Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2174/04

CLAIMANT: Margaret George Brown

RESPONDENTS: 1. John Robertson (Belfast) Ltd (In Liquidation)

2. Department for Employment & Learning

DECISION

The unanimous decision of the tribunal is that the claimant is entitled to a redundancy payment of £715.00.

Appearances:

The claimant appeared in person.

The first respondent did not attend and was not represented.

The second respondent was represented by Ms K. Dobbin of Department for Employment & Learning.

Sources of Evidence

1. The tribunal heard evidence from the claimant. The tribunal also received the claimant's application to the National Insurance Fund and letters from the second respondent of 5 July 2004 and 9 March 2005 and RD18 Statement of Account.

The Claim and Defence

2. The claimant claimed a redundancy payment. The first respondent accepted that the claimant became redundant on 31 October 2003. The second respondent denied the claimant's claim because it was out of time.

The Issues

3. (a) Is the claimant entitled to a redundancy payment from the second

respondent?

Findings of Fact

4. (a) The first respondent employed the claimant from 31 August 1995 to 31

October 2003 as a book-keeper.

(b) The claimant was born on 15 February 1946. She earned per week £65.00 gross £46.80 net.

(c) The first respondent ceased trading on 31 October 2003 and went into a creditors' voluntary liquidation on 26 April 2004.

(d) The claimant did not believe that she was entitled to a redundancy payment because she only worked seven hours per week for the last year of her employment.

(e) In May 2004 the first respondent contacted the claimant in relation to holiday pay and inquired had the claimant made a claim for a redundancy payment.

(f) A few days later the claimant received notification from the liquidators inquiring about her claim for a redundancy payment. On contacting the liquidators she was advised to make a claim to the second respondent.

(g) The claimant sent to the second respondent for an application form, filled it in on10 June 2004 but did not submit it to 26 June 2004 until she had ascertained her start date in employment.

(h) The second respondent informed the claimant by phone and by letter of 5 July 2004 that her application was rejected as it was submitted over six months after the date of her redundancy and advising her of her right to make a claim to an industrial tribunal.

(i) The claimant made the instant claim on 26 July 2004.

(j) The claimant did not take any advice as prior to May 2004 she was convinced that she was not entitled to a redundancy payment.

The Law

5. (a) An employee does not have the right to a redundancy payment unless within

six months from the date of redundancy the payment of redundancy has been agreed or paid or the employee has made a written claim for a redundancy payment to his employer or the question of a redundancy payment or its amount has been referred to an industrial tribunal or a claim relating to his dismissal has been made to an industrial tribunal.

(b) If any of the steps at 5(a) have not been taken within six months an employee may still get a redundancy payment if within the following six months the employee has made a written claim for a redundancy payment to his employer or the question of a redundancy payment or its amount has been referred to an industrial tribunal or a claim relating to his dismissal has been made to an industrial tribunal and it appears to the tribunal that it is just and equitable that the employee should receive such a payment.

To determine whether it is just and equitable that the employee should receive a redundancy payment the tribunal must have regard to the reason why none of the steps at 5(b) above have been taken within the first six months and all the other relevant circumstances.

Application of the Law and Findings of Fact to the Issues

6. (a) The claimant does not satisfy the requirements of Article 199(1) of the

Employment Rights (Northern Ireland) Order 1996. Within six months of 31 October 2003:-

(i) the payment of redundancy had not been agreed nor paid, nor

(ii) had she made a claim in writing to the first respondent for payment, nor

(iii) had the question of her right to a payment or its amount been referred to an industrial tribunal, nor

(iv) had the claimant made a complaint relating to her dismissal under Article 145 of the Employment Rights (Northern Ireland) Order 1996.

(b) The claimant has within the following six months referred to an industrial tribunal the question as to her right to and the amount of a redundancy payment.

(c) It appears to the tribunal to be just and equitable that she should receive a redundancy payment. In so concluding the tribunal took into account:-

(i) the claimant's genuine but erroneous understanding of her rights, and

(ii) that given her understanding of her rights that there was not any logical reason why she should pursue the matter further, and

(iii) when her understanding of her rights were queried she made the requisite inquiries and took the requisite steps diligently and without undue delay.

(d) The claimant is entitled to a redundancy payment of £715.00 (£65.00 x 11).

Interest

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

Chairman:

Date and place of hearing: 26 April 2005, Belfast.

Date decision recorded in register and issued to parties: