Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   14433/18

 

 

CLAIMANT:              Francis John Cooney

 

RESPONDENT:      Eoin McCaughley, t/a Avondale Fitted Furniture

 

 

DECISION

 

The decision of the tribunal is that the claimant is entitled to an award of £19,352.00 in respect of a redundancy payment, notice pay and unpaid wages.

 

 

CONSTITUTION OF TRIBUNAL:

 

Employment Judge (sitting alone):       Employment Judge Wimpress

 

 

APPEARANCES:

 

The claimant appeared in person and was not represented.

 

The respondent did not attend the hearing and was not represented.

 

 

SOURCES OF EVIDENCE

 

1.         The tribunal heard oral evidence from the claimant and received a number of documents from him including bank statements, P60s and correspondence with HMRC.  No payslips were available as these were not provided by the respondent.  In response to a request made by the tribunal the claimant provided additional bank statements for the period 23 June 2018 to 24 August 2018.  The claimant also provided a short statement which sought to identify and correct an error in his evidence to the tribunal in relation to the date on which he was last paid by the respondent.  As a result the tribunal considered it necessary to reconvene in order to receive the claimant’s sworn evidence in relation to these matters.

 

THE CLAIM AND THE RESPONSE

 

2.         The claimant brought claims for a redundancy payment, notice pay, holiday pay and arrears of pay following the termination of his employment with the respondent.  The respondent did not file a response and did not attend the hearing.  I am satisfied that the claim form and notice of hearing were posted to the respondent at his home address.

 

 

 

THE ISSUES

 

3.         Whether the claims brought by the claimant have been made out.

 

THE FACTS

 

4.         The claimant’s date of birth is 11 August 1973 and at the date of hearing he was aged 45.  The claimant commenced employment with the respondent as a cabinet maker/ shop fitter on 15 August 1989 and continued to work for the respondent until 21 September 2018 and thus had 29 completed years of service.  The respondent business operated out of premises at 35B Derryall Road, Portadown.  The claimant worked a 39 hour week on a Monday to Friday basis with overtime at nights and at weekends when the business was doing well.  According to the claimant he was paid £2,028.00 gross and £1,720.00 per month net.  The claimant’s weekly gross pay was therefore £468.00 gross and his daily rate of pay after tax was £86.00.  

 

5.         It is clear that the respondent business was in difficulties from May 2018 and the claimant was last paid on 24 May 2018 on which date he received net pay of £1,735.00 as verified by his bank statement and no pay thereafter.  The claimant in both his claim form and his evidence to the tribunal confined his loss under this heading to two months’ pay.  The claimant's employment subsequently terminated when Mr McCaughley announced on Friday 21 September 2018 that he was closing down the business.  The claimant asked Mr McCaughley about redundancy pay and he replied that he hadn’t the money to pay it.  The claimant raised this again with Mr McCaughley on 29 January 2019 and he replied that he would not be paying any redundancy and expected to be bankrupt the following week.

 

6.         The claimant was allowed 25 days leave per year with holidays being required to be taken when the business closed down - two days at Easter, May Day, two weeks in July, two days at Halloween and two weeks at Christmas.   In his claim form the claimant asserted that he was entitled to approximately 3 weeks’ paid holiday which he equated to £1,521.00.  In his evidence to the tribunal the claimant revised this down to 12 days which at £86.00 per day would equate to £1,032.00.

 

THE LAW     

 

7.         A redundancy is defined in Article 174 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") as follows:

 

“174.   (1) for the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if a dismissal is wholly or mainly attributable to -

 

(a)       the fact that his employer has ceased or intends to cease -

 

(i)        to carry on the business for the purposes of which the employee was employed by him, or

 

(ii)       to carry on that business in the place where the employee was so employed, or

 

(b)       the fact that the requirements of that business -

 

(i)           for employees to carry out work of a particular kind, or

 

(ii)          for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”

 

8.         Articles 197, 198 and 199 make further provision in respect of redundancy as follows:   

 

“197.   (1)  The amount of a redundancy payment shall be calculated by:-

 

(a)          determining the period, ending with the relevant date, during which the employee has been continuously employed,

 

(b)          reckoning backwards from the end of that period the number of years of employment falling within that period, and

 

(c)          allowing the appropriate amount for each of those years of employment.

 

(2)  In paragraph (1)(c) “the appropriate amount” means:-

 

(a)          one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one,

 

(b)          one week's pay for a year of employment (not within
sub-paragraph (a)) in which he was not below the age of twenty-two, and

 

(c)          half a week's pay for each year of employment not within sub-paragraph (a) or (b).

 

198. (1)  Any question arising under this Part as to:-

 

(a)          the right of an employee to a redundancy payment, or

 

(b)          the amount of a redundancy payment, shall be referred to and determined by an industrial tribunal.

(2)  For the purposes of any such reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.

 

199.    (1)  An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date:-

 

(a)          the payment has been agreed and paid,

 

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

 

(c)          a question as to the employee's right to, or the amount of, the payment has been referred to an industrial tribunal, or

 

(d)          a complaint relating to his dismissal has been presented by the employee under Article 145.

 

(2)  An employee is not deprived of his right to a redundancy payment by paragraph (1) if, during the period of six months immediately following the period mentioned in that paragraph, the employee:-

 

(a)          makes a claim for the payment by notice in writing given to the employer,

 

(b)          refers to an industrial tribunal a question as to his right to, or the amount of, the payment, or

 

(c)          presents a complaint relating to his dismissal under
Article 145, and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

 

(3)  In determining under paragraph (2) whether it is just and equitable that an employee should receive a redundancy payment an industrial 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 paragraph (2) within the period mentioned in paragraph (1), and

 

(b)          all the other relevant circumstances.”

 

9.         Notice Pay

 

Article 118 of the Employment Rights (Northern Ireland) Order 1995 makes provision in relation to notice periods as follows:-

 

"118.   (1)  The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more -

 

(a)          is not less than one week's notice if his period of continuous employment is less than two years,

 

(b)          is 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 twelve years, and

 

(c)          is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.

 

(2)  The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week."

 

10.       Unauthorised Deduction from Wages

 

Article 45(1) of the 1996 Order provides as follows:

 

"An employer shall not make a deduction from wages of a worker employed by him unless - (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction".

 

Article 45(3) of the 1996 Order provides as follows:

 

"Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion".

 

11.       Breach of Contract

 

The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 confers jurisdiction on industrial tribunals to hear claims for breach of contract and Article 3(c) provides as follows: -

 

"Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for sum due in respect of personal injuries) if - ...

 

(c)       the claim arises or is outstanding on the termination of the employee's employment."

 

12.      Holiday Pay

 

The Working Time Regulations (Northern Ireland) 2016 ("the 2016 Regulations") provide under Regulations 15 and 16 for a worker to have minimum leave in a year of 5.6 weeks or 28 days.  Under Regulation 17 of the 2016 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.

 

CONCLUSIONS

 

13.       I am satisfied that the claimant's claims for a redundancy payment, arrears of pay and notice pay are made out.

 

(i)            Redundancy Payment

 

            It is clear that the claimant was made redundant as a result of the closure of the respondent’s business and that the claimant has taken the necessary steps within time as required by Article 199 of the 1996 Order in order to pursue same.  In particular the claim in respect of redundancy pay has been brought within the time limit set out in Article 199(1).  Using the statutory formula (half a week’s pay for each full year under the age of 22 and 1 week’s pay for each full year when he was 22 or older, but under 41) the claimant is entitled to 22 weeks redundancy pay.

 

(ii)          Notice Pay

 

In accordance with the Article 118 formula the claimant is entitled to 12 weeks’ notice pay.

 

(iii)         Arrears of Pay

 

I am satisfied that the claimant is entitled to two months arrears of pay either on the basis of breach of contract or unauthorised deduction from wages.

 

(iv)         Holiday Pay

 

As indicated above the claimant seeks 12 days holiday pay.  It is apparent from the claimant’s evidence that the respondent’s holiday arrangements did not comply with the 2016 Regulations under which the claimant should have received 28 days annual holiday.  In view of the manner in which holidays were arranged in the respondent’s business it is unfruitful to attempt to apply the statutory formula to the claimant’s situation.  There is clearly a degree of overlap between the claim in respect of unpaid wages and holiday pay in terms of timing.  I am not satisfied that the claimant is due payment in respect of any untaken leave.  In any event it seems to me that the award that I have made in respect of arrears of pay would be duplicated if I made an award of holiday pay as this would inevitably include the two week July holiday.  In these circumstances I am not satisfied that it would be appropriate to make a separate award in respect of holiday pay.

 

AWARD

 

14.       Redundancy Payment

 

£468.00 x 22 weeks             =          £10,296.00

 

            Notice Pay

 

£468.00 x 12 weeks             =          £5,616.00

 

Arrears of Pay

 

£1,720.00 x 2                        =          £3,440.00

 

            Total                                                  £19,352.00

 

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

 

 

 

 

Employment Judge:

 

Date and place of hearing:  30 January 2019 and 6 March 2019, Belfast.

 

Date decision recorded in register and issued to parties: