Bagdonaite v Canopies Ireland Limited [2010] NIIT 06103

THE INDUSTRIAL TRIBUNALS

CASE REF: 6103/09

CLAIMANT: Jurate Bagdonaite

RESPONDENT: Canopies Ireland Limited

DECISION ON A REVIEW

The unanimous decision of the tribunal is that the claimant’s application for review of the decision on a review issued on 10 August 2010 be allowed under Rule 34 (3) (e) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and consequently that the claimant’s application for review of the original decision issued on 20 April 2010 also be allowed under Rule 34 (3) (e) and that the original decision issued on 20 April 2010 now be varied under Rule 36 (3) to read :

“The unanimous decision of the tribunal is that the claimant is entitled to a statutory redundancy payment, the respondent failed to give the claimant proper notice, failed to pay her wages due and dismisses the claimant’s claim under the Working Time Regulations (Northern Ireland) 1998 for holiday pay. The respondent shall pay the claimant £1,167.22”

The remainder of the decision shall be varied as provided hereafter.

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Mr M Grant

Mrs E Kennedy

Appearances:

The claimant appeared and represented herself.

The respondent did not appear and was not represented.

Reasons

1. It was confirmed at hearing that the correct spelling of the claimant’s first name is ‘Jurate’ and the title of the proceedings are accordingly now amended from ‘Juraite Bagdonaite V Canopies Ireland Limited’ to ‘Jurate Bagdonaite V Canopies Ireland Limited’.

2. A decision by the tribunal dismissing the proceedings under Rule 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, there being insufficient evidence before the tribunal to dispose of the proceedings, the claimant having failed to attend or to be represented at the hearing fixed for 26 February 2010 or to otherwise provide documentation to prove the facts of her case, the hearing having previously been postponed in the absence of the claimant’s attendance on 26 January 2010 to allow her the opportunity to do so, was issued on 20 April 2010.

3. By letter dated 29 April 2010 the CAB requested on behalf of the claimant that the tribunal review its decision issued 20 April 2010 on the basis that it was made wrongly as the result of an administrative error and in the interests of justice.

4. The claimant was informed by letter dated 17 May 2010 by the Office of Industrial Tribunals (OIT) that the review application hearing would take place at the OIT’s address on 1 June 2010 at 10.00am.

5. At the review application hearing on 1 June 2010 the claimant did not attend and was not represented and no further evidence was provided to explain or verify the grounds upon which the claimant sought a review application or to verify her claim should her application for review be granted.

6. Under Rule 36(3) of the 2005 Rules the tribunal issued a decision on 10 August 2010 confirming its original decision issued on 20 April 2010 to dismiss the proceedings.

7. By letter dated 18 August 2010 the CAB requested on behalf of the claimant that the tribunal review its decision issued 10 August 2010, in the interests of justice, the claimant not having received the OIT’s letter of 17 May 2010 advising that the review application hearing would take place on 1 June 2010 and that it would have been her intention if aware of it to attend and present argument and evidence as to why her review application had merit.

8. Having now heard the claimant’s oral evidence which the tribunal finds credible it is satisfied that the claimant did not receive the OIT’s letter of 17 May 2010 and was not aware of the review application hearing on 1 June 2010, furthermore, that the claimant believed that she did not need to attend the postponed hearing on 26 February 2010 following a conversation with the CAB in respect thereof, and in the circumstances that the interests of justice require a review of the tribunal’s decisions issued on 10 August 2010 and 20 April 2010, both under Rule 34 (3) (e) of the 2005 Rules and accordingly that the remainder of the original decision issued on 20 April 2010 now be varied under Rule 36 (3) of the 2005 Rules to read :

“

1. The claimant in her claim complained that she had not been paid a redundancy payment, was not given proper notice of termination of her employment, had suffered an unauthorised deductions from her wages, indicated that she had a claim under the Working Time Regulations and sought in total £1285. The claimant confirmed at hearing that her reference to the Working Time Regulations was raising a potential holiday pay claim although she did not know if she was actually entitled to any payment.

2. The respondent confirmed in its response that it did not intend to resist the claimant’s claims and that the claimant was dismissed because the respondent could no longer afford to trade.

Issues

3. The issues for the Tribunal were:

- whether the claimant is entitled to a redundancy payment?

- whether the respondent failed to give the claimant proper notice?

- whether the respondent failed to pay the claimant wages due to her?

- whether the respondent failed to pay the claimant in lieu of untaken holidays due to her?

Evidence

4. The Tribunal considered the claim, response, documentation received from the claimant and heard the claimant’s oral evidence.

Findings of Fact

5. The claimant who was born on 1 September 1986 commenced employment with the respondent on 5 September 2006 as a general operative and worked a lying week at the beginning of her employment. The claimant was paid on average £235.50 gross per week being £198.00 net, as supported by payslips produced.

6. During her employment the claimant received a statement of particulars

of employment which provided for 24 days annual holiday with pay, in the holiday year which ran as per the calendar year. The contract confirmed that on termination of employment the claimant would be entitled to annual holidays, or pay in lieu thereof, based on the length of service in that holiday year less any holidays already taken, it also provided that “unless there are exceptional circumstances, you may not carry your holiday entitlement forward into the next holiday year.” The claimant’s statement of particulars also provided for her to receive one weeks’ notice of termination of her employment.

7. The claimant received five days paid holidays in January 2009.

8. In February 2009 the claimant was informed by the respondent that the company had ceased trading and she was being made redundant. The tribunal find as per the P45 provided to the claimant that her employment terminated on 6 February 2009.

9. The claimant received cheques dated 23 January 2009 for £140.27 and 4 February 2009 for £197.45 from the respondent in respect of wages which were returned on presentation to her bank and the claimant has not received payment from the respondent for these wages. The claimant did not receive on termination of her employment payment in respect of the lying week she had worked.

10. The claimant has not received any redundancy payment from the respondent.

The Law

11. Under Article 118B of the Employment Rights (Northern Ireland) Order 1996 an employer is required to give minimum notice to terminate the contract of employment of a person of not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

12. Article 170 of the 1996 Order provides that an employer shall pay a redundancy payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on that business for the purposes of which the employee was solely employed by him.

13. Article 197 of the 1996 Order sets out how the amount of a redundancy payment shall be calculated and that the ‘appropriate amount’, being the factor dependant on age used for calculation purposes, is half a week’s pay for each year of employment in which the employee was below the age of twenty-two.

14. Under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.

15. Article 45 of the 1996 Order provides for a worker’s right not to suffer unauthorised deductions from wages by his employer. A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.

16. The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulations 13 and 13A for a worker to have minimum leave in a leave year of 5.6 weeks from 1 April 2008.

Applying the Law to Facts Found

17. On consideration of all the evidence before it the tribunal is satisfied of the following:-

Redundancy Payment

18. The claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent having ceased trading. The claimant reckoning backwards from the end of her period of employment has two complete years for which she was continuously employed, during the whole or part of which she was below the age of twenty-two. The claimant is accordingly entitled to a redundancy payment calculated in accordance with Article 197 as follows:-

(i) 2 years continuous employment x 0.5 x 235.50 = 235.50

Notice

19. While the claimant’s contract of employment only provided for her to receive one week’s notice of termination of her employment, Article 118B of the 1996 Order implies a minimum notice requirement of two weeks into the claimant’s contract of employment with the respondent, the claimant having two years continuous employment at her effective date of termination, but she did not receive proper notice and is entitled to two weeks net pay being £396.00 in lieu thereof.

Wages

20. The respondent has breached the claimant’s contract of employment in failing to pay her on termination of her employment one week’s wages of £198.00 in respect of the lying week worked and wages of £140.27 and £197.45 in respect of which the respondent’s cheques were returned and that the claimant has suffered an unlawful deduction in respect thereof. The respondent is ordered to pay the claimant £535.72 in respect thereof.

Holidays

21. The claimant under the 1998 Regulations would have been entitled to receive 2.84 days paid holiday pro rata in the 2009 holiday year up to termination of her employment. The claimant however received five days paid holidays in the 2009 holiday year prior to termination of her employment and accordingly does not have any holidays accrued due and is not entitled to any payment in lieu of untaken holidays.

Conclusion

22. The tribunal finds that the claimant is entitled to a statutory redundancy payment, the respondent in breach of the claimant’s contract of employment failed on termination of her employment to give the claimant her statutory minimum notice entitlement, failed to pay the claimant wages due and dismisses the claimant’s claim under the Working Time Regulations (Northern Ireland) 1998 for holiday pay. The respondent shall pay the claimant £1167.22.

Summary of Compensation Awarded

Redundancy Payment £ 235.50

Notice £ 396.00

Wages £ 535.72

_______

TOTAL £1167.22

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

Chairman:

Date and place of hearing: 27 August 2010, Belfast

Date decision issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bagdonaite v Canopies Ireland Limited [2010] NIIT 06103_09IT (07 October 2010 URL: http://www.bailii.org/nie/cases/NIIT/2010/06103_09IT.html Cite as: [2010] NIIT 06103_09IT

Industrial Tribunals Northern Ireland Decisions