Industrial Tribunals Northern Ireland Decisions

 


Duffy v Cosgrave (Redundancy Pay) [2002] NIIT 126_02 (14 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 126/02

APPLICANT: Mark Duffy

RESPONDENT: Desmond Cosgrave

DECISION

The unanimous decision of the tribunal is that the respondent pay to the applicant the sum of £495 by way of a redundancy payment.

Appearances:

The applicant appeared in person.

The respondent appeared in person.

Summary Reasons

1. There were two issues in the case. The first was whether there had been a break in the applicant's continuity of employment such as to disqualify him from receiving a redundancy payment. The second issue was whether the applicant had been given notice and, if not, whether he was entitled to notice pay and how much.
2. It was common case that the applicant was originally employed with the respondent in May 1998. He continued to work there until the Christmas/New Year period 1999/2000. The respondent had had a fall at work and was unable to continue with his trade of plastering for which the applicant was a helper. The applicant worked for a brief period immediately following that time for a firm of builders for whom the respondent regularly carried out work. By the middle of February 2000 the respondent had returned to work himself and the applicant came to work for him again. Given the nature of the respondent's injury, the comparatively brief period for which it was likely that he would be unable to work, the close relationship between himself and the building firm with whom the applicant was employed over this brief period, the nature of the letter of confirmation from the building firm that the applicant was employed by them "in a temporary capacity" and the immediate availability and recruitment of the applicant for work as soon as the respondent was able to return, the Tribunal concludes, having considered the contradictory features of the applicant's and the respondent's evidence, that the applicant's absence from work with the respondent was of a temporary nature. The tribunal considers that it was expected by both parties that the employment relationship would be only temporarily suspended and that as soon as the respondent was available for work again the applicant would return as his helper. In these circumstances the applicant falls within the protection afforded by Article 8(3) of the Employment Rights (NI) Order 1996 and those weeks of temporary absence do not constitute a break in continuity of employment. Accordingly the applicant was continuously employed, for the purposes of entitlement to a redundancy payment, until his contract was finally terminated in November 2001. The tribunal is satisfied on the basis of the respondent's evidence, and considering that the applicant accepted that his only other co-worker was paid off at or about the same time, that the termination of the applicant's contract of employment was due to redundancy. The applicant had been employed for three complete years during all of which he was between the ages of 22 and 41 and is therefore entitled to three weeks' pay at the figure of £165 per week as quoted in both the Originating Application and the Notice of Appearance amounting in total to £495.
3. The next question for the tribunal is whether the applicant was entitled to pay in lieu of notice. It was common case that the applicant was unable to work due to a back problem from the beginning of October. He submitted a sick line, which the Tribunal finds was for a period of one month. He had also submitted a further sick line. According to the respondent he visited the applicant in the second week of October and told him that the work situation was poor and that his contract would be terminated if nothing more came up. The applicant's evidence as to visits from the respondent in this period and as to the amount of sick pay which had been paid was somewhat confused. The applicant did say that he received a visit in the second week of October when he was told that he would receive nothing more. He also accepted in cross-examination that he probably got four weeks' sick pay. The tribunal considers the applicant's recollection in this instance is inaccurate and finds that following the visit in the middle of October, which undoubtedly took place, the applicant was aware that his contract was to be terminated, which event took place, as he says himself in his Originating Application, three weeks later on 2 November. That is sufficient notice to satisfy any requirement applicable in the present case and accordingly no pay in lieu of notice is due.
4. Recoupment

No question of recoupment arises.

5. Interest

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

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Date and place of hearing: 8 May 2002, Belfast

Date decision recorded in register and issued to parties: 14 June 2002