THE INDUSTRIAL TRIBUNALS

CASE REF:	2159/10

CLAIMANT:			Natasha Fitzsimmons

RESPONDENTS:		1.	David Cook
				2.	Philip Cook

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the first-named respondent and the tribunal awards compensation of £256.80.  The claimant’s claim for unlawful deductions from wages is dismissed.  The claims against the        second-named respondent are dismissed.

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Mr Anthony Carlin
			Ms Elizabeth Gilmartin

Appearances:
The claimant did not appear and was not represented.
The respondents were represented by Ms Quinn, Barrister-at-Law, instructed by Malpas & Greene, Solicitors.

1.	The claimant did not appear at the hearing today and no reason was given for    non-attendance.  The tribunal is satisfied that the claimant was properly notified of this hearing and decided that it would determine the issues in the absence of the claimant.  The first-named respondent, David Cook, was the employer of the claimant.  The second-named respondent, Philip Cook, was the shop manager.  As the first-named respondent is the employer and the claimant’s claims are for unfair dismissal and unauthorised deductions from wages, the tribunal have determined that the second-named respondent should be dismissed as a respondent.  

2.	The tribunal heard evidence from the first-named respondent.  He accepted that the claimant had been dismissed and confirmed that the reason was misconduct.  The first-named respondent had spoken to the claimant on several occasions about her general conduct in the shop.  This occurred over the six month period prior to her dismissal.  The first-named respondent spoke to the claimant after issues were raised by other employees and the first-named respondent having checked the CCTV of the claimant’s behaviour.  This conduct included unauthorised absence from work, not attending to duties whilst at work and till irregularities.  Whilst there was generally a short term improvement in the claimant’s conduct this was never maintained.  Eventually the first-named respondent reached the point where he felt that there was no point in speaking further to the claimant.  The claimant was dismissed.  The claimant worked for 12 hours each week with gross pay of £5.35 per hour and her normal take home pay was £64.20 per week.

3.	Ms Quinn, on behalf of the respondents, accepted that the statutory dismissal and disciplinary procedures, as set out in the Employment (Northern Ireland) Order 2003, had not been followed.  Under Article 130A of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) the dismissal was therefore automatically unfair.  

Conclusions

4.	The tribunal is satisfied that the dismissal of the claimant was automatically unfair under the provisions of Article 130A of the 1996 Order.  Under the same section it is provided that where the dismissal is automatically unfair the tribunal shall make an award of four weeks pay unless it considers that such an award would result in injustice to the employer.  This minimum requirement is to the basic award.  The tribunal has determined that it is appropriate to make the basic award of four weeks and that this does not cause an injustice to the employer.  The claimant’s conduct had been deteriorating over a lengthy period of time and it was open to the employer to have taken the appropriate steps to deal with the situation correctly.  In those circumstances, the basic award by the tribunal is £256.80.

5.	The tribunal also considered making a compensatory award to the claimant.  However, the claimant was not in attendance to give evidence to the tribunal.  The tribunal accepted the evidence of the first-named respondent that there had been serious conduct issues and the tribunal determines that it was inevitable that had a proper procedure been followed, dismissal was within the range of reasonable responses of the employer to make.  The tribunal therefore determines that it is appropriate that no compensatory award be made.  The first-named respondent is a small employer and gave the claimant ample opportunity to mend her behaviour.  The claimant did not take the opportunities offered to her.  It is clear there were substantial attempts to remedy and address the claimant’s conduct.  

6.	The claimant also made a claim for unlawful deductions from wages.  The claimant was not in attendance and the tribunal was not satisfied there was sufficient information or evidence before it to find that the claimant was entitled to any unpaid wages.  The claimant’s claim for unlawful deductions from wages is therefore dismissed.

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

Chairman:

Date and place of hearing:	4 January 2011, Belfast

Date decision recorded in register and issued to parties: