Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  703/10

 

 

 

CLAIMANT:                          Aine Logue

 

 

RESPONDENTS:               1.         Harleys Café Bar & Restaurant Ltd

                                                2.         Kieran Bradley

T/a Harley’s American Café Bar & Steakhouse

                                                3.         Department for Employment & Learning

 

DECISION

The unanimous decision of the tribunal is that the claimant is entitled to:-

 

            (a)       a redundancy payment of £660.75;

 

            (b)       holiday pay of £793.72; and

 

            (c)        compensation for unfair dismissal in the sum of £6,766.93;

 

                        against the second-named respondent. 

 

The claims against the first-named respondent and third-named respondent are dismissed.

 

Constitution of Tribunal:

Chairman:                Mr P Kinney

Members:                 Mr Ian Carroll

                                    Mr Robert Hanna

 

Appearances:

The claimant was represented by Ms Mercer, of the Law Centre (NI).

The first and second-named respondents did not appear and were not represented.

The third-named respondent was represented by Mr Cruickshanks of Department for Employment & Learning.

 

Facts

 

1.         The claimant was 35 years of age at the date of termination of her employment.  She was employed by the second-named respondent, Kieran Bradley, from 1 August 2007 until the date of her termination of her employment on 24 January 2010.  The claimant was dismissed for redundancy.  The claimant earned £220.25 per week.  On 7 January 2010 the claimant received a letter dated 6 January 2010 from her employer stating that the business had ceased trading.  She was invited to attend a meeting on 9 January 2010.  The meeting on 9 January 2010 was brief and consisted of the claimant being told that she would get paid redundancy pay two weeks after the business closed.  The claimant was not offered any opportunity to discuss the matter and was not offered any alternative employment within the respondent’s businesses.  The claimant was also handed a letter dated 8 January 2010 confirming that her employment was terminating.  The letter also offered a right of appeal.  The claimant felt the decision to make her redundant was a foregone conclusion from the start and there was no point appealing the decision.

 

2.         The claimant contacted the business accountant who assisted her in filling in a RP1 form for the purposes of the third-named respondent.  The employer agreed the content of the form and, in particular, agreed the claimant’s holiday entitlement was 14 days.  The claimant subsequently sent grievance letters to the employer but obtained no response.  The claimant has never received any payment for redundancy or for holiday pay. 

 

3.         The claimant obtained employment from 4 March 2010 to 10 April 2010, had a net weekly wage of £175.69, leaving an ongoing loss of £13.29 per week.  The claimant then obtained part-time work with the North Eastern Education & Library Board earning £108.45 per week for 15 weeks and then further work with the Board for another 13 weeks (to the date of hearing) at a net weekly wage of £137.79.

 

4.         After hearing the claimant’s evidence the tribunal is satisfied that her claims against the second-named respondent are well-founded and we make the following awards:-

 

                        (1)       Redundancy pay

 

The claimant is entitled to two weeks redundancy pay based on her gross weekly pay of £220.25.  The claimant is therefore entitled to £440.50 for redundancy pay.  To this should be added an uplift under the provisions of Article 17 of the Employment (Northern Ireland) Order 2003 under which the tribunal shall increase any compensation awarded by a figure of at least 10% and up to a maximum of 50% if a statutory grievance procedure applies.  The procedure has not been completed and non-compliance of the procedure is wholly or mainly attributable to failure by the employer.  In this case the statutory grievance procedure did apply and the tribunal finds that the           non-completion of the procedure is attributable to failure by the employer.  In this case the tribunal finds that it is appropriate to uplift the compensation by 50% to reflect the failure by the employer to carry out any steps whatsoever to comply with the statutory procedure.  The total sum for redundancy pay, therefore, is £660.75.

 

                        (2)       Holiday pay

 

The claimant is entitled to 14 days’ holiday pay.  This is based on the claimant’s net weekly wage.  The sum due for holiday pay is £529.14.  The claimant is again entitled to an uplift for failure to comply with the statutory grievance procedure, making the total figure for holiday pay of £793.72.

 

                        (3)       Unfair dismissal

 

Under the terms of Article 130A of the Employment Rights (Northern Ireland) Order 1996 an employee is unfairly dismissed if one of the statutory dismissal and disciplinary procedures set out in the Employment (Northern Ireland) Order 2003 applies in relation to the dismissal, that procedure has not been completed and the              non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.  In this case the tribunal is satisfied that the employer has failed to comply with the requirements of the statutory dismissal and disciplinary procedures and the claimant’s dismissal is therefore automatically unfair.  Under Article 154 of the 1996 Order where an employee is regarded as unfairly dismissed by virtue of Article 130A the industrial tribunal shall increase the basic award to the amount of four weeks pay.  The claimant is therefore entitled to the sum of £881.00.  To prevent duplication of award however from this figure should be deducted the redundancy payment award of £440.50, leaving a basic award figure of £440.50.

 

                        (4)       Compensatory award

 

In calculating the compensatory award the tribunal took into account the attempts made by the claimant to obtain further work in the current economic climate and it is the view of the tribunal that a future loss of 26 weeks should be allowed, based on the claimant’s net weekly pay.  Taking into account the earnings of the claimant since the dismissal, the total award for the compensatory figure is £4,218.88.  To this should be added the claimant’s loss of statutory rights in a figure of £300.00, making a total compensatory award, before uplift, of £4,518.88. 

 

Under the provisions of the Employment (Northern Ireland) Order 2003 where an employer fails to follow the statutory dismissal procedure the tribunal should uplift the amount of a compensatory award by at least 10% and up to a maximum of 50%.  In this case the claimant was given no advance warning of the impending closure of the business.  After the termination of her employment she wrote to her employer without reply.  However, the employer did offer a right of appeal which the claimant did not exercise, albeit because she thought that this would be pointless.  In those circumstances, the tribunal considered the appropriate uplift is 40%.  This results in a total compensatory award, including uplift, of £6,326.43.  The total award for unfair dismissal is therefore £6,766.93.

 

5.         The claims against the first-named respondent and the third-named respondent are dismissed.

 

Recoupment

 

6.         The Recoupment Regulations apply.

 

Interest

 

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

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:          26 November 2010, Belfast

 

 

Date decision recorded in register and issued to parties: