THE INDUSTRIAL TRIBUNALS

 CASE REF:6807/09

CLAIMANT: 				Karen Lyons

RESPONDENTS: 			Arnaldo Morelli
					Morelli’s Ices

DECISION 

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  The claimant is entitled to £3690.24

Constitution of the Tribunal

Chair:  		Ms F Oliver

Panel Members: 	Ms V Walker

Mr J Patterson

Appearances:

The claimant appeared and was represented by Messrs McCallum O’Kane Solicitors.

The respondents did not appear. 

Sources of Evidence

1.	The tribunal considered the claim form and noted that the respondent had not filed a response.  The tribunal heard oral evidence from the claimant. 

The Claim and the Defence

2.	The claimant claimed that she had been unfairly dismissed by the respondent. The respondent did not file a response.

Issues

3.	The issue for the tribunal was whether the claimant had been unfairly 	dismissed .

Analysis of the evidence

4.	The claimant gave her evidence in an open and honest manner and we accept her evidence.

Findings of Fact

5.	The claimant commenced employment with the respondent on 10 September 2007 and was dismissed without notice on 18 May 2007.

6.	 The claimant was employed by Arnaldo Morelli trading as Morelli’s Ices.

7.	The respondent did not follow any disciplinary procedures. The claimant was simply called into the respondent’s office and was told that she was being dismissed without notice for gross misconduct.  She was not invited to any meetings to discuss her alleged misconduct nor was she given any right to appeal.

8.	The claimant’s gross pay was £212.01 and her net pay was £180.99 per week.  

9.	The claimant found alternative employment on 3 August 2009 and by 23 October 2009, her new pay was greater that her pay from the respondent. 

The Law

10.	The right not be unfairly dismissed is outlined at Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the ERO”).  Under Article 130A an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures have not been followed due to the employer’s failure.
11.	Under the Employment (Northern Ireland) Order 2003, and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, an employer must follow a minimum procedure when disciplining or dismissing an employee.  If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal.  In respect of the basic award, the tribunal must award a minimum of four weeks’ pay if the basic award transpires to be lower than that figure unless the tribunal considers that such an award would result in injustice to the employer.  The tribunal must also increase any compensatory award which it makes to the employee by 10%, and if it considers it just and equitable in the circumstances, by a larger percentage up to a maximum of 50%.  The percentage increase must be made unless there are exceptional circumstances which would make the increase of 10% minimum unjust or inequitable (Article 17).
Application of the Law and Findings of fact to the Issues.

12.	The respondent did not follow any disciplinary procedures and therefore the dismissal is automatically unfair.  The respondents have not attempted to provide any explanation for their conduct.

13.	The claimant is entitled to a basic award of 4 weeks pay.  The claimant is entitled to an uplift of 10% on the compensatory award due to the respondents’ failure to complete the statutory procedures.

14.	The decision will be issued against Arnaldo Morelli and Morelli’s Ices

15       Calculation of award

           Basic

           4 x £212.01=  							£   848.04

           Compensatory 

           Loss to date of finding alternative employment

           19/05/09 to 02/08/09
           10 weeks and 6 days

           10 x £180.99								£1,809.90

           6/7 of £180.99						          £   155.13

Loss due to lower wages in new employment

           3/08/09 to 23/10/09							£   391.52

          Total loss								£2356.55

          10 % uplift								£ 236.65

          Total Compensatory award					          £2592.20

           Loss of statutory rights						£   250.00

          Total award								£3690.24

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

Chairman:

Date and place of hearing:  26 February 2010, Limavady

Date decision recorded in register and issued to parties: