but stated that Mr Blee had said, “Don’t bother with it, go straight away tonight”. The claimant asked if she would be entitled to one week’s notice and that Mr Eagleson told her that she would not be required to work her notice from which the claimant understood that she was being dismissed with effect from that evening.
12. The claimant also raised the question of a reference and stated that Mr Blee had answered that if she were to leave today she could go to Social Security on Monday to claim Jobseeker's Allowance and tell them that her hours had dropped to nothing and that she would then be entitled to benefits. The claimant stated that she had been advised that she would get a reference if she wanted one and her holiday pay.
13. The claimant added that Mr Blee had said to her, “This is not a threat but if I hear you badmouthing the shop around the town I’ll ring Social Security and tell them exactly what happened and you’ll get no benefits”.
14. The claimant was very clear that she had been dismissed and told not to come back. She collected her belongings, scissors and her cup and left.
15. However, the claimant denied that any other performance issues were raised by her as described by Mr Blee and Mr Eagleson or at all.
16. The respondents denied that there had been discussions with any staff about the store closing and stated that there had been rumours and conjecture around the shop’s viability for years. However the respondents stated that they had closed the business on 19 January 2013, two weeks after the meeting with the claimant, and that there had been a number of redundancies.
17. The respondents maintained that they had invited the claimant to a Performance Review Meeting. They had raised a number of competency issues with her and received no suitable explanations for any of them.
18. The respondents stated that the performance issues discussed with the claimant included the following:- episodes of lateness; mistakes in relation to coal prices and a running special offer; verbal complaints from customers re service; poor competence in relation to the return of newspaper/magazines, causing financial burden to the business; an inability to follow procedures in relation to credit/debit card and payzone transactions causing financial burden to the business and on a number of occasions being present on the premises after hours exposing the business to risk of burglary. The latter related particularly to one occasion when the claimant had locked up at night but having returned some two hours later allegedly to check on something had set off the alarm causing the owner to be alerted to a potential break-in.
19. The respondent also stated that at the conclusion of this meeting they informed the claimant that the next step would be a disciplinary meeting with a potential outcome of dismissal. The respondents denied that the claimant had been dismissed, that notice had been discussed or that any reference had been made by them to social security benefits.
20. The respondents stated that their opinion of the conclusion of this meeting was that the claimant had decided to leave her employment before she was dismissed and that this had only become apparent to them when the claimant did not turn up for shifts. The respondents made no further contact with the claimant and did not follow up this meeting with any correspondence inviting the claimant to a disciplinary meeting.
21. The respondents provided a number of documents purporting to support their contentions that this was a Performance Review Meeting. The respondents produced a page comprising of scant notes in relation to the meeting on 5 January 2013. This recorded a list including the following:- time-keeping; incompetence - papers/current promotions/basic work instructions; non-attendance at till causing loss of customers; late two days this week; late two days last week (putting staff under pressure); four verbal warnings, two from me (Jim Blee), two from Elizabeth (Ms McAleese).
22. The respondents also provided copies of four notes purporting to be records of four verbal warnings issued to the claimant on 6 September 2012, 13 September 2012, 22 November 2012, and 11 January 2013.
23. The claimant accepted that she had had a verbal warning for lateness to work in September 2012 and that she had also been late for work on 28 December 2012. However the claimant stated that she had not seen any record of the verbal warning she had received in September and stated that she had not received a verbal or other warning on the 28 December 2012. The claimant acknowledged her mistake in relation to the special offer for coal but stated that Mr Blee had spoken to her about it informally at the time.
24. The claimant produced extracts from her diary in which she recorded her weekly wages and her shift times and her holidays. The diary entry for the 22 November 2012 recorded “hol, 4”. The claimant stated that this indicated that she had been off work that day and that her holiday entitlement was four hours.
25. The Tribunal noted that all the verbal warning records had been signed by Mr Blee, none by Mrs McAleese and that they had not been signed by the claimant even though there was a specific place on the record for employee signature. The Tribunal also noted that in the records produced by the respondents there was no reference to the claimant’s lateness for work on 28 December 2012.
26. The Tribunal concluded on the basis of the inconsistencies between the verbal record evidence, that none had been signed by Ms McAleese, that they recorded a warning given to the claimant on a day when she had not been at work and that they had not been signed by the claimant that all four verbal warning records had been created for the purposes of this hearing.
27. The Tribunal concluded that the scant note of the meeting was insufficient to establish that it was a record of that meeting as it reflected none of the detail referred to by the respondents in their ET3. The Tribunal concluded that this too had been created for the purposes of the hearing.
28. The Tribunal noted that during the hearing Mr Blee and Mr Eagleson had no hesitation in adding new issues to the list of the claimant’s so-called incompetency on an ad hoc basis during their evidence.
29. The Tribunal rejected the respondents’ evidence and concluded that the claimant’s version of events was what had transpired.
THE LAW
Unfair Dismissal
30. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer. Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.
31. Article 130 states at paragraph (2) a reason falls within this paragraph if it –
“(a) relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant or,
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.”
32. Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
“(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
33. Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer.
THE TRIBUNAL’S CONCLUSIONS
34. The Tribunal concluded that the claimant had been automatically and substantively unfairly dismissed and ordered the respondent to pay the following compensation:-
Compensation
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Basic Award |
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17½ Weeks x 154.49 |
= |
£2,703.58 |
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Notice Pay |
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12 Weeks @ 153.47 |
= |
£1,841.64 |
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Holiday Pay |
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31 Hours @ 6.13 per hour |
= |
£190.03 |
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Failure to provide written particulars of employment |
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154.49 x 4 |
= |
£617.96 |
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Loss of Statutory Rights |
= |
£750.00 |
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Total Loss |
= |
£6,103.21 |
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Future Loss |
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In view of the fact that the business closed some five weeks after her dismissal the Tribunal makes no order for future loss. |
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Uplift |
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Given the fact that the respondents gave no indication or warning or followed any procedure in relation to the dismissal of the claimant the Tribunal decided to uplift claimant’s award by 40%. |
= |
£2,441.28 |
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Total Award |
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£8,544.49 |
35. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 30 July 2013, Belfast.
Date decision recorded in register and issued to parties: