Industrial Tribunals Northern Ireland Decisions

 


McKenna v King (Redundancy Pay) [2004] NIIT 9583_03 (12 November 2004)

THE INDUSTRIAL TRIBUNALS

CASE REF: 9583/03

APPLICANT: Vanda McKenna

RESPONDENT: Pauline King

DECISION

The unanimous decision of the tribunal is that, because of her dismissal by the respondent, the applicant became entitled to be paid a redundancy payment of £2015.03.

Appearances:

The applicant was represented by Mr Mark Reid of Law Centre (NI).

The respondent was not present and was not represented.

REASONS

1. We announced our decision at the end of the hearing. We now confirm that decision in writing. These reasons are given in summary form.
2. The respondent did not enter an appearance to the proceedings. Neither the respondent, nor any person acting on her behalf, made any representations in writing. The respondent was not present at the hearing. No person was present on behalf of the respondent at the hearing. In the circumstances, the tribunal decided to dispose of the application. We received oral testimony from the applicant. The applicant also provided us with certain documentation.
3. On the basis of the evidence presented to us, we were satisfied after the following facts:-

(i) The applicant was employed in Brookwood Residential Home, Fintona, Co Tyrone, from 10 October 1993 until 27 June 2003 (a total period of 9 years plus some months).

(ii) Originally, the applicant's employer was one Marie Scott. However, during 2000 the undertaking known as Brookwood Residential Home was transferred from Marie Scott to Pauline King.

(iii) While the ownership of the home changed, there were no other material changes. The home still had the same staff; the same residents resided in the home; the same work took place in the same premises; the activities carried on before and after the transfer were substantially the same. The activities of the undertaking were not suspended at any time.

(iv) The undertaking was closed down with effect from 27 June 2003. That was the date on which the last residents in the home were transferred to another residential home. Because of the fact that the undertaking ceased operations, the applicant was dismissed.

(v) After her employment had ended, the applicant spoke to the respondent and asked her if she would "see to my redundancy"; the respondent then told her that she would see to it in a couple of weeks. No figures were discussed at that time.

(vi) On 19 November an envelope from the respondent was hand delivered through the applicant's front door. Inside the envelope was a cheque for £1455.30. There was no covering letter with the cheque. However, we infer that this cheque was being paid in purported fulfilment of the promise which the respondent had made (as already referred to above).

(vii) The applicant was aged 55 when her employment ended.

(viii) During the weeks which are relevant for the purpose of calculating entitlement to redundancy payment, the applicant was earning £149.26 gross per week.

4. We are satisfied that, when Pauline King took over the undertaking from Marie Scott, there was a 'relevant transfer' within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981, so the applicant's continuity of employment was preserved. Accordingly, for redundancy purposes, the applicant is entitled to have any redundancy payment calculated on the basis of continuity of employment from October 1993 until June 2003.
5. We are satisfied that the applicant was dismissed because of "redundancy" within the meaning of Article 170 of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order'), because she was dismissed because her employer had ceased or intended to cease to carry on the business for the purposes of which the applicant was employed by her; or the respondent had ceased or intended to cease to carry on that business in the place where the applicant was so employed. (See Article 174(1)(a) of the 1996 Order).
6. The applicant was employed for a period in excess of 9 years. At all material times, she was above the age of 41. Accordingly, she was entitled to 13½ full weeks pay by way of redundancy payment. (See Article 197(2) of the 1996 Order).
7. We note that the respondent has already paid the applicant the sum of £1455.30 in respect of her redundancy.
8. Mr Reid made it clear that the applicant considers that she was also entitled to pay in lieu of notice. However, he also made it clear that this claim was being pursued in separate proceedings, which will probably be commenced in the County Court.
9. This is a relevant award for the purposes of the Industrial Tribunals (Interest) Regulations 1981.

Chairman:

Date and place of hearing: 12 November 2004, Omagh

Date decision recorded in register and issued to parties: