Dornan v Cloona Oasis Centre [2011] NIIT 01873

THE INDUSTRIAL TRIBUNALS

CASE REF: 1873/10

CLAIMANT: Anne Mary Dornan

RESPONDENT: Cloona Oasis Centre

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed but is not entitled to compensation for the reason set out below. She is entitled to a redundancy payment, unpaid holiday pay, unpaid wages and notice pay. All the details are set out in the Schedule hereto.

Constitution of Tribunal:

Chairman: Mr S M P Cross

Members: Mrs B Heaney

Mr A Carlin

Appearances:

The claimant appeared in person and was represented by a friend Mr McStay.

The respondent did not appear and was not represented.

Findings of Fact

1. The claimant was born on 22 February 1958. She was employed by the respondent from September 2006, not 2007 as stated in her application to the tribunal, until the employment terminated on 28 May 2010. The claimant was employed as a catering manager responsible for the cafeteria. She was also the manager of the centre which comprised various other units dealing with social issues. Her gross wage was £288.40 per week and her net was averaging £236.18.

2. During the spring of 2010 the claimant began to experience delays in being paid salary. The last payment of salary that she received was on 28 May 2010. During June the claimant said that she was going to take two weeks holiday and asked for leave. The management committee called her in and informed her that because of the financial situation in which the respondent found itself it would be unlikely that she could be paid her holiday entitlement. The claimant suggested that she would borrow money to pay for her holiday, if the respondent would repay it on her return. The committee of the respondent stated that they could not guarantee such repayment. The claimant went on holiday in any event but on her return she found that the centre was closed and that she was unable to obtain access. She sent a text to one of the directors, Mr Gerry McErlane and also to the chairperson of the board Mrs O'Kane. She got no reply to either of these texts and assumed that the centre was closed and that her job was gone.

3. Before she had gone on holiday the claimant had heard numerous rumours that the Oasis Centre was going to close due to financial difficulties. She was worried that if she was away and the centre did close she might not get her P45, to enable her to obtain benefits or another job. She therefore asked the respondent’s administrator Ms McKeown to issue the P45 for herself and her husband, who also worked in the centre and another employee James Molloy. She held the P45s for her husband and herself until her return from holiday. She gave James Molloy his P45, which was dated 25 June, before she went on holiday.

4. There was some misunderstanding about the P45 forms. A letter was written by Mr McErlane on Friday, 28 May stating that the claimant's employment with the respondent had ceased from 28 May, due to withdrawal of funding and inability to pay salaries. On the same day however Mr McErlane also wrote a letter to the claimant which stated, that although the respondent was unable to pay the salaries, the claimant remained an employee of the centre “at the moment”. Clearly these letters are contradictory. The evidence of the claimant was that when she got the first letter she realised that it was incorrect as she has never been dismissed from her post and she therefore asked for the letter to be altered and the second letter was given to her instead.

5. The evidence of the claimant is that she was never formally given any notice of dismissal. The centre merely closed and left her seeking payment of unpaid wages and redundancy payment through the tribunals.

6. During the hearing, the tribunal was informed that the respondent company had been “dissolved” by the Companies Registry on 13 May 2011. No reason was given for this. No liquidator was appointed. The only other information available to the tribunal in the absence of any appearance from the respondent, was a reference at the Case Management Discussion held on 27 January 2011, when a solicitor, then on record for the respondent, stated that “the respondent was a company with no assets and that it was not anticipated that there would be formal insolvency proceedings for the company as there were no funds to conduct same”. He also referred to police investigations then ongoing. No further reference to such investigation was made to this tribunal.

The Law

7. The claimant claims that she was unfairly dismissed. Under the provisions of Article 126 of The Employment Rights (Northern Ireland) Order 1996 (the 1996 Order), “an employee has a right not to be unfairly dismissed by his employer.” Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question. In this case the reason for the dismissal would appear to be redundancy. Under Article 174 of the 1996 Order, redundancy is defined. One situation that is so defined as a redundancy situation is one where work of a particular kind ceases or diminishes or is expected to cease or diminish.

8. Certain dismissals are declared by Statute to be automatically unfair. One such is where the employer fails to comply with the terms of Article 130A of the 1996 Order. This states that a dismissal is to be regarded as unfair, if one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), has not been complied with and the non compliance is wholly or mainly attributable to the failure of the employer/respondent. The procedure referred to in Schedule 1 of the 2003 Order provides for the employer to give written information to the employee as to his reason for wishing to terminate the employment of the employee and to invite the employee to a meeting to discuss the matter. The meeting must take place before the action of dismissal is implemented and if the employee is still intent on dismissing the employee he must give the employee a right of appeal. If the employee fails to carry out this procedure then the subsequent dismissal is automatically unfair. This is known as a failure to follow the statutory dismissal procedure.

9. Article 130A (2) of the 1996 Order states, that if the employer, who fails to follow its own contractual dismissal procedure, (leaving aside for the moment the statutory dismissal procedure), can show that he would have dismissed the employee in any event then the dismissal shall not be considered unfair. However there is no such statutory relief under Article 130A (2), for an employer who fails to even meet the basic requirements of the statutory dismissal procedure. In such a case the dismissal is automatically unfair.

10. There is however one other matter that the tribunal must consider before awarding compensation to a claimant who has been automatically unfairly dismissed under Article 130A. If the tribunal comes to the conclusion, that despite the unfair treatment on the part of the employer, the claimant would have been dismissed, even if a fair process had been adopted, then under the guidance set down in the case of Polkey v AE Dayton Services Limited 1987 [IRLR] 503, (hereinafter referred to as “the Polkey case”), the tribunal must refuse to award any compensation, if the tribunal is satisfied that there was a certainty of such dismissal taking place; or reduce the compensation awarded, to reflect the tribunal’s view of the percentage chance of such dismissal occurring.

11. If the tribunal is satisfied that the claimant has been unfairly dismissed, then subject to the Polkey case, it can award the claimant compensation, payable by the respondent. The tribunal, if the statutory procedures are not complied with, must increase the award of compensation that it makes by 10 per cent, (Article 17 of the 2003 Order). The tribunal also has power, under the same Article, to increase the award by a further percentage, up to 50 per cent, if the tribunal considers it just and equitable so to do.

12. In most cases where an employee brings tribunal proceedings against his employer he must first comply with the grievance procedures set out in Schedule 1 Part 2 of the 2003 Order. This provides that the employee must notify the employer in writing of his grievance. However under the provisions of Regulation 6(4) of The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, (“the 2004 Regulations”), these requirements do not have to be complied with in a situation such as the one in this case. Regulation 6(4) provides that where the employee has ceased to be employed by the respondent and neither of the statutory procedures has been commenced and since the claimant ceased to be employed by the respondent it is no longer reasonably practicable for him to comply with the procedures, then the procedures do not apply.

Decision of the tribunal

13. The tribunal holds that the claimant is not required to comply with the grievance procedure referred to in paragraph 12 above for the reasons set out in that paragraph.

14. The tribunal hold that the claimant was dismissed from her employment on grounds of her redundancy. However the failure of the respondent to comply with the statutory procedures means that the claimant was automatically unfairly dismissed by the respondent which failed to comply with the statutory dismissal procedures. The confusion concerning the P45 is, in the opinion of the tribunal, nothing to do with the termination of the claimant's employment. The claimant had gone to the office to ask the administrator to prepare P45s for the three remaining employees, so that should the worst happen and the business close, she would have them available for future use. This is confirmed by the second letter from the director Mr McErlane, when he stated that the claimant was still an employee of the respondent. Clearly things were very difficult for the respondent, as it was not even able to pay outstanding wages and holiday pay to the claimant. When the claimant returned she could not gain access to her place of work and her attempts to contact the directors were unsuccessful. In these circumstances it was reasonable for the claimant to assume that she had been dismissed on grounds of her redundancy. There was no work for her to do at her place of employment and she was left with no option but to commence these proceedings.

15. The tribunal therefore award the claimant a redundancy payment as calculated in the schedule hereto. She is also awarded two weeks wages from 28 May 2010 to 14 June 2010. Also 2 weeks holiday pay. The claimant received no notice pay and is therefore awarded notice pay as set out in the schedule.

16. As this is an automatically unfair dismissal the tribunal have to consider whether to award compensation, bearing in mind the Polkey decision. The tribunal hold that it was inevitable that the centre would close almost immediately and that this was well known to the claimant who had taken the precaution to organise the P45s for her and the other staff. In these circumstances the tribunal reduce any compensation for unfair dismissal to nil as it was certain that the respondent would have made the claimant redundant immediately.

Schedule

17. Redundancy payment

Claimant aged 52 years

3 completed years = 4.5 weeks pay @ £288.40 £1,297.80

2 weeks unpaid wages @ £236.18 £472.36

2 weeks holiday pay @ £236.18 £472.36

3 weeks notice pay @ £236.18 £708.54

________

Total compensation £2,951.06

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

Chairman:

Date and place of hearing: 1 August 2011, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Dornan v Cloona Oasis Centre [2011] NIIT 01873_10IT (02 September 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/1873_10IT.html Cite as: [2011] NIIT 1873_10IT, [2011] NIIT 01873_10IT

Industrial Tribunals Northern Ireland Decisions