THE INDUSTRIAL TRIBUNALS

CASE REF:	1894/09

CLAIMANT:			Kathleen Teggart

RESPONDENT:		Jonathan Cochrane & Joan Cochrane t/a Skippers

DECISION

The unanimous decision of the tribunal is;-

1.	that the title of the proceedings be amended to show the respondent as Jonathan Cochrane and Joan Cochrane t/a Skippers;

2.	that the claimant was unfairly dismissed; 

3.	that the respondent to pay the claimant the sum of £12,156.80 by way of compensation.

Constitution of Tribunal:

Chairman:		Mr Davey

Members:		Mr Devlin
			Mr Hanna

Appearances:

The claimant was represented by Ms S Lunny, Solicitor, of P.J. McGrory & Co Solicitors.

The respondents were not represented and did not file a response.

Reasons

1.	The claimant’s case was that she had been unfairly dismissed from her employment as a counter assistant and fryer at the respondent’s premises in Ardglass.  She also claimed that the respondents failed to comply with the statutory dismissal procedures and that accordingly any award of compensation made by the tribunal should be increased.

2.	The claimant’s evidence was that she had been employed as a counter assistant and fryer at the respondent’s premises in Ardglass from May 2007 until January 2009.  She was paid by the hour at a rate of £4.77 per hour as at the date of her dismissal and her hours varied from week to week.  She had not been the subject of any disciplinary action and, as far as she was aware, her conduct had been satisfactory.  On 6 January 2009 the claimant came to work as usual and carried out all the normal preparations for opening.  She opened the premises.  Sometime after that her manager, Shelley Cochrane, arrived.  She criticised the claimant because there was salt on her uniform; the claimant went to the kitchen and began to clean the cooker and surrounding worktops when Ms Cochrane confronted her with an accusation that she was responsible for £20 in coins which had gone missing.  It was put to the claimant that she was the only one who could have taken them.  The claimant pointed out that a different shift had been in the premises in the interim period.  However Ms Cochrane continued to make the allegations in the presence of another employee and some customers, finally telling the claimant to get out.  The claimant took her coat with a view to leaving but when she went to get her bag it had been moved.  She took her bag and left, then discovered that her keys were missing.  She returned and asked Ms Cochrane if she knew where her keys were.  The claimant found her keys.  She presumed that Ms Cochrane had moved the bag.  Subsequent to this she had no contact with her employers other than to receive her P45 and her holiday pay.  She was visited by the police who took a statement from her under caution.  However, subsequently, the claimant received a letter from the Public Prosecution Service to indicate that she was no longer involved and that no prosecution would take place.   The claimant signed on for Jobseekers Allowance which was effective the week following her dismissal.  She had made numerous applications for employment but without success.  

3.	The claimant presented as a credible and convincing witness.  The tribunal accepted her evidence.

4.	The tribunal was satisfied that the claimant had been dismissed.  Taken in the context of the accusations which were made against her, the instruction to “get out” was a convincing indication of a dismissal.  When no enquiry was subsequently made as to whether she was returning and no contact took place other than the arrival of the P45 and holiday pay it was clear that a dismissal was effected on that day, namely 6 January 2009.  Once it is established that a dismissal has occurred it is for the employer to show that the dismissal was for one of the reasons contemplated in the legislation and that in all the circumstances the dismissal was fair.  The respondents made no response and put forward no reason or statement whatsoever.  In the absence of evidence as to reasons it was difficult for the tribunal to do other than find that the respondents had failed to establish that the reasons for dismissal were within those mentioned in the legislation.  In any event, on the evidence before the tribunal, the lack of any adequate investigation, the abruptness of the dismissal itself, without benefit of any kind of hearing, and the lack of any appeal structure would all render the dismissal unfair even if an adequate reason could be established.  Certainly, on the basis of the evidence before the tribunal, the statutory procedures laid down by the Employment (NI) Order 2003 were not complied with.

5.	The claimant sought compensation.  She did not seek reinstatement or reengagement.  The tribunal considered that compensation was the appropriate remedy.  The claimant had produced a number of payslips to the tribunal.  Taking these payslips, and after adjusting for one week when the claimant was taking exams, and her final week which was incomplete, the tribunal found that her average number of hours per week was 35.  Her basic rate was £4.77 per hour making a basic weekly wage of £166.95 gross.  This would produce a net wage, after allowing for tax and national insurance, of £152.29.

6.	The claimant had one complete years service at the time of her dismissal, and given that she was at that time 19 years of age, the standard basic award would amount only to one half of a week’s gross pay.  However, by virtue of Article 154(1A) of the Employment Rights (NI) Order 1996 the basic award falls to be increased to the amount of four weeks pay where the employer has failed to comply with the statutory dismissal procedures.  The Article provides that the tribunal shall increase the award in this way but goes on to suggest that it does not have to do so if it considers that the increase would result in injustice to the employer.  The tribunal can see no reason to interfere with the instruction given in the relevant Article to make the increase.  Accordingly the claimant is entitled to four weeks gross pay at £166.95 per week, amounting in all to £667.80 by way of a basic award.  The claimant is also entitled to compensation for the loss of her statutory rights which the tribunal measures at £250 and to one week’s nett pay of £152.29 in lieu of notice to correspond with her one year’s service.

7.	The claimant is also entitled to a compensatory award.  The tribunal was satisfied that the claimant had made and was making reasonable efforts to mitigate her loss by obtaining further employment. She had not, as of the date of hearing, been successful in these efforts and, given the conditions in the labour market, the tribunal considered that it was likely that further time would elapse before she obtained employment.  The tribunal considered that one year from the date of her dismissal would be an appropriate period on the basis of which to calculate the compensatory award.  Accordingly the claimant is entitled to compensation for a loss of 52 weeks net wages at £152.29 per week amounting to £7,919.08.  

8.	The Employment (NI) Order 2003 makes provision for the increase of the compensatory award where employers fail to comply with the statutory dismissal procedures.  Article 17(3) of that Order provides that awards in such cases shall be increased by 10% and may be increased by a further amount up to 50%.  While it is true that in this case the employer concerned was a small employer from whom less might be expected than from a major employer, the manner of this particular dismissal, with its accompanying accusations of theft, made in public and resulting in police involvement, together with a total failure to conduct any adequate investigation or hearing or to provide any kind of appeal, lead the tribunal to the view that an increase of 40% would be appropriate.  The compensatory award amounted to £7,919.08. An increase of 40% would amount to £3167.63 giving a total of £11,086.71.

The total amount payable by the respondent is accordingly:-

Loss of statutory rights	=	£250.00

Notice Pay			=	£152.29

Basic Award			=	£667.80

Compensatory Award	=	£11,086.71

Grand Total			=	£12,156.80

9.	Recoupment

The recoupment provisions apply.  The total award is £12,156.80; the prescribed element is £7,919.08.  The period to which the prescribed element applies is 6 January 2009 to 5 January 2010.

This award is subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.  The attention of the parties is drawn to the notice below which forms part of this decision. 

10.	Interest

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing:  	7 August 2009, Belfast.

Date decision recorded in register and issued to parties:

Case Ref No:  01894/09

CLAIMANT:		Kathleen Teggart 

RESPONDENT:		Jonathan Cochrane & Joan Cochrane t/a Skippers 

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	                £12,156.80	
(b)  Prescribed element	                  £7,919.08	
(c)  Period to which (b) relates:	6/01/09 – 5/01/2010	
(d)  Excess of (a) over (b)	                  £4,137.72	

The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.