THE INDUSTRIAL TRIBUNALS 

CASE REF:	1876/04

CLAIMANT:			Joan Gillespie

RESPONDENTS:		Mr P Wilson and Mr B Anderson
				t/a The Fairhill Bar

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondents and the tribunal orders the respondents to pay to the claimant the sum of £731.72 compensation.

Appearances:

The claimant appeared and represented herself for the first day of the hearing and for the second day was represented by Ms Quinn, Solicitor, of James Ballentine & Company, Solicitors.  

The respondents were represented by Mr A Henry, an employee of the respondents.  

REASONS

1.	The tribunal heard oral evidence from the claimant on her own behalf and from her daughter, Ms Christina Gillespie, and also heard evidence from Mr P Wilson, the first named respondent and Mr A Henry, respondents’ bar manager.  The tribunal also inspected original and copy documentation adduced in evidence.  There was a significant conflict as between the respective parties in respect of a number of material facts which the tribunal resolved in finding the facts as set out below.

2.	In her originating application the claimant complained that she had been employed and had been unfairly dismissed.  At an earlier hearing the tribunal determined that the respondents were the employers of the claimant and the proper respondents in these proceedings and the respondents conceded that they had employed the claimant and contended, in the notice of appearance, that the claimant had been dismissed, the reason for that dismissal being, firstly, inadequate performance of her duties on the claimant’s part and, secondly, poor time-keeping.  At hearing, the respondents sought to amend the defence and withdrew the contention that one of the reasons for the claimant’s dismissal had been poor time-keeping, notwithstanding what had been earlier stated in the notice of appearance.

THE ISSUES

3.	In view of the concession on the part of the respondents that the claimant had been employed and was dismissed, it was contended, for inadequate performance of her duties, the tribunal had to determine whether or not that was the reason for the dismissal and, if so, whether the dismissal was fair or unfair in all respects.

THE TRIBUNAL’S FINDINGS

4.	On foot of the evidence adduced before it, the tribunal made the following findings of fact:-

(a)	The respondents were the proprietors in partnership of licensed premises, the Fairhill Bar, situated at Church Street, Ahoghill, Ballymena, County Antrim.  The claimant commenced employment with the respondents as a cleaner on 3 September 2001.  No written terms and conditions of employment were furnished to her at any time.  At the commencement of the employment she met with Mrs Ellen Wilson, mother of the first respondent, who showed her a typewritten list of duties for cleaning staff and briefly explained what duties were required to be performed by the claimant.  The claimant also met with the bar manager, Mr Henry, who also discussed with her what duties were required of her. The claimant must have been clear as to these duties, in the tribunal’s view.

(b)	It was agreed that the claimant would be paid by the respondents a wage equivalent to the hourly rate applicable for the national minimum wage and that the claimant would be paid on a monthly basis and would customarily work on each Tuesday and Thursday from 8.00 am to 11.00 am.  At the material time the claimant’s gross weekly wage (which was also her net weekly wage) was £59.08.  

(c)	The tribunal regrettably was faced with a considerable conflict in the evidence between the claimant and the respondents’ witnesses concerning whether or not the claimant received oral and written warnings in relation to the performance of her job duties during the course of her employment.  It must be said that the tribunal was faced with the rather unsatisfactory situation of finding the evidence of both the claimant and of the respondents’ witnesses, in many respects, to be unsatisfactory, ranging as it did from the vague and imprecise to evidence that was difficult to find at all convincing.  The claimant’s evidence was inconsistent and contradictory at times and there was also considerable doubt harboured by the tribunal as to whether or not it was receiving a true account from the respondents, including some doubt as to the provenance of some of the documentary evidence placed before the tribunal.

(d)	With some difficulty, it must be said, the tribunal resolved the foregoing conflicts by finding that the respondents perhaps did have some issue with the quality of the claimant’s performance of her work duties; however any perceived difficulties were certainly not brought to the claimant’s attention in the express and unambiguous manner as claimed by the respondents.  The tribunal does not accept that the claimant received from the respondents, whether that be by Mr Henry speaking with her or writing to her, nor by any of the partners doing the same, what could be termed any formal oral or written warnings concerning her job performance such as might have lead the claimant to a clear understanding that disciplinary proceedings could be, or were to be, or were being, taken against her.  

(e)	The claimant attended her employment on 24 April 2004.  Mr Henry spoke with her and announced to her that she was going to be dismissed.  Mr Henry wrote out in manuscript a note addressed ‘To Whom It May Concern’ which stated ‘Joan Gillespie’s job title as cleaner was terminated on Saturday 24 April 2004 as her services were no longer required’.  The tribunal believes that that note was prepared by Mr Henry and was given to the claimant for the purposes of assisting her in claiming state benefits consequent upon her dismissal.  The tribunal is in no doubt that the claimant was summarily dismissed by Mr Henry on behalf of the respondents on 24 April 2004 without any of the customary procedural formalities that would normally precede a summary dismissal and which would constitute good and proper industrial relations practice.  Indeed, the tribunal noted that Mr Wilson conceded in his evidence to the tribunal that the decision to dismiss the claimant had been taken by him at a meeting with Mr Henry a few days before 24 April 2004 and that no thought whatsoever had been given either by him or by Mr Henry to the invoking of any customary disciplinary procedures, nor to the convening of any disciplinary hearing, prior to the decision as to whether or not to dismiss the claimant being taken by the respondents.

(f)	After the dismissal had occurred the claimant sought state benefits but was not apparently entitled to any benefits.  The tribunal shall comment below upon the situation regarding the claimant’s endeavours to find alternative work after the dismissal had occurred.  Again, it must be said that the tribunal found the claimant’s evidence in regard to this somewhat unsatisfactory as will be mentioned below.

THE APPLICABLE LAW

5.	In respect of the applicable law, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as ‘the Order’) provides at Article 126 of the Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the Order provides for the test of fairness concerning dismissal by an employer.  It is for the employer to show the reason (or, if more than one, the principal reason) for a dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal.  The specified reasons set out in Article 130 include capability or conduct of an employee.  Article 130(4) of the Order provides that where the employer has shown the reason for dismissal and that it falls within one of the specified categories (or some other substantial reason) the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer, 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 shall be determined in accordance with equity and the substantial merits of the case.

6.	In the application of this statutory guidance, the leading authority remains the case of Iceland Frozen Foods Limited -v- Jones [1982] IRLR 439 which includes the following:-

(i)	An industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal fair.

(ii)	In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another.

(iii)	The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  

7.	In respect of the issue of fair procedure, the House of Lords in the case of      Polkey  v  A E Dayton Services Limited [1987] IRLR 503 expressed the view, in regard to a redundancy dismissal but also generally dealing with the issue of fair procedure, that a dismissal without any warning will normally be unfair unless the employer can reasonably conclude that such a warning would be utterly useless. 

8.	If a tribunal makes a finding of unfair dismissal, and an Order for re-engagement or re-instatement is inapplicable, a tribunal may make an Order for compensation including both a basic award, under Article 153 of the Order, and a compensatory award under Article 157 of the Order, the compensatory award being such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.

THE TRIBUNAL’S DETERMINATION

9.	Having applied the relevant principles of law to the findings of fact made by the tribunal, the tribunal here sees a case where the employer took no steps whatsoever to provide for a statement of written terms and conditions of employment which such statement would customarily include a disciplinary code and clear and comprehensible disciplinary and grievance procedures.  The respondents fell far short, in the tribunal’s view, of engaging it in any of the proper and well-established procedures for dealing with this claimant as an employee. These shortcomings included not only such matters as the absence of written terms and conditions of employment, or indeed a failure to provide itemised pay statements to the claimant, but also and materially the respondents appear to have had no conception whatsoever as to fair and proper procedures concerning the disciplining and the potential and ultimate dismissal of an employee.  The respondents departed fully from the minimum standard of proper and fair procedure that ought to have been adopted. The tribunal saw no mitigating circumstances such as would assist the respondents. The tribunal is satisfied, on balance, that the respondents did take the decision to dismiss the claimant for some reason connected with the performance of her duties; however they dismissed her summarily and without warning in a manner which was entirely unfair.  For that reason the tribunal finds that the claimant was unfairly dismissed.  

10.	In regard to the matter of remedy, the claimant sought compensation only.  Having enquired of the claimant as to any efforts made on her part to mitigate her loss, the tribunal was not satisfied with the evidence given by the claimant and accordingly finds that the claimant did not make what might be expected to be fair and reasonable efforts to mitigate her loss by gaining other appropriate employment within what the tribunal would regard as being a reasonable period of time after the date of dismissal. The claimant had other part-time work. In this regard, the tribunal considered the likely local demand for persons engaged in the chosen occupation of the claimant, both domestic and industrial.  The tribunal therefore determines that an appropriate period to provide for loss after the effective date of termination, 24 April 2004, would be a period of six weeks and therefore computes compensation on that basis.

11.	The tribunal therefore awards compensation as follows:-

Basic Award

The claimant was employed by the respondents for a continuous period of two years and was aged forty five at the effective date of termination.  The weekly wage both gross and net was £59.08.

£59.08 x 3 =  					£177.24

Compensatory Award

Loss of salary from date of dismissal for a period of six weeks thereafter to conclude the period of determined loss.

£59.08 x 6 =						£354.48

There was no further loss determined and no deductions from the foregoing.

Loss of Statutory Industrial Rights

The tribunal makes an award of £200.00.

TOTAL -						£731.72

No recoupment applies in this case as the claimant did not receive any benefits to which the recoupment provisions would apply.

The tribunal therefore orders the respondents to pay to the claimant the sum of £731.72.

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

Chairman:

Date and place of hearing:	8 June and 23 June 2005, Belfast.

Date decision recorded in register and issued to parties: