THE INDUSTRIAL TRIBUNALS

CASE REF:	872/08

CLAIMANT:			Rachael Isobel Molloy

RESPONDENT:		Warehouse Direct D/S Limited

DECISION

The unanimous decision of the tribunal is as follows:-

1.	That the correct respondent to the claim is Warehouse Direct D/S Limited and the title of the proceedings is amended accordingly.

2.	That the claimant was unfairly dismissed and the respondent is hereby ordered to pay the claimant compensation in the sum of £21,870.03 ; and

3.	That the claimant is entitled to 2 days holiday pay and the respondent is hereby ordered to pay to the claimant the sum of £101.92

Constitution of Tribunal:

Chairman:		Ms Turkington

Members:		Mr Martin
Mr Huston

Appearances:

The claimant appeared and represented herself at the hearing assisted by her sons.
 
The respondent did not submit a response to the claim and did not appear at the hearing.

The Claims 

1.	The claims were a claim of unfair dismissal and a claim for unpaid holiday pay. 

The Issues

2.	The issues to be determined by the tribunal in relation to the claim of unfair             dismissal were:-
 
(a)	whether the respondent had complied with the statutory dismissal procedure pursuant to The Employment (Northern Ireland) Order 2003 and The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and therefore whether the dismissal of the claimant was automatically unfair.

(b)	the compensation to be awarded to the claimant.

3.        The issue to be determined by the tribunal in relation to the claim for holiday pay was whether the claimant was entitled to 2 days holiday pay.

Disposal of the claim in the absence of the respondent

4.	The respondent had not presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing.  Accordingly, the tribunal decided that it should proceed to hear the claim in the absence of the respondent.

Sources of Evidence

5.	The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.

Facts of the Case

Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-

6.	The claimant who was born on 13 May 1945 was employed by the respondent as a shop assistant/till operator in the respondent’s “Pound Shop” in Coleraine.  The claimant was employed in this post from November 2002 to 3 May 2008.

7.	At the end of April 2008, one of the respondent’s managers based in Magherafelt namely Nancy told the claimant that she had to finish work that Saturday 3 May 2008.  The claimant was told that the shop was closing that Saturday.  However, the shop remained open for a further 2 months.

8.	The claimant did not receive any letter indicating that the respondent was contemplating the dismissal of the claimant.  The respondent did not conduct any meeting with the claimant to discuss her possible dismissal.  The respondent did not offer the claimant an appeal in relation to her dismissal.

9.	On 3 May 2008, the claimant received her normal week’s wages for the week she had worked, but she did not receive any notice monies nor any redundancy payment.

10.	The respondent has other shops in Ballymoney, Cookstown and Magherafelt.  The claimant was not offered alternative employment in any of these shops.  The claimant would have accepted a post in the Ballymoney shop if that had been offered to her.

11.	At the termination of her employment with the respondent, the claimant earned £206.23 per week gross and £182.93 per week net.  

12.	After her dismissal, the claimant looked for work, but was unable to find alternative employment until she took up a post with McDonalds as a cleaner commencing on 21 October 2008.  The claimant works 3 mornings per week earning £65 per week net.  The claimant has not been able to obtain any additional employment to supplement her earnings.

13.	The respondent’s leave year ran from 1 April to 31 March.  At the date of termination of her employment (3rd May 2008), the claimant had accrued 2 days annual leave which she had not taken.    

14.	On 9 May 2008, the claimant wrote a letter of grievance to the respondent in which she complained that the respondent had failed to pay holiday pay due to her.  The respondent did not respond to that grievance.

Statement of Law

15.	The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case.  In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Step 1 – written statement of grounds for potential dismissal and invitation to         meeting
Step 2 – meeting to discuss the proposal to dismiss the employee
Step 3 - appeal meeting

	By Article 130A of the Employment Rights (Northern Ireland) Order 1996, where the non-completion of the statutory dismissal procedure is attributable to the employer, the dismissal is automatically unfair.

16.     Pursuant to Article 17 of The Employment (Northern Ireland) 2003, where it appears to the tribunal that the non-completion of either the statutory dismissal procedure or the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50%.

17.	By regulation 14 of the Working Time Regulations 1998, where a worker’s employment is terminated during the course of his leave year and the proportion of leave taken by the worker is less than the leave accrued at the termination date, then the employer shall make him a payment in lieu of the leave which was accrued but not taken.

18.	The statutory grievance procedure set out in the Employment (Northern Ireland) Order 2003 is applicable in this case.  The standard statutory grievance procedure requires the employee to put her complaint in writing to the respondent and for the respondent to invite the employee to a meeting to discuss the grievance and then an appeal meeting.  The consequences of non-completion of the statutory grievance procedure are as set out at para 16 above.

          Conclusions

19.      In light of the facts found, the tribunal had no hesitation in concluding that none of the requirements of the statutory dismissal procedure were complied with in this case.   The respondent did not write a step 1 letter to the claimant nor did the respondent conduct a step 2 meeting or a step 3 appeal meeting.  The tribunal was satisfied on the basis of the facts found that the non-completion of the statutory dismissal procedure was wholly attributable to the respondent.  The tribunal therefore concluded that the dismissal of the claimant was automatically unfair.  In the circumstances, it was not therefore necessary for the tribunal to consider whether the dismissal was fair in all the circumstances. 
 
20.      Accordingly, the unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the claimant is entitled to compensation for such unfair dismissal.

21.     Having considered the claimant’s evidence regarding the difficulties she had experienced in finding alternative employment and taking account of the claimant’s age and present economic conditions, the tribunal concluded that it was likely to be 2 years following the date of termination before the claimant found other employment at the same rate of pay.  Accordingly, the tribunal determined that it would be just and equitable in all the circumstances for the claimant to be awarded loss of earnings for a period of 2 years from the date of dismissal. In light of the facts found by it, the tribunal took the view that it was just and equitable in all the circumstances for the award to the claimant in respect of unfair dismissal to be increased by 40%.

22.      In relation to the claim for holiday pay, the tribunal was satisfied that the claimant had accrued but had not taken 2 days annual leave up to the date of termination of her employment.  The tribunal concluded that the claimant was entitled to pay in lieu of these 2 days holiday which amounts to £72.80.

23.      The tribunal considered that, having written a letter of grievance to the respondent on 9 May 2008, the claimant complied with step 1 of the statutory grievance procedure.  However, the respondent did not respond to that letter and therefore the statutory grievance procedure was not completed in this case.  The tribunal was satisfied that the non-completion of the statutory grievance procedure was wholly attributable to the respondent.  Accordingly, the tribunal determined that it was appropriate in the circumstances for the award to the claimant in respect of holiday pay to be increased by 40%.

Compensation

24.	Having determined that the claimant was unfairly dismissed, the tribunal went on to consider the appropriate remedy.  The claimant did not seek reinstatement or re-engagement.  The tribunal considers that the appropriate compensation in this case in accordance with Article 152 to 158 of the Employment Rights (Northern Ireland) Order and Article 17 of the Employment (Northern Ireland) Order is as follows:-

(A)	Basic award

           £ 206.23 X 5 x 1.5 =                                           £1546.73

 (B)     Compensatory award

           Immediate loss to date of hearing:-

           24 weeks x £182.93 =                                        £4390.32

           5 weeks x (£182.93 - £65) =                                 £589.65

           Future loss of earnings:-

           75 weeks x (£189.93 - £65) =                              £8844.75

                           Loss of statutory rights

                                                                                                                       £250.00
                    
                     Total monetary award for unfair dismissal (A) + (B) = £ 15621.45

                     Increase in monetary award of 40%                       ADD   £6248.58

                     TOTAL monetary award after increase =                        £21870.03

                     Prescribed element =                                                              NIL

                   The tribunal considers that a reduction for contributory fault is not appropriate in this case.
                   Accordingly, the tribunal hereby orders the respondent to pay to the claimant compensation for unfair dismissal in the sum of £21870.03

25.	In addition, the claimant is entitled to payment of the sum of £72.80 in respect of holiday pay.

Award in respect of holiday pay =                                        £72.80

Increase in award of 40%                                            ADD   £29.12

     TOTAL award after increase                                                £101.92

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

Chairman:

Date and place of hearing:	27 November 2008, Belfast.

Date decision recorded in register and issued to parties: