Pertache v John Campbell t/a RJC Accessor... [2011] NIIT 00940

THE INDUSTRIAL TRIBUNALS

CASE REF: 940/11

CLAIMANT: Catalina Pertache

RESPONDENT: John Campbell t/a RJC Accessories

DECISION

The decision of the Tribunal is:

(i) The claimant suffered unlawful deductions from wages and we order the respondent to pay her the sum of £1,818.40 in respect of the unlawful deductions.

(ii) The claimant was unfairly dismissed by the respondent and we order the respondent to pay to her the sum of £5,061.80 calculated in accordance with paragraph 4.4 of this decision.

Constitution of Tribunal

Chairman: Miss E McCaffrey

Members: Mr T Wells

Mr I Carroll

Appearances

The claimant was represented by Mr Martin O’Brien, Barrister-at-Law, instructed by Rosemary Gawn Solicitors.

The respondent did not enter a response and was not represented at the hearing.

1. The Issues

The issues for the Tribunal were:-

1.1 Whether the claimant had been unfairly dismissed by the respondent.

1.2. Whether the respondent had failed to follow the statutory procedures in relation to dismissal and grievance.

1.3. If the respondent had failed to follow the appropriate procedures, whether the claimant was in addition entitled to a statutory uplift for failure to follow the appropriate procedures.

1.4. Whether the claimant has suffered unlawful deductions of wages in that the respondent had failed to pay her wages up to the date of the termination of her employment.

2. The Facts

2.1 The claimant was employed by RJC Accessories from 25 June 2008 as a Branch Manager at a store in Cookstown. From the payslips which the claimant received from her employer it appeared that RJC Accessories was not a limited company but was run by a man named John Campbell and we therefore order the name of the respondent to be amended to read John Campbell trading as RJC Accessories.

2.2 The claimant was born on 8 March 1989 and worked for the respondent an average of 42 hours per week. She earned £6.50 per hour gross which meant that her net pay was normally in the region of £900.00 per month.

2.3 The claimant noticed in December 2010 that her wages had not been paid. She raised this issue with the respondent who assured her that she would receive payment as soon as possible. She then received a cheque dated 7 January 2011 in the sum of £1,218.62. This cheque was drawn on an account held by Victoria Taylor trading as WAGYU. The claimant identified Ms Taylor as the respondent’s girlfriend. The claimant lodged this cheque in her bank account but it was subsequently returned to her marked “refer to drawer”. The claimant telephoned the respondent on 14 January 2011 pointing out that she had not received her payment for December 2010. She said that she would resign if her wages were not paid immediately. She said this because it was clear to her that her employer was not going to pay her for the hours that she had legitimately worked. The claimant produced to us her timesheets for December 2010 and January 2011 which showed the hours she had worked. The claimant told the respondent that she felt she was forced to give notice of termination of employment of one week initially. The respondent said that was “ok” and that the claimant would leave at the end of that week. However the respondent then telephoned the claimant back shortly afterwards and said that she should hand in her keys and leave his employment forthwith. The claimant felt that she was dismissed summarily without notice or without pay in lieu of notice on 14 January 2011.

2.4 The claimant’s Solicitors wrote to the respondent on 28 January 2011 and again on 7 February 2011, raising a grievance in relation to the non-payment of her wages. The claimant subsequently received a cheque for £599.78 representing her wages from the beginning of January 2011 until 14 January 2011, but this cheque too was returned by her bank confirming that the cheque had been stopped. A letter from the Northern Bank dated 7 March 2011 was produced to us in this regard.

2.5 The claimant was under severe stress and financial hardship and suffered a miscarriage which she believed was a result of the stress she had suffered. There were also bank charges incurred because of the dishonoured cheques.

2.6 No response was received by the claimant to the Solicitor’s letters of 28 January and 7 February 2011. The claimant advised that the respondent’s business address of Unit 6 Derryloran Industrial Estate, Cookstown, County Tyrone BT80 9LU was closed up and she was uncertain as to whether or not the respondent was still trading or whether he had become insolvent. In the absence of any clear evidence in this regard we are proceeding with the case.

2.7 The claimant was able to advise that the respondent’s home address is 23 Church Heights, Cookstown, and we direct that a copy of this Decision would be sent to the respondent at both his home address and his business address.

2.8 Following the termination of the claimant’s employment with the respondent she received approximately £200.00 Jobseekers Allowance over a period of two months.

2.9 On 6 April 2011 the claimant obtained employment with LBM Direct Marketing Limited at a salary of £13,000.00 per annum. Her net weekly wage from this employment was £202.26, leaving her with a shortfall from her previous employment with the respondent of £22.74 per week.

2.10 The claimant subsequently found another job starting on 4 July 2011 at a salary of £15,529.00 per annum giving her a net take home pay of £298.63 per week. From the date of commencement of that employment in July 2011 she therefore has no ongoing loss.

3. Relevant Law

3.1 The relevant law in relation to this matter is to be found at Article 130 and the following of the Employment Rights (Northern Ireland) Order 1996. In particular we would refer to Article 130A which provides as follows:

“(i) 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 I of Schedule 1 to the Employment Rights (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the 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.

(ii) Subject to paragraph (i), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee had he followed the procedure.

(iii) For the purposes of this Article, any question as to the application of the procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

Article 17 of the Employment (Northern Ireland) Order 2003 includes the following provision as follows:-

“17(3) If, in the case the proceedings to which this Article applies, it appears to the Industrial Tribunal that –

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with the requirement of the procedure,

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

17(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the Tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances”.

3.2 In relation to the issue of unlawful deductions from wages, the relevant law is to found in Article 45 of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:

“45(1) An employer shall not make a deduction from wages of a worker employed by him unless –

(a) the deduction is required or authorised to be made by virtue of a statutory provision or relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction”.

4. Decision

4.1 It is our decision in relation to this matter that the claimant has suffered unlawful deductions from wages in that she was not paid her wages for the month of December 2010 or up to 14 January 2011 and we therefore order the respondent to pay to her the following sum in relation to unpaid wages:

£1,218.62

£599.78

_______

Total: £1,818.40

4.2 We are also satisfied that the claimant was unfairly dismissed by the respondent and that she was dismissed in breach of the statutory disciplinary procedure set out in Schedule 1 to the Employment (Northern Ireland) Order 2003. While the claim form did not explicitly claim unfair dismissal, it is clear from the statement put forward on behalf of the claimant in the claim form that unfair dismissal was raised and so we consider it appropriate to deal with that claim.

4.3 There was an issue as to whether the claimant was dismissed or whether she had in fact resigned her post during her initial telephone conversation with the respondent on 14 January 2011. It is clear however that the claimant handed in her resignation in response to the respondent’s failure to pay her her wages for December 2010. This is a fundamental breach of contract on the part of the employer and we therefore consider that the claimant’s resignation was in response to that and she would therefore have been justified in claiming constructive dismissal. However she handed in her notice and was to work for a further week so her employment had not actually terminated on 14 January 2011 until the respondent phoned her back and told her to hand in her keys and leave her employment immediately. In light of this we consider that the respondent dismissed the claimant summarily without pay or pay in lieu of notice on
14January 2011.

4.4 In our opinion therefore the claimant was unfairly dismissed and is entitled to be paid compensation as follows:

1. Basic award

The claimant was aged 22 at the date of dismissal and had two continuous years service below the age of 22. On the basis that her net pay was £900.00 per month, her weekly net pay was £207.69 and her gross pay was £273.00.

In normal circumstances, her basic award would be £273 x 2 x 0.5 = £273.00

However, where (as in this case) there is an automatically unfair dismissal because of a breach of the statutory disciplinary procedure, the basic award will be a minimum of 4 weeks’ gross pay unless that increase would “result in injustice to the employer” as per Article 154(1)(a) of the Employment Rights (Northern Ireland) Order 1986. We do not believe that that the increase would result in injustice to the respondent.

We therefore order the respondent to pay the claimant a basic award as follows:-

£273 x 4 weeks = £1,092.00

2. Compensatory award

Loss of earnings from 14 January 2011 to 6 April 2011 (12 weeks)

£207.69 (net) x 12 = £2,492.28 £2,492.28

Loss of earnings from 6 April 2011 to 4 July 2011 (12 weeks)

£207.69 - £202.26 = £5.43 per week x 12 = £65.16 £ 65.16

Loss of statutory rights £ 400.00

TOTAL £4,049.44

Any award for redundancy payment has to be set against the basic award and in this case the amounts will be the same. This is a case where the employer completely failed to go through the usual disciplinary procedures in relation to termination of employment or, in the case of a redundancy, to consult in relation the redundancy. It is our view that this would be a case where it is appropriate under Article 17 of the Employment (Northern Ireland) Order 2002 to give an uplift of 25% of the award, which we measure at £1,012.36.

The total amount of the award is therefore £5,061.80.

This is a relevant award for the purposes of the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 as amended by the Social Security (Miscellaneous Amendment NO. 6) Regulations (Northern Ireland) 2010.

The amount of the monetary award is £5,061.80. The amount of the prescribed element is £2,492.28 and the prescribed element relates to the dates between 14 January 2011 and 10 August 2011 (the date of hearing). The monetary award exceeds the prescribed element by £2,569.52.

5. This is a relevant decision for the purposes of the Industrial Tribunals (Interest on Awards) Regulations 1990.

Chairman:

Date and place of hearing: 10 August 2011, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Pertache v John Campbell t/a RJC Accessor... [2011] NIIT 00940_11IT (21 October 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/00940_11IT.html Cite as: [2011] NIIT 940_11IT, [2011] NIIT 00940_11IT

Industrial Tribunals Northern Ireland Decisions