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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gillespie v McCrory & Anor [2004] NIIT 2263_04 (10 December 2004) URL: http://www.bailii.org/nie/cases/NIIT/2004/2263_04.html Cite as: [2004] NIIT 2263_04, [2004] NIIT 2263_4

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2263/04

APPLICANT: Christina Gillespie

RESPONDENTS: 1. Gary McCrory

2. Yew Tree Restaurant

DECISION

The unanimous decision of the tribunal is that the applicant's complaint of unfair dismissal is well-founded and it is ordered that the respondent shall pay to the applicant the sum of £968.50.

Appearances:

The applicant was represented by Ms M Quinn, Solicitor, of James Ballentine & Son, Solicitors.

The respondent, Gary McCrory, appeared in person.

REASONS

1. We gave our decision at the end of the hearing and we now confirm that decision in writing. These reasons are given in summary form.
2. The applicant was employed by the respondent, Mr Gary McCrory, as a part-time waitress and dishwasher from March 2003 until 28 July 2004, when he dismissed her. (The dismissal took immediate effect.)
3. In these proceedings, the applicant complains of unfair dismissal. Mr McCrory admits that the applicant was dismissed.
4. Article 130 of the Employment Rights (Northern Ireland) Order 1996 sets out the criteria for determining, for the purposes of the unfair dismissal legislation, whether the dismissal of a particular employee is fair or unfair. Article 130 makes it clear that it is for the employer to show the reason for the dismissal, and that any reason shown must be a potentially fair reason (A reason is a potentially fair reason if it falls within paragraph (2) of that Article, or if it is some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the relevant employee held). Paragraph (4) of Article 130 then goes on to provide that, where the employer has fulfilled the requirements specified above (by showing a potentially fair reason for dismissal), the next issue is whether the dismssal is actually fair of unfair.
5. We are satisfied, on the evidence of Mr McCrory, that the applicant was dismissed because she did not notify Mr McCrory of the fact that she was going to be absent from work, through sickness, on Tuesday 27 July 2004.
6. We are therefore satisfied that the reason for the applicant's dismissal was a reason relating to the conduct of the applicant. Accordingly, it was a potentially fair reason for dismissal. The question therefore for us was whether or not this dismissal was actually fair or unfair (in the sense in which the expression "fair or unfair" is used in Article 130(4) of the 1996 Order).
7. We are satisfied that the dismissal was actually unfair, for two reasons:-

(1) We are satisfied that, in failing to notify Mr McCrory of her impending absence on Tuesday 27 July 2004, the applicant was not committing an act of misconduct.

(2) In any event, by dismissing the applicant for that act, the employer was, in the circumstances of this case, stepping outside the range of reasonable responses open to a reasonable employer, by imposing a grossly disproportionate sanction, in relation to an 'offence' which had never been the subject of any formal warning. (On a previous occasion, when the applicant was sick and the employer was not informed in a timely manner, he merely told the applicant's mother that, in future, it would be appreciated if he could be informed in a timely manner.)

8. We do not consider that the applicant has carried out any act of misconduct, because of the following matters and reasons. First, there was no term in the applicant's contract which required her, in all circumstances, to notify the employer, in advance of any day's absence, of the fact of that impending absence. Secondly, in any event, the employer was already aware that the applicant had been too sick to attend work on Sunday 25 July 2004, and he had not been informed that, in the meantime, she had recovered from her illness.
9. We award the sum of £968.50, which is made up as follows:

(1) The sum of £58.50 by way of basic award.

(2) The sum of £910 by way of compensatory award.

10. The sum of £58.50 is awarded by way of basic award because the applicant's gross salary, at the relevant time, was £117 per week, and she was under the age of 18.
11. One of the elements in the compensatory award is an amount of £100 which we award for loss of statutory rights.
12. The remainder of the compensatory award consists of the sum of £810, which is awarded in respect of loss of salary. After nine weeks of unemployment, the applicant got a job which pays her more than she was paid while she was in the employment of Mr McCrory. Accordingly, her maximum period of financial loss is a nine-week period. Her net salary was £112 per week. That makes for an overall loss of £1,008. However, she was in receipt of sickness related benefit during that period, at the rate of £44 per week. We offset 50% of that amount, making for a rate of £22 per week. Nine weeks @ £22 per week is £198. Therefore, the financial loss element of the compensatory award has been arrived at by subtracting the sum of £198 from the sum of £1,008.
13. The applicant has not claimed any social security benefits which are relevant, for the purposes of the recoupment regulations, during any relevant period. Accordingly, the recoupment regulations do not apply in the circumstances of this case.
14. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 10 December 2004, Belfast

Date decision recorded in register and issued to parties: