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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mackin v Bufkins - home childminder [2014] NIIT 1094_14IT (06 November 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1094_14IT.html
Cite as: [2014] NIIT 1094_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1094/14
CLAIMANT: Caron Mackin
RESPONDENTS: 1. Bufkins – home childminder
2. Claire Thompson
DECISION ON AN APPLICATION FOR A REVIEW
The tribunal’s decision is that:-
1. The second respondent, Claire Thompson, hereinafter referred to as the respondent, was the claimant’s employer and is therefore the correct respondent. The first respondent Bufkins-home childminder was therefore dismissed as a respondent from these proceedings.
2. The claimant’s application for a review of the decision dismissing her claims in respect of notice pay/breach of contract, holiday pay and itemised pay statements is granted.
3. Having reviewed the decision, the tribunal:-
(i) ordered the respondent to pay the claimant £784 (7 weeks x £112 nett) in respect of damages for failing to provide the claimant with the full 2 months (8 weeks) notice to which she was contractually entitled;
(ii) dismissed the claimant’s claim in respect of holiday pay; and
(iii) made a declaration that the respondent had failed to provide the claimant with itemised pay statements during the course of her employment but made no Order that the respondent make a payment in respect of unnotified deductions because it appeared that no deductions had been made from the claimant’s gross pay in light of the level of her pay.
Constitution of Tribunal:
President (sitting alone): Miss E McBride CBE
Appearances:
The claimant appeared in person.
The respondent did not attend and was not represented.
Reasons
1. On 12 June 2014 the claimant presented claims in respect of notice pay/breach of contract, holiday pay and itemised pay statements.
2. On 8 July 2014 the respondents presented a response disputing the claimant’s claims. The tribunal was satisfied that the second respondent, Claire Thompson, hereinafter referred to as the respondent, was the claimant’s employer and was therefore the correct respondent. The first respondent, Bufkins-home childminder, was therefore dismissed from these proceedings.
3. The case was listed for Hearing on 29 July 2014. Neither the claimant nor the respondent appeared or were represented at that Hearing. Having considered the claimant’s claim form together with the respondent’s response and the documents attached thereto, in accordance with Rule 27(6) of the Industrial Tribunal Rules of Procedure 2005, the President dismissed the claimant’s claims as she was not satisfied from that documentation that they had been substantiated. The decision was issued to the parties on 31 July 2014.
4. On 22 August 2014 the Tribunal Office received a letter from the claimant dated 12 August 2014 which the President treated as an application for a review of her decision dismissing the claimant’s claims. Having carried out a preliminary consideration of the claimant’s application for a review of her decision, the President directed that a Review Hearing would take place on 1 October 2014 at 10.00am to consider and determine the following issues:-
(1) whether it would be just and equitable to extend the 14 day time limit for making an application for a review of the President’s decision dismissing the claimant’s claims, which was sent to the parties on 31 July 2014;
(2) if so, whether the claimant’s application for a review of the President’s decision should be granted;
(3) if so, whether the President’s decision dismissing the claimant’s claims or any of them should be confirmed, varied or revoked;
(4) if revoked, whether the claimant’s claims should be upheld following a Hearing before the President which would also take place on 1 October 2014.
5. A letter confirming the President’s direction was sent to the claimant and to the respondent on 16 September 2014. A Notice of the Review Hearing on 1 October 2014 was also issued to the claimant and the respondent on 16 September 2014. The third paragraph of the Notice of Hearing informed the parties that they could either attend the Review Hearing in person or submit written representations (which must be copied to the other side) to the Secretary of the Tribunals not less than 7 days before the date of the Review Hearing for consideration by the Employment Judge at the Review Hearing. The Notice of Hearing also gave information in relation to postponement requests.
6. The claimant attended the Review Hearing on 1 October 2014. The respondent did not attend and was not represented. It came to the President’s attention just prior to the commencement of the Review Hearing that the respondent had contacted the Tribunal Office by telephone on 19 September 2014 and had indicated that she would not be able to get anyone to cover her and would not therefore be attending the Review Hearing. It was unclear to the President whether the respondent was in effect seeking a postponement of the Review Hearing or whether she wished the Review Hearing to proceed in her absence. The President therefore adjourned the Review Hearing to 17 October 2014 to give the respondent the opportunity to arrange cover so that she could attend the Review Hearing if she wished to do so. It was pointed out to the respondent, at paragraph 5 of the Record of Proceedings which was issued to her on 8 October 2014 that if she did not attend the Review Hearing on 17 October 2014 it would proceed in her absence. It was also pointed out that if the claimant’s application for an extension of the time limit in which to make a review and the review application was granted and if the decision dismissing the claimant’s claims was revoked, then a rehearing of the claimant’s claims would also take place on 17 October 2014. In addition, it was pointed out to the respondent that if she wished to defend the claimant’s review application and her claims if the review application was granted, it was important that she attended the Review Hearing on 17 October 2014. The respondent was also informed that, in the alternative, she could send written representations but that written representations may not carry as much weight as evidence given under oath or affirmation which had been subjected to cross-examination.
7. By correspondence dated 11 October 2014 the respondent notified the tribunal in writing that she would be unable to attend the new Review Hearing and would like it to proceed in her absence. The claimant attended the rearranged Review Hearing on 17 October 2014. The respondent did not attend and was not represented. The claimant gave oral evidence under oath and produced a number of documents in evidence. The President considered the claimant’s sworn oral and documentary evidence together with the respondent’s response, attached documents and correspondence of 11 October 2014.
The relevant statutory provisions
8. Rule 34 of the Industrial Tribunal Rules of Procedure 2005 provides:-
(1) ...
(2) ...
(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only –
(a) the decision was wrongly made as a result of an administrative error;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) the interests of justice require such a review.
(1) An application under rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.
Rule 36 provides:-
(1) Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in rule 35, the decision shall be reviewed by the chairman or tribunal who made the original decision. ...
(2) ...
(3) A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing a new hearing must be held.
Issue 1
9. Whether it would be just and equitable to extend the 14 day time limit for making an application for a review of the President’s decision dismissing the claimant’s claims which was sent to the parties on 31 July 2014.
Having considered the claimant’s sworn oral evidence in relation to this issue, (the respondent did not address this issue in her correspondence), the President was satisfied that the claimant had sent her application for review to the tribunal on 12 August 2014 and that, but for the fact that the claimant had sent it to the incorrect address i.e. the Enforcement of Judgments Office, it would have arrived within the 14 day statutory time limit. The President was also satisfied that the address of the Enforcement of Judgments Office was included in the Explanatory Notes (which were sent to the parties with the tribunal’s decision on 31 July 2014) for enforcement purposes and that the claimant had genuinely mistaken that address for the tribunal’s address. In those circumstances the President was satisfied that it would be just and equitable to extend the 14 day time limit for the review application to be made to 22 August 2014, when the claimant’s application was received by the tribunal from the Enforcement of Judgments Office.
Issue 2
10. Whether the claimant’s application for a review should be granted.
The claimant’s application for a review was set out in her letter of 12 August 2014 as follows:-
“... I have been feeling very pressured since I have been unemployed, having to deal with money issues and help my mother who is ill and has some bad days. With everything going on I had got my dates mixed up and again I apologise for any inconvenience I have caused. I turned up on 31st July 2014 to find out I had missed the hearing. ...”
The President was satisfied that the claimant’s application came within the ground that the interests of justice required a review. In considering the application the President had regard to the interests of justice of both parties and the public interest of having finality to litigation. Having considered the claimant’s letter, as referred to above, together with her sworn evidence and the respondent’s correspondence of 11 October 2014, the President was satisfied that the claimant had made a mistake with regard to the date of Hearing and that she attended the tribunal on Thursday 31 July 2014 instead of Tuesday 29 July 2014, when the case had been listed. The President was also satisfied that the claimant had made that mistake because of the pressure she was experiencing at that time:-
(a) as a result of having lost her job at a time when she had taken on additional financial commitments; and
(b) the additional assistance she had to provide for her mother around that time due to her mother’s medical condition.
In those circumstances the President was satisfied that the claimant’s application for a review should be granted in the interests of justice.
Issues 3 and 4
11. Having granted the claimant’s application for a review, whether the decision dismissing the claimant’s claims or any of them should be confirmed, varied or revoked and, if revoked, whether the claimant’s claims or any of them should be upheld following a new hearing.
12. In light of the above circumstances, the President revoked her decision dismissing the claimant’s claims and conducted a new hearing.
The claimant’s claim in respect of notice pay/breach of contract
13. Article 118 of the Employment Rights (Northern Ireland) Order 1996 provides under the headings:-
Minimum Period of Notice
Rights of employer and employee to minimum notice
(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more—
(a) is not less than one week's notice if his period of continuous employment is less than two years, ...
14. The President was satisfied that in accordance with Article 118, as the claimant had been continuously employed by the respondent for seven months, the respondent was only obliged to provide the claimant with one week’s notice of termination. However, the President was also satisfied that that statutory obligation was subject to any agreement reached between the claimant and respondent that the respondent would provide the claimant with greater notice of termination. In other words, if the claimant and respondent had agreed that the respondent would provide the claimant with more notice than the minimum statutory entitlement, then that agreement would override the minimum statutory entitlement.
15. The claimant contended that the respondent had agreed to provide her with two months’ notice of termination of employment. The respondent strongly disputed the claimant’s contention as set out in her response form and correspondence of 11 October 2014. Having considered the claimant’s sworn oral and documentary evidence, the respondent’s response, the attached documentation and correspondence of 11 October 2014, the President preferred the claimant’s sworn evidence that, as she had left a job to work for the respondent, she asked the respondent for a contract of employment and that in response to her request, the respondent provided her with a written statement of employment particulars. Point 10 of the written statement stated:-
“The amount of notice of termination of your employment you are entitled to receive is 2 MTHS”.
Although the respondent disputed signing ‘anything’ or ‘any agreement’ that the claimant was entitled to two months notice of termination of employment, the President preferred the claimant’s sworn evidence that both she and the respondent did sign the original written statement of employment particulars, that it was retained by the respondent and that the respondent gave the claimant an unsigned copy of it on which the claimant signed her name and wrote contract of employment and when she would be taking her holidays. In preferring the claimant’s sworn evidence, the President took into account that it was corroborated by the unsigned copy of the written statement of employment particulars which the claimant claimed to have received from the respondent and on which the claimant signed her name and wrote contract of employment and when she would be taking her holidays and which she provided to the tribunal. The President also took into account that while a written statement of employment particulars is not itself a contract of employment it offers strong evidence of the terms of the contract i.e. what was agreed between the employer and employee.
16. The President therefore found as a fact that the respondent had agreed that the claimant was entitled to receive two months’ (eight weeks) notice of termination of employment. The President was further satisfied that although the respondent had paid the claimant one week’s pay in lieu of notice, the respondent had breached the claimant’s contract of employment by failing to provide her with the full two months (eight weeks’) notice. The President therefore ordered the respondent to pay the claimant seven weeks’ nett pay by way of damages for breach of contract which amounts to £784 (7 weeks x £112).
The claimant’s claim in respect of holiday pay
17. The claimant’s claim for holiday pay was dismissed. That was because the respondent contended and the claimant accepted that the respondent had paid her holiday entitlement to her.
The claimant’s claim in respect of itemised pay statements
18. Article 40 of the Employment Rights (Northern Ireland) Order 1996 provides:-
(1) An employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.
(2) The statement shall contain particulars of—
(a) the gross amount of the wages or salary,
(b) the amounts of any variable, and (subject to Article (1)) any fixed, deductions from that gross amount and the purposes for which they are made,
(c) the net amount of wages or salary payable, and
(d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.
19. The claimant contended that she had not been provided with itemised pay statements during her employment with the respondent. The respondent disputed the claimant’s claim. At paragraph 6.2 of her response the respondent stated that “all wage slips have been printed and sent” and she attached the claimant’s final payslip which had been sent to the claimant by the respondent’s accountant on 25 April 2014 (the claimant’s employment ended on 10 April 2014), but she did not attach copies of any itemised payslips which she contended had been provided to the claimant in accordance with Article 40. The President therefore preferred the claimant’s sworn evidence that the respondent had not provided her with itemised pay statements during her employment setting out either her gross or nett pay and made a declaration that the respondent had failed to provide the claimant with itemised pay statements in accordance with Article 40 of the Employment Rights (Northern Ireland) 1996 at or before the time at which any payment of wages was made to the claimant. However the President made no Order for any unnotified deductions to be paid by the respondent to the claimant because it appeared that no deductions had in fact been made from the claimant’s gross pay in light of the level of her pay.
20. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
______________________________________
E McBride CBE
President
Date and place of hearing: 17 October 2014, Belfast
Date decision recorded in register and issued to parties: