Donaghy v Michael Connolly [2010] NIIT 01147

THE INDUSTRIAL TRIBUNALS

CASE REF: 1147/10

CLAIMANT: Tanya Donaghy

RESPONDENTS: 1. Michael Connolly

2. MTC Retail Limited

DECISION

The unanimous decision of the tribunal is as follows:-

1. That the correct respondents to the claim are Michael Connolly and MTC Retail Limited and the title of the proceedings is amended accordingly.

2. That the claimant was unfairly dismissed and the respondents are hereby ordered to pay the claimant compensation in the sum of £5631.00; and

3. That the claimant is entitled to payment in respect of notice pay, holiday pay and pay for a lying week and the respondents are hereby ordered to pay to the claimant a total sum of £2,184.00 in respect of such entitlements.

4. That the claimant is entitled to an additional award under Article 27 of the Employment (Northern Ireland) Order 2003 and the respondents are hereby ordered to pay to the claimant an additional award of £720.00.

Constitution of Tribunal:

Chairman: Ms J Turkington

Members: Mr I Carroll

Ms E May

Appearances:

The claimant appeared and represented herself at the hearing.

The respondent did not submit a response to the claim and did not appear at the hearing.

The Claims

1. The claims were

a) a claim of unfair dismissal;

b) a claim for breach of contract, namely pay in lieu of notice;

c) a claim for a statutory redundancy payment;

d) a claim in respect of accrued holiday pay; and

e) a claim in respect of unpaid wages, namely pay in respect of a lying week

The Issues

2. The issues to be determined by the tribunal in relation to the claim of unfair dismissal were:-

(a) whether the respondents had complied with the statutory dismissal procedure pursuant to The Employment (Northern Ireland) Order 2003 (“the 2003 Order”) and The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the Dispute Resolution Regulations”) and therefore whether the dismissal of the claimant was automatically unfair; and

(b) if appropriate, the compensation to be awarded to the claimant

3. The issues to be determined in relation to the claim for pay in lieu of notice were whether the claimant was entitled to receive notice of termination of her employment. If so, what period of notice was she entitled to and whether she had received such notice or pay in lieu of notice.

4. In respect of the claim for a statutory redundancy payment, the tribunal had to determine whether the claimant’s employment was terminated by reason of redundancy and, if so, whether the claimant was entitled to a statutory redundancy payment.

5. The issues to be determined in respect of the claim for holiday pay were the number of days holiday which the claimant had accrued but not taken at the date of termination of the claimant’s employment and the payment due to the claimant in. respect of such holidays

6. In respect of the claim of unpaid wages, the tribunal had to determine whether the claimant was entitled to payment in respect of a lying week.

Disposal of the claim in the absence of the respondent

7. The respondent had not presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing. The tribunal was also satisfied that the Notice of Hearing had been sent to the respondent in good time before the hearing. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

8. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant. The tribunal also considered an e-mail message from the first respondent in which he submitted that the correct respondent to the claim was MTC Retail Limited.

Facts of the Case

9. Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-

10. The claimant who was born on 15 September 1975 was employed as a cook in a restaurant business in Claudy. The claimant was employed in this post from April 2004 to 24 December 2009.

11. The claimant understood that her employer was Michael Connolly and that he personally was the owner of the business. Pay slips received by the claimant referred to MTC Retail Limited. The claimant did not receive any written statement of the main terms and conditions of her employment.

12. Throughout her employment, the claimant was paid £6.00 per hour (gross). The claimant worked 30 hours per week and her net pay was £168.00 per week. In the last few weeks of her employment, the claimant’s hours of work were reduced below her normal 30 hours per week.

13. Around 21December 2009, the claimant and her colleagues heard that the restaurant business was to be closed. On or about 24 December 2009, Mr Michael Connolly spoke to the claimant and her colleagues in the kitchen of the restaurant and told them that, after finishing time that day, the restaurant would cease trading and they were no longer required. Mr Connolly made it clear that the business would not be re-opening after Christmas. He said that he would ask his solicitors to organise redundancy payments for the staff, but this never occurred.

14. The claimant did not receive any letter indicating that the respondent was contemplating the dismissal of the claimant. No meeting was held with the claimant to discuss her possible dismissal. The claimant was not offered an appeal in relation to her dismissal.

15. The claimant did not receive any notice monies nor any redundancy payment.

16. Since the termination of her employment, the claimant has commenced other part-time employment on 26January 2010 working 16 hours per week for which she earns £6.00 per hour (gross). The claimant is continuing to look for other employment to increase her hours of work, but at the date of the hearing, had been unable to find such employment. The claimant was hopeful that that she would be working 30 hours per week again by September 2010.

17. The respondent’s leave year ran from 1 April to 31March. The claimant was entitled to holidays under the Working Time Regulations, that is 5.6 weeks paid leave per annum. During the final holiday year, the claimant received only one week’s paid holiday.

18. At the beginning of her employment, the claimant worked a lying week, that is she did not receive any pay for her first working week. The claimant understood that this was to be paid at the end of her employment.

19. On 26 February 2010, the claimant’s solicitors wrote to Mr Connolly seeking written reasons for dismissal and setting out a claim in respect of pay in lieu of notice, accrued holidays and payment for a lying week. The claimant’s solicitors also sought payment of a statutory redundancy payment. No response was received to that correspondence.

Statement of Law

20. The statutory dismissal procedure introduced by the 2003 Order applies in this case. In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Step 1 – written statement of grounds for potential dismissal and invitation to a meeting.

Step 2 – meeting to discuss the proposal to dismiss the employee.

Step 3 - appeal meeting.

By Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), where the non-completion of the statutory dismissal procedure is attributable to the employer, the dismissal is automatically unfair.

21. Pursuant to Article 17 of the 2003 Order, where it appears to the tribunal that the non-completion of either the statutory dismissal procedure or the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50 per cent.

22. By article 118 of the 1996 Order, the notice required to be given by an employer to terminate the contract of employment of an employee is one week’s notice for each year of continuous employment between 2 years and 12 years.

23. Under article 170 of the 1996 Order, an employer shall pay a redundancy payment if an employee is dismissed by reason of redundancy. By article 174 of the 1996 Order, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the employer has ceased to carry on the business for the purposes of which the employee was employed.

24. Under Regulation 13 of the Working Time Regulations 1998 (as amended), a worker is entitled to a total of 5.6 weeks paid leave in any leave year. By Regulation 14 of the Working Time Regulations, where a worker’s employment is terminated during the course of his leave year and the proportion of leave taken by the worker is less than the leave accrued at the termination date, then the employer shall make him a payment in lieu of the leave which was accrued but not taken.

25. By Article 45 of the Order, an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction. A complete failure to pay wages on any occasion constitutes a deduction from wages.

26. The statutory grievance procedure set out in the 2003 Order is applicable in this case. The standard statutory grievance procedure requires the employee to put her complaint in writing to the respondent and for the respondent to invite the employee to a meeting to discuss the grievance and then an appeal meeting. The consequences of non-completion of the statutory grievance procedure are as set out at paragraph 20 above.

27. By article 27 of the 2003 Order, where a tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and when the proceedings were begun the employer was in breach of his duty under Article 33 or 36 of the Order to provide to the employee a statement of main terms and conditions of employment, the tribunal shall increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances to do so, increase the award by the higher amount instead. The minimum amount is 2 weeks pay and the higher amount is 4 weeks pay.

Conclusions

Correct identity of the respondent

28. It was clear from the evidence of the claimant that she understood her employer to be Mr Michael Connolly. However, on the other hand, the pay slips received by the claimant referred to MTC Retail Limited. The claimant had not received a Statement of Main Terms and Conditions of Employment which would have served to clarify the correct identity of the employer. In the circumstances and given the lack of clarity as to the identity of the employer in this case, the tribunal decided that it was appropriate that any award should be made against both Michael Connolly and MTC Retail Limited. Accordingly, the title of the proceedings is hereby amended by adding MTC Retail Limited as an additional respondent.

Unfair dismissal

29. In light of the facts found, the tribunal had no hesitation in concluding that none of the requirements of the statutory dismissal procedure were complied with in this case. The respondent did not send a step 1 letter to the claimant nor did the respondent conduct a step 2 meeting or a step 3 appeal meeting. The tribunal was satisfied on the basis of the facts found that the non-completion of the statutory dismissal procedure was wholly attributable to the respondent. The tribunal therefore concluded that the dismissal of the claimant was automatically unfair in accordance with Article 130A of the 1996 Order. It was not therefore necessary for the tribunal to consider whether the dismissal was fair in all the circumstances.

30. Accordingly, the unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the claimant is entitled to compensation for such unfair dismissal.

31. Having considered the claimant’s evidence regarding the attempts made by her to find alternative employment and taking account of the present economic conditions, the tribunal considered that it was likely that the claimant would find other employment with the same hours of work in or around September 2010. Accordingly, the tribunal determined that it would be just and equitable in all the circumstances for the claimant to be awarded ongoing loss of earnings up to

1 September 2010.

32. The tribunal found that the respondents entirely failed to follow each and every requirement of the statutory dismissal procedure and indeed made no attempt to follow any procedure whatsoever in respect of the claimant’s dismissal. The tribunal was also struck by the fact that the claimant’s dismissal in this manner took place on Christmas Eve. In all the circumstances, the tribunal took the view that it was just and equitable for the award to the claimant in respect of unfair dismissal to be increased to the fullest extent allowed by article 17 of the 2003 Order, that is by 50 per cent.

Compensation for unfair dismissal

33. Having determined that the claimant was unfairly dismissed, the tribunal went on to consider the appropriate remedy. The claimant did not seek reinstatement or re-engagement. The tribunal considers that the appropriate compensation in this case in accordance with article 152 to 158 of the Employment Rights (Northern Ireland) Order and article 17 of the Employment (Northern Ireland) Order is as follows:-

(A) Basic award

gross weekly pay (£6 x 30 hours) X 5 = £900.00

(B) Compensatory award

Immediate loss to date of hearing:-

4 weeks before the claimant obtained alternative employment

= 4 weeks @ £168 (net) per week = £672.00

A further 28 weeks @ (£168 - £96 per week) = £2,016.00

Future loss of earnings from date of hearing to 1 September 2010:-

3 weeks @ (£168.00 per week –£96.00

earnings from new employment) = £216.00

Loss of statutory rights £250.00

Total monetary award for unfair dismissal £900.00

£ 672.00

£2,016.00

£ 216.00

£ 250.00

£3,154.00

Increase in monetary compensatory award of 50%

Add £1,577.00

Total compensatory award after increase £4,371.00

Total award for unfair dismissal = £5,631.00

Prescribed element = Nil

The tribunal can see no basis for a reduction for contributory fault in this case.

Accordingly, the tribunal hereby orders the respondents to pay to the claimant compensation for unfair dismissal in the sum of £6081.

Pay in lieu of notice

34. The claimant was employed for a period in excess of 5 years. Therefore, the claimant was entitled to 5 weeks notice of the termination of her employment. The claimant received neither notice of termination nor pay in lieu of notice. Accordingly, the claimant is entitled to notice monies as follows:-

5 weeks x £168 per week (net) = £840.00

Statutory redundancy payment

35. Since the respondents’ business ceased trading, the tribunal had little hesitation in concluding that the claimant was dismissed by reason of redundancy and that she was therefore entitled, in principle, to a statutory redundancy payment. However, since the claimant is entitled to a basic award for unfair dismissal, the claimant is not entitled to a separate award in respect of a statutory redundancy payment. The tribunal therefore makes no award in respect of a statutory redundancy payment.

Holiday pay

36. In relation to the claim for holiday pay, the tribunal was satisfied that the claimant was entitled to 5.6 weeks paid holiday per annum pursuant to the Working Time Regulations. At the date of termination of her employment, the claimant had accrued holidays which she had not taken. The claimant is therefore entitled to holiday pay calculated as follows:-

Holiday year = 1 April to 31 March

Date of termination of employment – 24 December (38 weeks of holiday year worked)

Leave accrued at date of termination = (38 weeks/52 x 5.6 weeks) = 4 weeks

Less one week’s leave taken = 3 weeks

Therefore the claimant is entitled to 3 weeks’ holiday pay

= 3 x £180 (gross) = £540.00

Lying week

37. The tribunal was satisfied that the claimant had worked a week without pay at the beginning of her employment on the basis that she was to receive payment in respect of this week at the termination of her employment. The claimant did not receive such payment. Accordingly, the claimant is entitled to pay in respect of this lying week as follows:-

1 week’s pay @ £180.00 per week (gross) = £180.00

Increase in award – non-completion of the statutory grievance procedure

38. The tribunal considered that a letter of grievance sent by the claimant’s solicitors to the respondents on 26February 2010 in respect of notice pay, holiday pay and pay for a lying week constituted full compliance by the claimant with step 1 of the statutory grievance procedure. However, the respondents did not make any response to that letter and therefore the statutory grievance procedure was not completed in this case. The tribunal was satisfied that the non-completion of the statutory grievance procedure was wholly attributable to the respondents. The respondents made no effort to comply with that procedure by offering to meet the claimant to discuss her grievance. Accordingly, the tribunal determined that it was appropriate in the circumstances for the award to the claimant in respect of notice pay, pay for a lying week and holiday pay each to be increased by 40%.

Award for pay in lieu of notice = £840.00

Increase of 40% Add £336.00

Total award for notice pay after increase = £1,176.00

Award in respect of holiday pay = £540.00

Increase of 40% Add £216.00

Total award for holiday pay after increase = £756.00

Award for pay for lying week = £180.00

Increase of 40% Add £72.00

Total award for pay for lying week = £252.00

Total £2,184.00

39. The tribunal found as a fact that, throughout her employment, the claimant never received a statement of main terms and conditions of employment. The tribunal therefore determined that it was appropriate to make an award under article 27 of the 2003 Order. In view of the respondents’ complete disregard demonstrated by the respondents in respect of many of their statutory obligations as employer, the tribunal considered it appropriate to award the higher amount, that is 4 weeks pay calculated as follows:-

4 weeks pay @ £180 per week (gross) = £720.00

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

Chairman:

Date and place of hearing: 10 August 2010, Belfast.

Date decision recorded in register and issued to parties:

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Donaghy v Michael Connolly [2010] NIIT 01147_10IT (22 September 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/01147_10IT.html Cite as: [2010] NIIT 01147_10IT, [2010] NIIT 1147_10IT

Industrial Tribunals Northern Ireland Decisions

Disposal of the claim in the absence of the respondent