Industrial Tribunals Northern Ireland Decisions

 


Davidson v Heaslip (t/a Precision Design) (Jurisdiction/Redundancy Pay) [2002] NIIT 3336_01 (20 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 3336/01

APPLICANT: Hugh Scott Davidson

RESPONDENT: Thomas Heaslip trading as Precision Design

DECISION

The unanimous decision of the Tribunal is that the tribunal does have jurisdiction to entertain the applicants claim in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. In view of the time limits set out in Article 199 of the Employment Rights (Northern Ireland) Order 1996 the applicant is entitled to a redundancy payment. The tribunal orders that in respect of the claim for a redundancy payment the respondent should pay to the applicant the sum of £1,955.00. Further in respect of damages for breach of contract the tribunal orders the respondent to pay to the applicant the sum of £2,200 less any social security benefits received in the notice period i.e. 10 weeks from the 17 January 2001.

Appearances:

The applicant appeared on his own behalf.

The respondent failed to appear but did enter a Notice of Appearance.

Summary Reasons

1. This is a complaint by the applicant for a redundancy payment and wages in lieu of notice due and owing upon the termination of his employment by the respondent on the 17 January 2001. The applicant's originating application to the Office of the Industrial Tribunals and Fair Employment Tribunal was recorded as received on 8 October 2001.
2. The issues in this case were in view of the time limits set down in the relevant statutes, did the tribunal have jurisdiction to entertain the applicant's claims and was the applicant entitled to a redundancy payment.
3. The applicant gave evidence to the tribunal. After considering the whole of the evidence, both oral and documentary, on the balance of probabilities we found the following facts: -
4. The applicant was dismissed without notice from his employment as a wood machinist on the 17 January 2001 because the respondent was suffering difficult trading circumstances and there was insufficient work for all the employees. He received no pay in lieu of notice but instead was requested by a Mr B Toner of Fox Associates, Solicitors and Insolvency Advisors, to complete an "RP1" form on the 19 January 2001. Mr Toner advised the applicant that the form would be submitted to the relevant government department and he would receive payment within three to four months. At the time of his dismissal the applicant was earning £280 per week gross and £220 per week nett.
5. The applicant maintained contact with Redundancy Branch within the Department of Higher and Further Education, Training and Employment regarding progress of his claim for payment from the National Insurance Fund. It was not until September 2001 that they informed him that his employer was not bankrupt and so they were not liable to pay his redundancy payment. They advised him to complete an application to an Industrial Tribunal. The applicant immediately wrote to the respondent on 17 September 2001 and after receiving no response he submitted his complaint to the Office of Industrial Tribunals and Fair Employment Tribunal fourteen days later. The originating application lodged on the 8 October 2001 was dated the 18 September 2001.
6. The respondent did not dispute the applicant's claim on the RP1 form that he was entitled to one weeks notice for each year of his employment.
7. The tribunal is satisfied that the applicant was dismissed for reason of redundancy as his dismissal was for reasons that satisfied the conditions of Article 174 (1)(a)(i) of the Employment Rights (Northern Ireland) Order 1996. The tribunal has had regard to Article 199 of the Employment Rights (Northern Ireland) Order 1996. The tribunal is satisfied that the applicant did make a claim for payment of redundancy from the respondent in September 2001. Further in accordance with Article 199(2) the tribunal is satisfied in the circumstances of this case that it is just and equitable that the applicant should receive a redundancy payment.
8. The applicant's claims in respect of monies due in respect of pay in lieu of notice was presented to the Office of the Industrial Tribunals and Fair Employment Tribunal well outside the time limits set out at Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. The tribunal is satisfied that the applicant was contractually entitled to 10 weeks statutory notice.
9. The tribunal then considered whether it had been reasonably practicable for the applicant to present his complaint within three months from the 17 January 2001 and if not had the complaint been presented within a reasonable period after that date.
10. It appeared to the tribunal that this was an unusual case. The respondent's representative, in advising the applicant in January that the government within three to four months would pay the monies, led the applicant to believe that his entitlements were accounted for. This belief was assisted by the continuous contact that the applicant maintained with Redundancy Payments Branch who advised him that his claim was being processed. It was not until September 2001 that the applicant was advised that there was a problem regarding payment from the National Insurance Fund of the monies due for redundancy and notice. The tribunal took note of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119. In that case it was said that "depending on the circumstances of the particular case, an employment tribunal may wish to consider the substantial cause of the employee's failure to comply with the statutory time limit; in some cases the tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee…It will frequently be necessary for the tribunal to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the adviser's knowledge of the facts of the employee's case; and of the nature of any advice which they may have given him".
11. Further it appeared to this tribunal in all the circumstances of this case, in particular the actions of the respondent and his representative, that the applicant's mistaken belief was reasonable – Walls Meat Co Ltd v Khan [1978] IRLR 499. The tribunal did not consider that there was any substantial failure on the part of the applicant which led to the failure to comply with the time limit. The tribunal is satisfied that it was not reasonably practicable for the applicant to have lodged with the Office of the Industrial Tribunals and Fair Employment Tribunal an application in respect of pay in lieu of notice within three months from the date of his dismissal and that the application was lodged within a reasonable period thereafter.
12. The applicant made a claim for benefits and the tribunal has to take into account benefits received as a result of the dismissal. The applicant was not in a position to prove the level of benefits received. Accordingly the tribunal finds that the sum of £2,200 is due less any social security benefits received in the notice period i.e. 10 weeks from the 17 January 2001. A formal order for the balance will be made on receipt of a statement from the Social Security Agency of the benefits received in the period 17 January 2001 to 28 March 2001.

Redundancy Payment

13. The applicant is entitled to one weeks pay for each year of continuous employment in which he was aged between the age of 22 and 41 and a half weeks pay for each year of employment when he was below the age of 22. The applicant was aged 19 when he commenced employment on the 21 May 1990. The relevant date under Article 180 of the 1996 Order is 17 January 2001.
14. The applicant's entitlement is therefore calculated as follows

Three weeks @ £115.00 and 7 weeks @ £230

£1,955.00

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

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Date and place of hearing: 11 March 2002, Belfast

Date decision recorded in register and issued to parties: 20 June 2002