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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCrory v O'Neill (t/a Melmount Chippy) [2007] NIIT 1313_07IT (19 December 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/1313_07IT.html Cite as: [2007] NIIT 1313_07IT, [2007] NIIT 1313_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1313/07

CLAIMANT: Jennifer McCrory

RESPONDENT: Aidan O'Neill T/A Melmount Chippy

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the respondent do pay to the claimant the sum of £1,100 by way of compensation.

Constitution of Tribunal:

Chairman: Mr M Davey

Members: Mr Irwin

Mr Nicholl

Appearances:

The claimant was represented by Mr J Kennedy, Barrister-at-Law, instructed by John Fahy & Co Solicitors.

The respondent appeared in person.

REASONS

1. The claimant's case was that she had been unfairly dismissed. The respondent's case was that she had not been dismissed at all. The issue for the tribunal was whether she had been dismissed and, if so, what remedy would be appropriate and, if compensation was in order, the amount of such compensation.
2. There was no dispute about some of the facts. The claimant had been working at the respondent's chip shop from December 2005 until the middle of May 2007. Her evidence was to the effect that she had been doing three shifts averaging between six and eight hours. At holiday times she might have done more and the very odd time she might have done less. She estimated her pay at £100 per week on average which was consistent with what had been stated in her originating claim form. This figure was not disputed by the respondent and the tribunal accepted it.
3. On 14 May 2007 the claimant had been in Derry attending a beauty therapy course. She was supposed to be working at the respondent's premises starting at 6.00pm. She missed the bus. After getting another bus and arriving in Strabane she got a taxi home and was able to text the chip shop to state that she had missed the bus and would be late. Her employers responded that cover had been arranged for the shift and that she need not bother. She texted the shop again to apologise and enquired as to when she was required again. Later on that evening she telephoned the respondent in person.
4. There was a good deal of conflicting evidence with regard to whether the respondent's daughter, who managed the shop, had telephoned the claimant and whether the claimant had rejected her calls. It was not clear from the verbal evidence as compared with the written statement which had been attached to the formal response whether the claimant had rejected the calls or whether her phone was not connected. The claimant's evidence was that it was not working due to battery failure. At all events the tribunal did not consider that this particular evidence was of the essence in relation to the question as to whether or not the claimant had actually been dismissed. The tribunal felt the same about conflicting evidence as to the actual time of the telephone call made by the claimant to the respondent. In the tribunal's view the important question was what was said during that telephone call.
5. Evidence as to the contents of the telephone call was given by both the claimant and the respondent and a friend of the claimant. The claimant's friend indicated in her evidence that she was able, while in the same car as the claimant, to hear both sides of the conversation. This did not seem wholly likely and the tribunal treated her evidence with some caution. There was agreement between the claimant and the respondent that during the course of the conversation she asked, following on from her texted message, what further work she was required for that week. It was further agreed that the respondent had said that he had no further work for her. It was also agreed that the claimant asked whether she was being sacked. In the tribunal's view the crucial issue to be determined was what response was made to that question.
6. According to the claimant, and to her friend Ms McCay, the respondent replied that she was. The respondent's evidence, however, was that he had said that he had not sacked her, that he did not discuss business at home and that she should come and see him the following day. According to the respondent she did not do so and he never heard from her again.
7. The tribunal prefers the evidence of the claimant in this regard. There is no doubt that the question arose. Having arisen it required, in the tribunal's view, a clear answer. The respondent said that he did not under any circumstances discuss business at home: yet he had already, on the basis of his own evidence, been prepared to advise the claimant that he had no further work for her that week. On his own evidence if he said such a thing it was untrue. The claimant was, in fact, supposed to be working the following day according to both the respondent's own evidence and the statement he lodged with the formal response. In the tribunal's view the more obvious response, if the respondent had wished to see the claimant, would have been to say that she was working the following day and that he would see her then. Instead, according to his evidence, he first told her a direct lie that there was no further work. He then, having been discussing work matters, refused or failed to give any clear response when the issue of dismissal arose but instead invited the claimant to attend on him at the shop at some unspecified time the following day. The tribunal did not consider this aspect of the respondent's evidence to be convincing and finds that when the question arose as to whether the claimant was being sacked the respondent replied in the affirmative.
8. It follows that the claimant was dismissed. No reason for that dismissal was put forward by the respondent, still less a reason which would be acceptable under the legislation. Nor were any circumstances put forward to show that the dismissal was fair in all the circumstances. The tribunal finds that it was not. The claimant had not sought either reinstatement or re-engagement but had requested compensation only. In the circumstances the tribunal considers compensation would be the appropriate remedy.
9. The claimant's wage averaged, as previously indicated, £100 per week. Such a sum would not be subject to either tax or national insurance contributions and accordingly there is no difference between gross and nett pay. The claimant was over the age of 22 but under the age of 41 at the time of her dismissal and accordingly is entitled to one week's pay (£100), by way of a basic award.
10. The claimant's evidence was that she made a number of efforts to obtain work including applying for lifeguard jobs and work in shops till she finally obtained work in the Mandarin City Restaurant in September. This job she considered to be too busy and left it after some four weeks. The claimant did not give any specific details nor any kind of corroborative evidence as to the number and nature of her applications for work. In the tribunal's view if she had applied herself harder to the process of obtaining work she should, given the nature of the work she had left, have been able to acquire work producing the same kind of rewards within a period of ten weeks and that such a period would be an appropriate measure of compensation. Accordingly the award which the tribunal makes is as follows namely:-

Basic Award £100

Compensatory Award 10 weeks x £100 £1,000

________

Total £1,100

RECOUPMENT

11. The recoupment provisions apply. The monetary award is £1,100. The prescribed element is £1,000. The period to which the prescribed element relates is 15^th May 2007 to 23^rd June 2007.

INTEREST

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

Chairman:

Date and place of hearing: 21 November 2007, Strabane.

Date decision recorded in register and issued to parties: