Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF:    2094/13

 

 

 

CLAIMANT:              Deirdre Davidson

 

 

RESPONDENT:      Metro Travel Ltd, t/a Breakaway Travel Ltd

 

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the respondent is ordered to pay to the claimant the sum of £8,218.51.

 

 

Constitution of Tribunal:

 

Chairman:                Miss E McCaffrey

 

Members:                 Mr F Murtagh

                                    Mr E Miller

 

 

Appearances:

 

The claimant appeared in person.

 

The respondent had submitted a response but was not represented at the hearing.

 

 

 

ISSUES

 

1.         The issues for the panel to consider were:-

 

(1)       whether the claimant had been unfairly dismissed by the respondent,

 

(2)       whether she was entitled to any award in relation to arrears of pay/unlawful deductions from wages, and

 

(3)       whether the claimant was entitled to a payment in lieu of holidays accrued but not taken.

 

 

THE FACTS

 

2.         This is one of four claims all brought against the same respondent.  The claimant commenced employment with the respondent on 7 June 2012.  She had agreed to work 40 hours per week for the respondent company at a salary of £12,000.00 per annum.  Her pay and conditions were confirmed in the written contract of employment provided by the respondent, produced by the claimant to the tribunal.  The tribunal notes the name of the respondent given in the claimant’s claim form is “Brian White” and secondly, “Metro Travel trading as Breakaway Travel”.  The response form lodged by the respondent gives the correct name of the respondent as “Metro Travel Ltd”.  The contract of employment which the claimant produced to the tribunal gives the name of the employer as “Metro Travel Ltd trading as Breakaway Travel” and we note the name of the employer on her payslips is given as “Breakaway Travel Ltd”.  Accordingly we amend the name of the respondent to read “Metro Travel Ltd trading as Breakaway Travel Ltd”.  The response form was lodged in the case of Amanda Kane (Case Ref No:  2101/13), but seems to refer to all four claimants.  Accordingly, we have treated the response as being the same for all four claims.

 

3.         On 9 September 2013, Brian White called all staff to a meeting at the respondent’s premises.  He advised them that the business was closing and that they would all receive one week’s pay in lieu of notice which they did receive.  At the date of the hearing the respondent company is still active.

 

4.         However, the claimant was not satisfied with the amounts received.  The claimant had agreed to work on the basis that she would be paid at least the minimum wage.  Her hours of work were 9.00 am to 5.30 pm with a half hour unpaid break for lunch.  Accordingly, her gross pay was £1,005.88 per month.  Her take home pay was £918.76 per month on the basis of the hours worked.  It was calculated therefore that her hourly rate of pay £5.76.  At the time when the claimant was employed by the respondent the minimum wage was £6.08 per hour from October 2011 to October 2012, from October 2012 to October 2013 the rate was £6.19 per hour.

 

5.         The claimant’s contract specified that she was entitled to one month’s notice when she had been employed for a month up to five years’ service but she received only one week’s pay in lieu of notice from the respondent.  She was aged 45 at the date of dismissal.

 

6.         The claimant confirmed that she had taken 17 days holidays in September 2013 and therefore had taken all her accrued holiday entitlement.  At the date of the hearing she had not found any other work and had been receiving Jobseeker's Allowance from mid-September 2013 to the date of the hearing.

 

 

RELEVANT LAW

 

7.         Employees have the right not to be unfairly dismissed as set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  In relation to issues of procedural unfairness the appropriate provisions are to be found in Article 130A which provides as follows:-

 

 

“Article 130A

 

(1)       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 I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

 

                        (b)       the procedure has not been completed;

 

            (c)       the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements ...”

 

8.         The Statutory Disciplinary and Dismissal procedure set out in Schedule 1 of the 2003 Order comprises three stages: a letter from the employer to the employee setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and the appropriate right to appeal a decision.  Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in a case to which the statutory procedures apply, but they have not been followed due to the failure of the employer.  The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%. 

 

Written Terms and Conditions of Employment

 

9.         An employee is entitled to receive written terms and conditions of employment by virtue of Articles 33(1) and Article 36(1) of the 1996 Order.  By Article 27 of the 2003 Order, where the tribunal finds that no contract has been provided, it shall award two weeks’ gross pay and they award up to four weeks’ gross pay if it considers it just and equitable to do so.

 

The Right Not to Suffer Unauthorised Deductions

 

10.      Under Article 45 and following of the 1996 Order an employee has the right not to suffer unauthorised deductions from his wages unless the deduction is required or authorised to be made by virtue of the statutory provision or provision of the orders contract or the worker has previously signified his agreement in writing or consent to the making of the deduction.

 

11.      Article 55 of the 1996 Order specifies that a worker may present a complaint to an Industrial Tribunal in relation to deductions from wages and that complaint must be presented before the end of the period of three months beginning with the date of the deduction.  If a complaint is brought in respect of series of deductions, then a reference to the deduction or payment is to the last deduction of payment in respect of which a complaint is made.

 

 

Minimum Wage

 

12.      Under the National Minimum Wage Act 1998 workers are to be paid at least national minimum wage for the current year.  For the years at issue in relation to these claims for the year from October 2011 the rate was £6.08 per hour and from October 2012 the rate was £6.19 per hour.  The rate was increased again in October 2013.

 

 

REASONS AND DECISION

 

13.      We accept that the claimant was unfairly dismissed by the respondent in that she was dismissed summarily and without proper notice being given.  We also are satisfied that the claimant was not paid the minimum wage and that her correct pay in accordance with the minimum wage at date of dismissal should have been £247.60 per week (gross) (i.e., £6.19  x  40  =  £247.60).  We are satisfied also that the claimant should have been paid at the rate of £6.08 per hour for the first four months of her employment and thereafter from October 2012 she should have been paid at the rate of £6.19 per hour.

 

14.      We also find that under her contract of employment the claimant was entitled to four weeks’ notice of the ending of her employment but only received one week’s pay in lieu of notice, she is therefore entitled to three weeks’ pay in lieu of notice.

 

15.      We therefore order the respondent to pay to the claimant the following amounts:-

 

1.	Unfair Dismissal Claim
	The claimant’s weekly pay was £247.60 (gross) per week and she had been employed for one year.  She was aged 45 at the date of dismissal.  Her basic award is therefore as follows:-
	£247.60  x  1½  =		£371.40
2.	Compensatory Award  -  Loss of Earnings
	8 October 2013  to  26 February 2014
	£247.60 (gross)  x  21 weeks  =		£5,199.60
3.	Loss of Statutory Rights		£300.00
4.	Uplift for failure to carry out Statutory Disciplinary and Dismissal Procedures at 10%		£557.11
	This claim is subject to the Recoupment Regulations.  The claimant was in receipt of Jobseeker's Allowance from 16 September 2013 to the date of hearing at £71.40 per week.  This period is the protected period and the prescribed element of £5,199.60 exceeds the monetary award by £3,018.91.
4.	Notice Pay
	The claimant was entitled to four weeks’ notice but received only one week’s pay in lieu of notice, she is therefore entitled to pay in lieu of notice as follows:-
	£247.60 (gross)  x  3 weeks  =		£742.80
5.	Arrears of Wages/Unlawful Deductions from Wages
	The claimant should have been paid at the minimum wage rate of £6.08 from 7 June to 1 October and therefore she was underpaid by £12.80 per week for a 16 week period.  She is therefore entitled to arrears of £204.80.		£204.80
	From 1 October 2012 to 9 September 2014 she was underpaid at the rate of £0.43 per hour for a period of 49 weeks.  This is an amount of £17.20 per week and the total shortfall is £842.80.  We therefore order the respondent to pay to the claimant the sum of £1,047.60 in respect of arrears of wages.		£842.80 ________   £1,047.60
6.	We order the respondent to pay to the claimant the total amount of £8,218.51.		£8,218.51

 

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

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:          26 February 2014, Belfast.

 

Date decision recorded in register and issued to parties: