Smyth v Michael McCorry - Chairperson [2010] NIIT 00182

THE INDUSTRIAL TRIBUNALS

CASE REF: 182/10

CLAIMANT: Nicola Smyth

RESPONDENTS: Michael McCorry - Chairperson

Joseph Dowds - Secretary

Patrick Carberry - Treasurer

James Quinn - Committee member

Damien Harrison - Committee member

Eilish Duffy - Committee member

Gerard Larmour - Committee member

SUED ON BEHALF OF: Lower Falls Social Club

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed; the respondents shall pay the claimant £2,133.12.

Constitution of Tribunal:

Chairman: Ms Bell

Members: Mrs Elliot

Mr Edmont

Appearances:

The claimant appeared and represented herself.

The respondents did not appear and were not represented.

1. The claimant in her claim complained that she had been unfairly dismissed by Lower Falls Social and Recreational Club and had not received notice or pay in lieu of notice on termination of her employment.

2. No response to the claim has been accepted from the respondents in accordance with the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

3. Based on the claimant’s confirmation that her employer was Lower Falls Social Club and the committee members are Michael McCorry, Chairperson, Joseph Dowds, Secretary, Patrick Carberry, Treasurer, James Quinn, Committee member, Damien Harrison, Committee member, Eilish Duffy, Committee member, Gerard Larmour, Committee member, the title of the respondent is accordingly amended from ‘Lower Falls Social and Recreational Club’ to

‘Michael McCorry - Chairperson

Joseph Dowds - Secretary

Patrick Carberry - Treasurer

James Quinn - Committee member

Damien Harrison - Committee member

Eilish Duffy - Committee member

Gerard Larmour - Committee member

SUED ON BEHALF OF: Lower Falls Social Club.’

Issues for Tribunal

4. The issues before the tribunal were:-

· Was the claimant unfairly dismissed?

· Is the claimant entitled to pay in lieu of notice?

Evidence

5. The tribunal considered the claim, documentation and correspondence from the claimant and heard oral evidence from the claimant.

Findings of Fact

6. The claimant, born on 15 September 1979, has a full time job but to supplement her income began employment with Lower Falls Social Club hereafter referred to as the respondent club, on 29 September 2008 as a part time bar person. The claimant was paid £85.95 gross per week by the respondent club being £68.95 net. No written statement of particulars of employment was given by the respondent club to the claimant.

7. After last working for the respondent club on 17/18 October 2009 the claimant received a letter from it dated 19 October 2009 stating that the respondent club’s manager was currently carrying out an investigation into an incident that happened while she was last working and requesting that she attend a meeting on 22 October 2009 to give her version of what happened and advised her that she was suspended from working until the outcome of the incident was finalised. No details of the alleged incident were provided to the claimant.

8. The claimant attended the meeting on 22 October 2009 with Mr Michael McCorry the claimant’s boss and Mr Michael Boyle who was employed by the respondent club as assistant manager and who had been on duty on 17/18 October 2009. The meeting was informal, no mention was made to the claimant that the meeting was a disciplinary meeting, that she had the right to be accompanied or that she might be dismissed. Whilst serving a last drinks order for a committee member of the respondent club on 17/18 October 2009 the claimant was asked to serve an order totalling £8 for which the customer had tendered £10 in payment. Mr McCorry asked the claimant what had happened with regard to the last drinks order that she had taken on the evening of 17/18 October 2009, the claimant confirmed that she had put the money in the till, Mr McCorry put it to the claimant that she had not rung the order in, the claimant replied that she had, but Mr McCorry put it to her that she had not as was shown by the till roll, the claimant responded that if that was so then she had made a mistake and apologised. A committee meeting was to take place the same night, 22 October, and Mr McCorry arranged to return to the claimant about the matter after that meeting. It is the claimant’s understanding that at the end of the night on 17/18 October 2009 that the till should have been £8 over as a result of her last order not being rung in but that it apparently was not, she was not however informed of the actual amount of the discrepancy.

9. On 30 October 2009 the claimant telephoned Mr McCorry to enquire about the outcome following the meeting on 22 October 2009 and was told that the respondent club’s decision would be sent to her either that or the next day.

10. On 4 November 2009 the claimant received a letter from the respondent club dated 30 October 2009 advising her that after the incident that occurred on 17 October 2009 the decision had been taken to terminate her employment and that she had a right to appeal the decision. No notice to terminate her employment was given to the claimant.

11. On 5 November 2009 the claimant wrote a letter to the respondent club appealing the decision to dismiss her as she felt that it was unfair and asked that the following information be taken into account; that she was not the only person on duty that night, to her knowledge no concern was expressed as to the conduct of either of the other staff members on duty; she was not given any formal warnings prior to dismissal; she was not given the opportunity to put forward her case; she was not advised of her right to be accompanied. The claimant also sought copies of minutes from the investigation or committee meetings regarding termination of her employment. The claimant sent a second letter to the respondent club on the same date raising a grievance in respect of contributions deducted from her wages.

12. An appeal meeting was arranged and conducted by Mr Jim Quinn and Mr Damien Harrison on 15 December 2009 which the claimant attended, accompanied by Mr Tony Gray. The events of 17/18 October 2009 and the claimant’s grievance were discussed at length and the claimant requested a copy of the respondent club’s disciplinary and grievance procedure along with other documents previously sought and Mr Harrison informed her that she would receive these and a written response following their meeting. No response or documentation was provided by the respondent club to the claimant.

13. After a number of attempts the claimant succeeded in obtaining a better paid new part time job on 6 March 2010.

14. The claimant sought by way of remedy compensation only.

The Law

Statutory Minimum Procedures and Unfair Dismissal

15. The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum, where applicable, by an employer contemplating a dismissal. The standard procedure consists of three steps as follows:-

Step 1: statement of grounds for action and invitation to meeting

1. - (1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

2. - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless –

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

3. - (1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision.

16. By virtue of Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined, however under Article 130A(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 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

(b) 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.

17. Where an Industrial Tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the Orders it may make by way of remedy are set out at Article 146 of the 1996 Order and include reinstatement, or re-engagement, and otherwise compensation. How compensation is to be calculated is set out at Articles 152 to 161.

18. Article 154(1A) of the 1996 Order provides that where an employee is regarded as unfairly dismissed by virtue of Article 130A(1) the Industrial Tribunal shall increase the basic award where the amount is less than four week’s pay to the amount of four week’s pay save as provided at 1(B).

19. There is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 [which includes Article 145 of the 1996 Order (Unfair Dismissal)] by an employee where it appears to the industrial tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement

of the procedure, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.

20. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.

21. Under Article 118B of the Employment Rights (Northern Ireland) 1996 an Employer is required to give minimum notice to terminate the contract of employment of a person of not less than one weeks’ notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

Application of Law to the Facts Found

23. The tribunal is satisfied that the standard procedure under the statutory dismissal and disciplinary procedures was applicable but based on the claimant’s undisputed evidence the procedure was not completed at the fault of the respondent club, in particular in that after the appeal meeting the claimant was not informed of the respondent club’s final decision. The tribunal also consider that the claimant was not properly informed of the allegations against her, the outcome of the respondent club’s investigation, or that her dismissal was being contemplated and was a possible outcome before action was taken.

24. The tribunal finds that the claimant’s dismissal was automatically unfair under Article 130A (1) of the 1996 Order the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure by the respondent club to comply with its requirements. The tribunal is also satisfied in the alternative that the claimant’s dismissal was unfair under Article 130 of the 1996 Order, no potentially fair reason under the Order such as to justify the dismissal having been shown. As the claimant’s basic award would amount to less than four weeks pay the tribunal increases the basic award to an amount equal to four weeks pay under Article 154 of the 1996 Order. The tribunal furthermore considers that it is just and equitable in all the circumstances of this case to increase the award for unfair dismissal by 20% under Article 17 of the 2003 Order in light of the failure on behalf of the respondent club to comply with the statutory dispute resolution procedures.

25. The tribunal accordingly orders the respondents to pay the claimant compensation as follows:-

COMPENSATION FOR UNFAIR DISMISSAL

Basic Award

The tribunal orders the respondents to pay a basic award for unfair dismissal of four week’s gross pay under Article 154(1A) of the 1996 Order being £343.80.

4 weeks x £85.95 = £343.80

Compensatory Award

Loss of Earnings

The tribunal consider it just and equitable to award the claimant compensation from her effective date of termination 30 October 2009 up to 6 March 2010 when she obtained further part time work, that is say:-

18 weeks @ £68.95 = £1,241.10

Loss of statutory rights £250.00

Uplift under Article 17

Total compensatory award before uplift = £1,491.10

20% uplift = £298.22

Total compensatory award = £1,789.32

26. Whilst the tribunal is satisfied that the claimant has not received her proper I week’s notice entitlement on termination of her employment under Article 118 of the 1996 Order, loss arising from this has already been compensated under the unfair dismissal compensatory award for loss of earnings and the claimant is not entitled to further payment in lieu thereof.

Conclusion

27. The tribunal finds that the claimant was automatically unfairly dismissed under Article 130A (1) of the 1996 Order and the respondents shall pay the claimant the following compensation:-

BASIC AWARD

£343.80

COMPENSATORY AWARD

£1,789.32

TOTAL £2133.12

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

Chairman:

Date and place of hearing: 18 May 2010, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smyth v Michael McCorry - Chairperson [2010] NIIT 00182_10IT (06 August 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/00182_10IT.html Cite as: [2010] NIIT 182_10IT, [2010] NIIT 00182_10IT

Industrial Tribunals Northern Ireland Decisions