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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hall v Denver Watt,T/A Tyrone Belts a... [2010] NIIT 07183_09IT (23 August 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/07183_09IT.html Cite as: [2010] NIIT 7183_9IT, [2010] NIIT 07183_09IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7183/09
3/10
CLAIMANT: Donna Hall
RESPONDENT: Denver Watt, T/A Tyrone Belts and Bearings
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and is entitled to receive the sum of £3,467.50 as compensation for that unfair dismissal. The tribunal also finds that the claimant is entitled to receive the sum of £2,990.00 in respect of wages unpaid for the period from 6 April 2009-30 June 2009.
The tribunal also finds that the claimant is entitled to receive notice pay in the sum of £1,610.00 and a payment in lieu of accrued holidays in the sum of £322.00. The respondent is ordered to pay all these sums to the claimant. The claimant’s claim in respect of sex discrimination was withdrawn and is accordingly hereby dismissed. The claimant’s claim to be entitled to receive written particulars of contract is also dismissed.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Panel Members: Mr E Grant
Ms M Galloway
Appearances:
The claimant was represented by Ms Tracey Overing, Barrister-at-Law, instructed by Simmons Meglaughlin and Orr Solicitors.
The respondent did not appear, did not enter a response to the claims of the claimant and did not instruct any representation.
Preliminary Matter
The title of the respondent was amended to read Denver Watt, T/A Tyrone Belts and Bearings.
Sources of Evidence
1.
The claimant gave evidence on her
own behalf. She also provided various documents which were perused by the
tribunal.
2.
No evidence was submitted by the
respondent.
The Claim
3. The claimant’s claims were for breach of contract, unfair dismissal, a right to receive written particulars of contract, failure to pay wages, failure to pay a redundancy
payment
and sex discrimination.
The Relevant Law
4. The relevant law is found in
the Employment Rights (Northern Ireland) Order 1996:
Article 33 sets out the right to receive a statement of initial
employment particulars.
Article
45 sets out the right not to suffer unauthorised deductions.
Article 126 sets out the right not to be unfairly dismissed.
5. The tribunal also had regard to the provisions of the Employment (Northern Ireland) Order 2003.
The Facts Found
6.
(1) The claimant was
employed by the respondent as an Office Manager and commenced employment
with him on 17 November 2001.
(2) The claimant had been aware for some months that the respondent’s business was not fairing well and there was a possibility that it would have to be sold. However, the claimant had been assured that the respondent would
be trying to safeguard her job.
(3) The claimant’s last day of employment was 1 July 2009. On that day the respondent came in and told her things were not working out and that he was going to sell the business. The claimant asked him if she still had a job and the respondent shrugged, making no other comment. The claimant’s own uncontroverted evidence was that the respondent behaved in a hostile fashion to her, staying in the office with her and not letting her get on with her work. The claimant asked him again if she had a job and the respondent said no. The claimant put it to the respondent that he had previously assured her that even if the business was sold she would still have a position. The claimant confirmed to the tribunal that the respondent said there was nothing
he could do.
(4) The claimant was not advised of any rights to a redundancy payment or pay in lieu of notice. The respondent did not hold any form of meeting with her.
The claimant simply left.
(5) After the claimant left the respondent she made an attempt to resolve her situation by writing to him on 10 August 2009 confirming that he had dismissed her and asking him to abide by the provisions of the Employment (Northern Ireland) Order 2003 by giving her a hearing to discuss the matter.
There
was no response to this letter.
(6)
The claimant then instructed her solicitors
to enter her claim in the Industrial Tribunal.
(7)
On 3 November 2009, the solicitors
for the claimant issued a further letter to the respondent which confirmed
what had happened on the last day of employment and listing the
claimant’s grievances. Once again a hearing was requested and once again the
respondent failed to respond to this letter.
Conclusions
7. The respondent continues to trade.
8. The unanimous decision of the tribunal is that the claimant is entitled to treat herself as unfairly dismissed as the respondent has not satisfied the burden of proof to provide the reason for the claimant’s dismissal. Furthermore, the tribunal considers that the claimant is entitled to receive an uplift of her compensation at the rate of 50% as a result of the respondent’s flagrant disregard of the requirements and responsibilities of the Statutory Dispute Resolution Procedure contained in
Schedule
1 of the Employment (Northern Ireland) Order 2003.
9.
The tribunal also declares that
the claimant is entitled to receive the sum of £2,990.00in respect of wages
unpaid at the date of termination of employment.
10. The tribunal also declares that the claimant is entitled to receive the sum of £1,610.00 in respect of notice pay and a payment for holidays accrued but untaken
at
the date of termination of employment.
Compensation
11. (a) Unfair Dismissal – Basic Award
At the conclusion of her employment with the respondent the claimant had seven completed years of service and was receiving a gross weekly wage for a 20 hour week in the sum of £200.00 and a net weekly wage of £135.00.
Accordingly, the basic award is
calculated as follows:-
200 x 1 x 5 =
£1,000.00
200 x 1.5 x 2 =
£ 600.00
Total Basic Award
£1,600.00
(b)
Compensatory Award Immediate Loss
The claimant claimed benefit from 16 July 2009-6 September 2009 – a period of seven weeks and this is the period to which the prescribed element
relates.
The compensatory award is calculated as follows:-
£135.00 x 7 = £ 945.00 (which is the prescribed
element)
The
prescribed element is uplifted by 50% to £1,417.50 in accordance with paragraph
(d) below
(c)
Loss of Statutory Rights
The tribunal considers that bearing in mind the length of the claimant’s
service with the respondent she is entitled to the figure of £300.00.
No question of future loss arises as the claimant has successfully mitigated
her loss and makes no claim for any ongoing deficit.
(d)
Uplift of 50% under the
Employment (Northern Ireland) Order 2003.
The tribunal considers that the respondent
flagrantly disregarded his responsibilities under the Statutory Dispute
Resolution Procedure despite having them brought to his attention by both the
claimant and her solicitor. In the circumstances the claimant is entitled to
receive an uplift of 50% to her compensatory award.
Basic Award £1,600.00
Compensatory Award (Immediate Loss) £945.00
Loss of Statutory Rights
£300.00
Total Compensatory Award before Uplift £1,245.00
£1,245.00 ÷ 2 = £622.50
Total Compensation for
Unfair Dismissal including Uplift £3,467.50
Compensation for Other Claims
12.
Under Article 45 of the
Employment Rights (Northern Ireland) Order 1996 the claimant is entitled to
receive a payment for wages unpaid for the 13 weeks prior to her termination of
employment. The claimant confirmed that she had calculated that she was
entitled to an average net weekly payment for this period in the sum of
£2,990.00 being 13 weeks times her average net weekly wage of £230.00.
13 x 230 = £2,990.00
Notice Pay
13.
The claimant had seven completed
years of service at termination and is entitled to a payment equalling seven
weeks at £230.00 being her average net weekly wage for the 13 weeks prior to termination
of employment = £1,610.00 as a payment in lieu of notice.
7 x £230.00 = £1,610.00
Holidays
14. The claimant is entitled to 28 days’ paid
holiday per year and her holiday year started on 6 April 2009. By termination
of employment she had accrued seven days and her entitlement is calculated as
follows:-
7 days x £46.00 being average daily net pay at
termination of employment = £322.00
Sex Discrimination Claim
15.
This was not pursued by the
claimant and was dismissed.
Failure to provide Written Particulars
As the claimant is no longer employed by the respondent there is no utility in
declaring what her contract particulars should have been.
16. Summary of Compensation
Unfair
Dismissal Compensation
£3,467.50
Unpaid Wages
£2,990.00
Pay in lieu of Notice
£1,610.00
Accrued Holiday Pay
£ 322.00
Total
£8389.50
17. The Recoupment Regulations apply. Attention is drawn to the notice below, which forms part of this Decision.
18. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: 20 May 2010, Belfast
Date decision recorded in register and issued to parties:
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 |
3,467.50 |
|
(b) Prescribed element |
1,417.50 |
|
(c) Period to which (b) relates: |
16 July 2009- 6 September 2009 |
|
(d) Excess of (a) over (b) |
2,050.00 |
The applicant 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 applicant 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 applicant 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 applicant.
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 applicant 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 applicant, 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 applicant and regardless of any dispute between the applicant and the Department.