McCarthy v Pete's Pub Limited [2014] NIIT 1847

THE INDUSTRIAL TRIBUNALS

CASE REF: 1847/13

CLAIMANT: Daniel Thomas McCarthy

RESPONDENT: Pete’s Pub Limited

DECISION

The decision of the tribunal is as follows:-

1. That the respondent is hereby ordered to pay the claimant a total sum of £1200.60 in respect of statutory redundancy payment.

2. The claimant’s claims in respect of holiday pay, notice pay and unpaid wages are hereby dismissed since they were lodged outside of the statutory time limit and the tribunal has determined that it should not exercise its discretion to extend the time limit.

Constitution of Tribunal:

Chairman (sitting alone): Ms J Turkington

Appearances:

The claimant appeared and represented himself.

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:-

1. A claim in respect of a statutory redundancy payment.

2. A claim for pay in lieu of holidays accrued but not taken at the date of termination of the claimant’s contract of employment.

3. A claim in respect of the respondent’s failure to pay notice monies.

4. A claim in respect of unpaid wages.

The Issues

The issues to be determined by the tribunal were:-

5. Whether the claimant’s claims were lodged within the respective time limits for the presentation of such claims. If not, whether the tribunal should exercise its discretion to extend the time limit for the presentation of each of the respective claims and therefore whether the tribunal had jurisdiction to hear and determine any of the claims.

6. If the tribunal concluded that it did have jurisdiction to determine the claimant’s claims, it would have to determine the following issues:-

a. Whether the claimant’s employment was terminated by reason of redundancy and whether the claimant was therefore entitled to a statutory redundancy payment and, if so, the amount of such statutory redundancy payment.

b. Whether the claimant had outstanding holidays accrued but not taken at the date of termination of his contract and, if so, the amount of pay in lieu of such holidays due to the claimant.

c. Whether the respondent failed to provide the required period of notice to the claimant or to pay the claimant in lieu of notice and, if so, the amount of pay in lieu of notice due to the claimant.

The title of the respondent

7. The second named respondent, Peter Majury, and the third named respondent, Kelly Majury, are dismissed from the proceedings, as the correct employer of the claimant was the first named respondent, Pete’s Pub Ltd.

Disposal of the claim in the absence of the respondent

8. 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. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

9. 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:-

10. The claimant whose date of birth is 25 April 1946 began work at the Slip Inn, Portaferry on 2 February 2009. At this time, his employer was Scandown Properties LLP. Then in early 2011, the pub business was transferred to North Down Leisure followed by another transfer in June 2011 to Pete’s Pub Ltd.

11. The claimant worked as a Bar Manager. His contract was for 35 hours per week, but he worked on average 40 hours per week. His rate of pay was £6.67 per hour. The claimant’s average gross pay was £266.80 per week.

12. On or about 2 January 2013, the claimant was getting ready for work when he received a phone call from the respondent to say that the pub business would not be opening that day. He was asked to come in at around 12 o’clock. At that time, the bar had been cleared and the respondent confirmed that the bar was closing and would not be opening again.

13. The claimant and his colleagues were told that they would get paid 2 days later. However, they did not receive their entitlements.

14. The claimant was paid fortnightly. The claimant’s holiday entitlement was 28 days per annum, based on 7 hour working days.

15. After the closure of the pub business, the claimant was in touch with the respondent by phone and text. The respondent confirmed that the claimant had 13 days untaken holiday at the end of 2012. The respondent also confirmed that the claimant was owed 77 hours wages for the final fortnight of his employment.

16. In April 2013, the claimant began work in a self-employed capacity.

17. The claimant understands that the directors of the respondent company are bankrupt, although the respondent company is not formally insolvent. The claimant and his former colleagues have been in touch with the trustee in bankruptcy of the directors by phone seeking their entitlements. The trustee advised them to lodge their claims with the Redundancy Payments Branch. The claimant and her colleagues then submitted forms to Redundancy Payments Branch. After some time, their claims were rejected. In July 2013, the claimant and his colleagues sought advice from the local CAB and they were advised to bring their claims before the tribunal.

18. The claimant’s claim form was lodged with the tribunal on 21 October 2013.

Statement of Law

Time limits

19. By article 199 of the Employment Rights (Northern Ireland) Order (“the Order”):-

(1) an employee does not have any right to a redundancy payment unless, before the end of the period of 6 months beginning with (the date of termination)

(a) …….

(b) the employee has made a claim for the payment by notice in writing given to the employer; or

(2) An employee is not deprived of his right to a redundancy payment if during the period of 6 months immediately following the period mentioned above, the employee

(a) …….

(b) refers to a tribunal a question as to his right to the payment

And it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

In determining whether it is just and equitable that the employee should receive a redundancy payment, the tribunal shall have regard to

(a) The reason shown by the employee for his failure to take any such step as is referred to in para (2) within the period mentioned in para (1), and

(b) All the other relevant circumstances.

20. In respect of a claim for holiday pay under the Working Time Regulations, an employment tribunal shall not consider such a complaint unless it is presented –

(a) before the end of the period of three months beginning with the date on which it is alleged that ……………….. the payment should have been made;

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

It is for the claimant to show “precisely why it was that he did not present his (claim)” on time – see Porter v Bandridge Ltd 1978 ICR 943, CA.

21. The claimant has brought a claim for pay in lieu of notice and for unpaid wages, both of which can be considered to be claims in respect of unauthorised deductions from wages. Under article 55 (2) of the Order, a tribunal shall not consider such a complaint unless is it presented before the end of the period of 3 months beginning with the date of the payment of the wages from which the deduction was made. Where the tribunal is satisfied that it was not reasonably practicable for the claim to be presented within this primary time limit, it may nevertheless consider the claim if it is presented within such further period as the tribunal considers reasonable.

Entitlement to a Redundancy Payment

22. 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.

Entitlement to Holiday Pay

23. Under Regulation 13 of the Working Time Regulations (as amended), a worker is entitled to a total of 4.8 weeks paid leave in any leave year. By Regulation 14, where a worker’s employment is terminated during the course of his leave year and, on the termination date, the proportion of leave which he has taken is less than the proportion of the leave year which has expired, the employer must make a payment in lieu of leave accrued but not taken.

Entitlement to Notice

24. 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.

Unlawful Deductions from Wages

25. By article 45 of the Order, an employer shall not make a deduction from wages of a worker employed by him save in certain defined circumstances. Where the total amount of wages paid to the worker on any occasion is less than the total amount of wages properly payable, the amount of the deficiency shall be treated as a deduction. A complete failure to pay wages due is an unlawful deduction from wages.

Conclusions

Redundancy Payment Claim

26. In this case, the claimant’s employment was terminated on 2 January 2013. His claim in respect of a redundancy payment was lodged with the tribunal on 21 October 2013. Accordingly, the claim was lodged between 6 and 12 months after the date of termination of his employment, that is within the second period of 6 months referred to at para 19 above. Accordingly, the tribunal has a discretion to treat the claim as being in time if it considers it just and equitable to do so having regard, firstly, to the reason shown by the claimant for the delay and, secondly, all the circumstances of the case.

27. The claimant explained in the course of his evidence that he was initially told by the respondent that his entitlements would be paid within a few days. Thereafter, he was in contact with the trustee in bankruptcy of the directors of the respondent company before submitting a form to the Redundancy Payments Branch in order to claim his redundancy payment.

28. The claimant explained that he and his former colleagues had been unclear as to how to pursue their entitlements and the situation was confusing and complicated.

29. In the circumstances, the tribunal was sympathetic to the claimant’s difficulties and conscious of the broad discretion afforded to the tribunal by the relevant provisions in the Order. The tribunal has concluded that it is just and equitable in all the circumstances for the claimant’s claim to be treated as having been lodged in time.

30. Accordingly, the tribunal proceeded to consider the substance of the claimant’s claim for a statutory redundancy payment. The tribunal had no hesitation in concluding that the claimant’s employment was terminated by reason of redundancy in view of the clear indication from the respondent that the business was ceasing to trade. The claimant is therefore entitled to a statutory redundancy payment as follows:-

The claimant was aged 66 at the date of termination and had 3 years continuous employment.

1½ weeks gross pay for each full year of continuous employment during which the claimant was aged over 41

4½ x £266.80 (a week’s gross pay) = £1200.60

31. The respondent is therefore ordered to pay to the claimant a statutory redundancy payment in the sum of £1200.60.

Holiday pay claim

32. The claimant should have received holiday pay in his final pay which was due to be paid in or around the first week of January 2013. Therefore, the primary 3 month time limit for lodging this claim with the tribunal expired in the first week of April 2013. The claimant provided limited explanation as to why this claim could not be lodged on time and the tribunal was mindful that the burden was firmly on the claimant to explain the delay. The tribunal is also mindful that its discretion to extend time on the “not reasonably practicable ground” is fairly constrained. Having considered all the relevant facts, the tribunal concluded that the claimant had not established that it was not reasonably practicable for him to have lodged this claim on time.

33. Furthermore, the claimant would have had to establish that he had lodged this claim within “such further period as the tribunal considers reasonable”. In this case, it was clear that the claimant and his colleagues had received advice from the CAB in July 2013 that they should bring their claims to the tribunal. However, it was not until 21 October 2013, some 3 months later that this claim was actually lodged with the tribunal. Accordingly, if this point had been directly relevant to its decision, the tribunal would have concluded that this claim was not lodged within a reasonable time after the expiry of the 3 month time limit.

34. For these reasons, the tribunal has concluded that it does not have jurisdiction to consider the claimant’s claims for notice pay or unpaid wages and these claims are therefore dismissed.

Notice Pay Claim and Unpaid Wages Claim

35. As set out at para 20 above, these claims can be considered to be claims for unauthorised deductions from wages. As such, these claims must be brought within 3 months of the date when the relevant payment of wages should have been made. The tribunal can only extend time where it is satisfied, firstly, that it was not reasonably practicable for the claim to be presented within this primary time limit and, secondly, that the claim was presented within such further period as the tribunal considers reasonable.

36. In this case, the claimant’s final pay was due to have been paid to him in the first week of January 2013. The claimant’s claim form was not lodged until 21 October 2013. The time limit in respect of these claims and the tribunal’s discretion to extend time for these claims is essentially the same as that which is applicable to the claim for holiday pay. Accordingly, in considering the question of time limits for these claims, the tribunal considered the same factors as referred to at paras 32 and 33 above. Having taken account of these matters, the tribunal reached the same conclusion, namely that the claimant had not satisfied the tribunal that it was not reasonably practicable for her to have lodged the claim on time. Furthermore, should it have become necessary for the tribunal to consider this point, the tribunal would have determined that the claim form was not lodged within a reasonable time thereafter.

37. Therefore, the tribunal has concluded that it does not have jurisdiction to consider the claimant’s claims for notice pay or unpaid wages and these claims are therefore dismissed.

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

Chairman:

Date and place of hearing: 26 November 2013, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCarthy v Pete's Pub Limited [2014] NIIT 1847_13IT (09 January 2014) URL: http://www.bailii.org/nie/cases/NIIT/2014/1847_13IT.html Cite as: [2014] NIIT 1847_13IT

Industrial Tribunals Northern Ireland Decisions

Disposal of the claim in the absence of the respondent