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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Patterson v Foster [2005] NIIT 2233_04 (12 October 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2005/2233_04.html
Cite as: [2005] NIIT 2233_4, [2005] NIIT 2233_04
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- Reasons are given in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter. The tribunal heard oral evidence from the claimant and also evidence from fellow former employees of the respondent, Mr Getty and Mr McNally (both of whom were also bringing similar claims), and the tribunal further examined documentation placed before the tribunal in evidence by or on behalf of the claimant.
- In his Originating Application, the claimant complained of "Lying week's pay. Holiday pay. Redundancy pay". In a Notice of Appearance, the respondent did not expressly deny that the claimant had been dismissed however he claimed that the claimant was what he described as a "non contract" employee. The respondent denied that the claimant's stated dates of employment and rate of pay were correct, and suggested that the claimant had been paid off not by him but by another party, J D McGeown. The respondent also enclosed documentation which he stated consisted of gross wage records applicable to the claimant. The respondent, further, stated reasons for resisting the claim on the part of the claimant.
- In the light of the nature and content of the claimant's complaint and the response thereto and the evidence before the tribunal, the tribunal had to determine the claimant's complaint as set forth in his Originating Application, and as further detailed in the course of hearing before the tribunal.
- On foot of the oral and documentary evidence adduced before it, the tribunal made the findings of fact set out below.
- In respect of the applicable law, the claimant complained in respect of redundancy payment. A redundancy is defined in Article 174 of the Employment Rights (Northern Ireland) Order 1996 which Article states:
- The claimant also complained to the tribunal of non-payment of wages due upon termination of employment. Article 45(3) of the Employment Rights (Northern Ireland) Order 1996 provides that any deficiency in wages due is to be treated as a deduction made by the employer. Under Article 55(1)(a) of the Employment Rights (Northern Ireland) Order 1996, the tribunal may find such a complaint well-founded and, on foot of Article 56 of the said Order, may order the respondent to pay to the claimant the amount of any deduction made in contravention of Article 45 of the said Order.
- Having applied the relevant principles of law contained in the foregoing statutory provisions to the findings of fact made by the tribunal, the tribunal finds that the claimant was dismissed by the respondent with effect from 30 July 2004 and the reason for the dismissal was redundancy, in the context of the respondent ceasing business. Accordingly, the claimant would be entitled to a redundancy payment under Article 174 of the Employment Rights (Northern Ireland) Order 1996. Furthermore, the tribunal is satisfied that the claimant was entitled to be paid two weeks' pay in lieu of outstanding holiday leave at the effective date of termination and was also entitled to one week's pay in respect of what was the custom and practice in the respondent's employment, that is to say the working of a lying week without pay with that week to be paid at the end of the employment.
- Accordingly, the tribunal finds the claimant's complaints to be well-founded and calculates what is due to the claimant as follows:-
CASE REF: 2233/04
CLAIMANT: Gareth John Patterson
RESPONDENT: Hudson Foster
The unanimous decision of the tribunal is that the tribunal finds the claimant's complaint well-founded and Orders the respondent to pay to the claimant the total sum of £2,460.00 in respect of redundancy pay and unpaid wages.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Panel Members: Mr S Craig
Mr R Lowden
Appearances:
The claimant appeared in person and represented himself.
The respondent did not attend and was not represented.
REASONS
THE ISSUES
THE TRIBUNAL'S FINDINGS
(a) The claimant first began work with the respondent in or about September of 1995. The claimant commenced as an apprentice electrician under the modern apprenticeship scheme. The claimant was seeking to attain a National Vocation Qualification, Level 3, under the Jobskills Programme sponsored by the Training & Employment Agency, that being under the auspices of the Department of Economic Development.
(b) The claimant was to remain under the apprenticeship scheme until he qualified as an electrician, which he did in August 2004. There were incremental annual wage increases in respect of the wage rate paid by the respondent to the claimant which, by the date employment of the claimant by the respondent came to an end, were linked to wage rates set by the "JIB Determination" (for the relevant year) of the Joint Industry Board for the Electrical Contracting Industry.
(c) There were no written terms and conditions of employment seen by the tribunal and nothing save for oral evidence and some wages documentation as to the precise contractual terms applicable at the time when the claimant's employment came to an end. The tribunal accepted the claimant's evidence that it was custom and practice for employees of the respondent to work a 'lying week' either (and normally) at the start of employment, or at some other point in employment, and for payment of wages for that week to be deferred until the end of the employment. The tribunal also accepted that the claimant's employment attracted an agreed twenty-nine days' leave with pay annually.
(d) The claimant's employment with the respondent continued up to and throughout the months of June and July 2004 and was then terminated by the respondent with effect from 30 July 2004. The firm to which the claimant subsequently moved as an employee at the start of August 2004, J D McGeowns, had apparently arranged as an agent on behalf of the respondent to pay the claimant's wages for the month of July 2004, but not any holiday pay. However the tribunal is certain that the claimant was not employed by McGeowns in July, but by the respondent. Thus 30 July 2004 is the effective date of termination of the claimant's employment by the respondent. The tribunal is satisfied that the dismissal occurred in the context of the respondent ceasing business, so the tribunal understands, for financial reasons.
(e) The claimant's date of birth is 11 July 1978 and at the effective date of termination of the employment he had served 8 years' continuous employment at which time he was aged twenty-six years.
(f) The tribunal inspected various documents in an endeavour to determine gross and net pay in respect of the claimant's employment by the respondent. There was inconsistent evidence available from the documentation before the tribunal. Looking at all of the evidence and trying to reconcile it as far as possible, the tribunal found that at the material time, the effective date of termination, it was only necessary to determine that the claimant's gross pay was in excess of £270.00 per week, and his net pay was £280.00 per week.
(g) At the effective date of termination the claimant was owed two weeks' pay in respect of untaken holiday leave. He was also owed one week's pay in respect of the lying week, worked but unpaid.
THE APPLICABLE LAW
174-(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reasons of redundancy if the 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
Any redundancy payment award is subject to calculation based on a statutory maximum figure for a week's pay. In regard to this case, that is a figure of £270.00.
THE TRIBUNAL'S DETERMINATION
Redundancy pay - 6 x £270 = £1,620.00
Two weeks' pay in respect of unpaid holiday pay = £ 560.00
One week's pay in respect of the lying week = £ 280.00
Total = £2,460.00
The tribunal Orders the respondent to pay to the claimant the total sum of £2,460.00 in respect of redundancy pay and unpaid wages.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 October 2005 , Belfast & 11thOctober
Date decision recorded in register and issued to parties: