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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Monteith v Osborne t/a Oak Accountan... [2009] NIIT 399_09IT (05 June 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/399_09.html Cite as: [2009] NIIT 399_09IT, [2009] NIIT 399_9IT |
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CLAIMANT: Sharon Monteith
RESPONDENT: John Osborne t/a Oak Accountancy
The decision of the tribunal is that, further to the default judgment in respect of liability issued on 22 April 2009, the respondent is hereby ordered to pay to the claimant a total sum of £3296.08 in respect of notice monies, unpaid wages and statutory redundancy payment.
Constitution of Tribunal:
Chairman (sitting alone): Ms Turkington
The claimant appeared and represented herself
The respondent had not lodged a response form and did not appear at the hearing
The Claims
The claimant brought the following claims before the tribunal:-
A claim for breach of contract in respect of the respondent’s failure to pay notice monies.
A claim in respect of unpaid wages.
A claim in respect of the respondent’s failure to pay a statutory redundancy payment to the claimant upon termination of her employment.
The Issues
The issues to be determined by the tribunal pursuant to the default judgment in respect of liability were:-
The amount of pay in lieu of notice due to the claimant.
The amount due to the claimant in respect of unpaid wages.
The amount due to the claimant by way of statutory redundancy payment.
The respondent did not appear at the hearing. 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. A default judgment had been issued in this case in respect of liability and the hearing was required to address the question of remedy only. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Sources of Evidence
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:-
The claimant, whose date of birth is 11 August 1961, started her employment as a book-keeper/payroll officer for the respondent on or about 7 August 2006. The claimant did receive a statement of main terms and conditions of employment, but was not in a position to produce this to the tribunal as it had been kept in the respondent’s offices and could not be accessed by the claimant.
The claimant worked 35 hours per week. Initially, the claimant was paid at £7.50 per hour. In or about January 2007, the claimant’s rate of pay was increased to £8.50 per hour. Then in or around July 2008, the claimant was offered another job and the respondent then agreed to a pay rise to £18,000 per annum, that is £1500 per month gross, £1139.97 net.
On 26 September 2008, the claimant went to work as usual only to find that the respondent had simply ceased trading overnight and vacated the premises without any prior warning. The claimant’s employment was therefore effectively terminated by the respondent on 26 September 2008.
The claimant did not receive notice of the termination of her employment nor did she receive pay in lieu of notice. The claimant was entitled to statutory minimum notice only.
The claimant only received total net pay of £500 for the month of August 2008. Whilst she did receive a pay slip for September 2008, the claimant did not receive any pay for that month.
The claimant did not receive any statutory redundancy payment from the respondent.
The claimant wrote to the respondent on 1 October 2008 setting out the claimant’s complaints in respect of pay in lieu of notice, redundancy payment and unpaid wages. The respondent did not make any response to that letter.
Following the termination of her employment, the claimant claimed Jobseekers Allowance for a period.
Statement of Law
By Article 118 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), the notice required to be given by an employer to terminate the contract of employment of an employee is one week’s notice for each year of continuous employment between 2 years and 12 years.
By Article 45 of the Order, an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction. A complete failure to pay wages on any occasion constitutes a deduction from wages.
Under Article 170 of the Order, an employer shall pay a redundancy payment if an employee is dismissed by reason of redundancy. By Article 174, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the employer has ceased to carry on the business for the purposes of which the employee was employed.
Conclusions
At the date of termination of her employment, the claimant had 2 years continuous employment with the respondent. The claimant was therefore entitled to 2 weeks notice or 2 weeks pay in lieu of notice. Since the claimant did not receive notice or pay in lieu, the claimant is entitled to pay in lieu of notice as follows:-
£263.07 per week multiplied by 2 weeks = £526.14.
The tribunal concluded that the claimant had a shortfall in wages for the month of August 2008 and received no wages at all for the month of September 2008 and the claimant is therefore entitled to the following payment from the respondent:-
August 2008 – net pay due = £1139.97 - £500 received
Shortfall of net pay = £639.97
September 2008 – net pay due = £1139.97 – nil received
Shortfall of net pay = £1139.97
Total due in respect of unpaid wages = £639.97 + £1139.97= £1779.94
22. The tribunal had no hesitation in concluding that the claimant’s employment was terminated by reason of redundancy since the respondent had ceased trading and vacated his business premises.
The claimant is therefore entitled to a statutory redundancy payment as follows:-
1.5 weeks gross pay (capped at £330) for each full year of continuous employment during which the claimant was aged 41 or over:
1.5 multiplied by £330 multiplied by 2 = £990
23. The total sum due to the claimant by the respondent is £3296.08.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990
Chairman:
Date and place of hearing: 7 May 2009, Belfast.
Date decision recorded in register and issued to parties:
