THE INDUSTRIAL TRIBUNALS

CASE REF:  1248/07

CLAIMANT:		Claire Montgomery

RESPONDENT:	Anthony Bennett t/a Mulholland Fruits

DECISION

The majority decision of the tribunal is that the claimant’s claim in respect of unfair dismissal be dismissed, and the unanimous decision of the tribunal is that the claimant’s claims in respect of holiday pay and notice pay be dismissed.

Constitution of Tribunal:

Chairman:		Mr Palmer

Members:		Ms May
Mr Smyth

Appearances:

The claimant did not attend, nor was she represented.

The respondent did not appear, but a written submission was submitted on his behalf.

The Claim

 1.	The claimant’s claim is in respect of Unfair Dismissal, Holiday Pay and Notice Pay.  

Appearances and Determination of the Claims

 2.	The position with regard to appearances is as stated above.  We considered and determined the claims.

Rule Where a Party Fails to Appear

 3.	Paragraphs (5), (6) and (7) of Rule 27 of the Industrial Tribunal Rules of Procedure (which are contained at Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005) provide as follows:-

“(5)	If a party fails to attend or to be represented (for the purpose of conducting the party’s case at a hearing under rule 26) at the time and place fixed for such a hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

(6)	If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.

(7)	At a hearing under rule 26 a tribunal may exercise any powers which may be exercised by a chairman under these Rules.”

Adjournment

 4.	We considered whether we should adjourn the matter.  There were no grounds to do so.  We did not adjourn.

Matters Considered.

 5.	We considered the claimant’s written claim (Claim to an Industrial Tribunal), the respondent’s Response to that claim (Response to an Industrial Tribunal Claim), the written submission made on the respondent’s behalf and also relevant documents contained with the respondent’s bundle of documents, which accompanied the written submission.  We also considered the legal provisions set out below.

Dismissal

 6.	There is agreement in the papers that the claimant was an employee and employed from 26 October 2003 until 21 March 2007.

 7.	By a combination of Article 126 (1) and 140 (1) of the Employment Rights (Northern Ireland) Order 1996 (the Order) an employee, who has been continuously employed for a period of not less than one year, ending with the effective date of termination of the contract of employment, has the right not to be unfairly dismissed.  

 8.	The claimant had the right not to be unfairly dismissed.

 9.	In determining whether a dismissal is fair or unfair it is for the respondent to show the reason, or if there is more than one reason, the principle reason, for the dismissal (Article 130 (1)(a) of the Order).  Article 130(1)(b) of the Order provides that the respondent must also show that it is a reason falling within Article 130(2) of the Order (which includes a reason relating to the conduct of the employee) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position that the dismissed employee held.

10.	The full tribunal was satisfied that the reason for the dismissal was conduct.  We were, therefore, satisfied that the respondent had a potentially fair reason to dismiss the claimant.

Fairness of the Dismissal and Automatic Unfair Dismissal

11.	In a case where the employer shows a statutory reason for the dismissal the determination of the question as to whether the dismissal was 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 in treating the reason as a sufficient one for dismissing the employee and the question is to be determined in accordance with equity and the substantial merits of the case (Article 130(4) of the Order).

12.	Article 130 A (1) of the Order provides as follows:

“(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, and

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

13.	Article 130 A (1) applies in this case.

14.	A matter that caused us some concern, in relation to both Articles 130 (4) and 130A (1), was that the claimant informed the respondent that, because of illness, she was unable to attend a hearing into the allegations made against her.  However, there was no evidence of a medical nature before us to substantiate this.  We (all of the members of the tribunal), therefore, do no accept that the claimant’s illness was such that it would have prevented her from attending a hearing of the allegations and putting her defence.

15.	On consideration of the papers the tribunal, by a majority decision, finds that, considering the matter overall (including the fact that the claimant was given opportunities to put her case), the claim for unfair dismissal is not well-founded and that it be dismissed.

Holiday Pay

16.	In her claim the claimant claimed payment for one week’s holiday.  The respondent in his response to the claim denied that holiday pay was outstanding.  The onus of proof is on the claimant.  We are not satisfied, on the balance of probabilities, that holiday pay was outstanding.  We, therefore, dismiss this part of her claim.  This decision is unanimous.

Notice Pay

17.	The claimant claimed 4 weeks notice pay.  The respondent claimed, in his response to her claim that she received her notice pay of 3 weeks.  The claim and the response agree that the claimant was employed from 26 October 2003 until 21 March 2007.  Under the provisions of Article 118 of the Order the claimant was entitled to 3 week’s notice on dismissal. As in her claim for Holiday Pay the onus of proof is on her. We are not satisfied, on the balance of probabilities, that Notice Pay was outstanding at her dismissal.  The claim in respect of notice pay is dismissed.  This decision is unanimous.

Chairman:

Date and place of hearing:	3 April 2008, Belfast.

Date decision recorded in register and issued to the parties: