Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 272/05

302/05

342/05

CLAIMANTS: 1. Paul Fisher

2. Helen Craig

3. Andrew John McIntyre

RESPONDENTS: 1. Shop Electric Ltd (in administration) 2. Department for Employment & Learning,

Redundancy Payments Service

DECISION ON A PRE-HEARING REVIEW

The claims are dismissed because they were presented outside the statutory time limits for a redundancy payment.

Constitution of Tribunal:

Chairman: Mr M G O'Brien

Appearances:

The claimants did not appear and were not represented.

The first respondent was represented by Mr P Martin, Arthur Cox & Co., Solicitors.

The second respondent was represented by Mrs Dobbin of the Department.

The Issue to be Decided

1. The claims were listed before the Tribunal to decide the following issue in each case;

Whether the claim is lodged outside the statutory time limits for a redundancy payment.

Sources of Evidence

2. No evidence was heard in this Pre-Hearing Review. The first and second respondents each made submissions, and referred to agreed documentation.

Findings of Fact

3. By their claims, which were given the reference numbers set out in paragraph 6 below, the claimants asserted entitlement to a protective award pursuant to Article 217(1) of the Employment Rights (NI) Order 1996 ["the 1996 Order"]. That is, each claimant asserted entitlement to 90 days pay in lieu of notice.
4. Mr Fisher was employed from August 2001 until 24 November 2003. The relevant date for Mr Fisher is 24 November 2003. Ms Craig was employed from 31 October 1998 until 4 November. Mr McIntyre was employed from September 2002 until 4 November 2003. Pursuant to Article 180 of the 1996 Order, "the relevant date" means the date when the contract of employment came to an end. The relevant date for Ms Craig and Mr McIntyre is 4 November 2004. Mr Fisher and Ms Craig each asserted that the matter leading to this alleged entitlement occurred on 31 October 2003. Mr McIntyre asserted at section 12 of his claim form that the matter of which he was complaining happened "2 years ago". None of the claimants are members of a trade union.
5. From the documentation put before the Tribunal, it finds the second respondent paid the following amounts to the claimants;
Paul Fisher

Reason Paid Date Paid Nett Amount Paid

Statutory Redundancy 16.1.2004 £520.00

Compensation for insolvent 5.2.2004 £156.31

employer's 5 February 2004

Failure to give statutory notice

Holiday Pay 20.2.2004 £96.02

Helen Craig

Reason Paid Date Paid Nett Amount Paid

Statutory Redundancy 17.12.2003 £759.08

Compensation for insolvent 11.2.2004 £ 79.17

employer's 5 February 2004

Failure to give statutory notice

Arrears of pay 20.2.2004 £176.10

Andrew McIntyre

Reason Paid Date Paid Nett Amount Paid

Statutory Redundancy No entitlement

Compensation for insolvent 30.1.2004 £255.04

employer's 5 February 2004

Failure to give statutory notice

Arrears of pay 5.2.2004 £ 4.93

6. The claims were presented to the Industrial Tribunal on the following dates;

Paul Fisher Tribunal Ref No: 272/05 Presented on 31 January 2005

Helen Craig Tribunal Ref No: 302/05 Presented on 7 February 2005

Andrew McIntyre Tribunal Ref No: 342/05 Presented on 14 February 2005

Applicable Law

7. The applicable law in respect of determining the "relevant date" is to be found in Article 180 of the 1996 Order.
8. Article 190 of the 1996 Order provides an employee does not have any right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending on the relevant date.
9. Article 199 of the 1996 Order provides for the time within which a claim for a redundancy payment must be made. Article 199 provides;

199 (1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months

beginning with the relevant date –

(a) the payment has been agreed and paid,

(b) the employee has made a claim for the payment by notice in writing given by the employer,

(c) a question as to the employee's right to, or the amount of, the payment has been referred to an industrial tribunal, or

(d) a complaint relating to his dismissal has been presented by the employee under Article 145.

(2) An employee is not deprived of his right to a redundancy

payment by paragraph (1) if, during the period of six months immediately following the period mentioned in that paragraph, the employee –

(a) makes a claim for the payment by notice in writing given to the employer,

(b) refers to an industrial tribunal a question as to his right to, or the amount of, the payment, or

(c) presents a complaint relating to his dismissal under Article 145,

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

(3) In determining under paragraph (2) whether it is just and equitable that an employee should receive a redundancy payment an industrial tribunal shall have regard to-

(a) the reason shown by the employee for his failure to take any such step as is referred to in paragraph (2) within the period mentioned in paragraph (1), and

(b) all the other relevant circumstances.

The Decision of the Tribunal

10. Mr Fisher was paid a nett statutory redundancy payment of £520.00 on 16 January 2004. Mr Fisher's relevant date is 24 November 2003. With reference to the question to be determined in this pre-hearing review, pursuant to Article 199(2) of the 1996 Order, any claim from Mr Fisher for a redundancy payment should have been presented to the tribunal not later than 24 May 2004. The Tribunal found his claim was presented on 31 January 2005. Accordingly, Mr Fisher's claim for a redundancy payment is out of time.
11. Ms Craig was paid a nett statutory redundancy payment of £759.08 on 17 December 2003. Ms Craig's relevant date is 4 November 2003. With reference to the question to be determined in this pre-hearing review, pursuant to Article 199(2) of the 1996 Order, any claim from Ms Craig for a redundancy payment should have been presented to the tribunal not later than 4 May 2004. The Tribunal found Ms Craig's claim was presented on 7 February 2005. Accordingly, Ms Craig's claim for a redundancy payment is out of time.
12. The Tribunal is satisfied that Andrew McIntyre had less than two years continuous service with the first respondent on the relevant date applicable to him, 4 November 2003. Therefore, he has no entitlement to a redundancy payment, pursuant to Article 190 of the 1996 Order. The pre-hearing review question at paragraph 1 above is, therefore, inapplicable to Mr McIntyre.
13. Insofar as these claims each contain a question relating to a redundancy payment, and whether each such claim was presented outside the statutory time limits for claiming a redundancy payment, the determination of the Tribunal is that each of the claims were manifestly presented outside the time limit, pursuant to Article 199 of the 1996 Order. The Tribunal has had regard to all the relevant circumstances, as set out in the submissions made to it. The claimants have not discharged their burden of proof, or made any further argument before the Tribunal that there are other relevant circumstances that would persuade the Tribunal to extend the time for presentation of late claims, pursuant to Article 199(3) of the 1996 Order.
14. Accordingly, the Tribunal determines that Mr Fisher's and Ms Craig's claims were presented outside the statutory time limits for presenting a redundancy payment, pursuant to Article 199 of the 1996 Order. Moreover, the Tribunal determines that Mr McIntyre has no entitlement to such a redundancy payment, and that his claim was also presented outside the statutory time limit for presenting a redundancy payment.
15. The claimants have each presented a claim for a protective award. The time limit for presenting such a claim is to be found in Article 217(5). For the benefit of the parties, the Tribunal hereunder sets out the provisions of Article 217(5) of the 1996 Order, which provides;

217 (5) An industrial tribunal shall not consider a complaint under this

Article unless it is presented to the tribunal –

(a) before the date on which the last of the dismissals to which the

complaint relates takes effect; or

(b) during the period of three months beginning with that date; or

(c) within such further period as the tribunal considers reasonable in a

case where it is satisfied that it was not reasonably practicable for the complaint to be presented during that period of three months.

16. Insofar as these claims contain complaints in respect of a protective award for each of the claimants, these claims are still live and should proceed to a pre-hearing review to consider and determine the following issue;

"Whether the Tribunal has jurisdiction to consider and determine these complaints in view of the provisions of Article 217(5) of the Employment Rights (NI) Order 1996".

17. No further or other Order was sought, and no further direction is made.

Chairman:

Date and Place of Hearing: 23 August 2005, Belfast

Date decision recorded in register and issued to parties: