Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 302/04

CLAIMANT: Paul Duggan

RESPONDENTS: 1. Roulston & McLaughlin Ltd (in liquidation)

2. Department of Employment & Learning

3. Corlin Developments Ltd

4. Eugene McLaughlin

DECISION

The claim for a redundancy payment and for pay in lieu of notice is dismissed. The Claimant is ordered to pay the costs of the third and fourth Respondents in the amount of £75.

Appearances:

The claimant did not appear and was not represented.

The respondents were represented by:

1. Roulston & McLaughlin Ltd (in liquidation) no representation.

2. Department of Employment & Learning: Mrs Baird.

3. Corlin Developments Ltd: Ms O O'Neill, Napier & Sons, Solicitors.

4. Eugene McLaughlin: Ms O O'Neill, Napier & Sons, Solicitors.

The Issues to be Decided

1. By his claim, presented on 3 February 2004, the claimant indicated that he was represented by Chris McCrea of Castlederg Welfare Rights. The claimant indicated he had been employed from March 2000 to 21 December 2003, and that he had received no proper notice and no redundancy payment. By its response, presented on 4 March 2005, the third respondent denied that it employed the claimant at all and thus resisted the claim. No other Notice of Appearance/ response was presented.
2. At an earlier hearing on 31 May 2005 (record of proceedings attached hereto), it was contended by Counsel for the third respondent that the claimant's employment started on 25 May 2002 and ended on 31 December 2003. Counsel therefore contended the claimant could not satisfy the provisions of Article 190 of the Employment Rights (NI) Order 1996 ("the 1996 Order"), and thus was not entitled to a redundancy payment. On my direction, the record of proceedings was forwarded to both the claimant and Mr McCrea, together with a Notice of Hearing promulgated on 30 June 2005. At paragraph 8(d) of the record of proceedings, I specifically drew to the attention of the claimant and his representative the tribunal's powers in respect of costs.
3. Thus, the issues to be decided are:-

(i) Does the claimant satisfy the provisions of Article 190 of the 1996 Order?

(ii) If so, is he entitled to a redundancy payment?

(iii) Did the claimant receive notice, or pay in lieu thereof?

(iv) The issue of costs, as notified to the parties on 30 June 2005.

Sources of Evidence

4. The claimant did not appear before the Tribunal on 22 July, and was not represented. The claimant submitted no further written representation or documentation, other than his claim.
5. The first respondent did not appear and was not represented. It is a firm in liquidation.
6. Mrs Baird and Ms O'Neill referred to agreed documentation for the second to fourth respondents.

Findings of Fact

7. The claimant began working for the first respondent in March 2000 and this employment terminated on 12 February 2002. This is corroborated by a P45 form which was adduced to the tribunal. The claimant then re-applied to the first respondent for employment by way of an application form dated 25 May 2002, and re-commenced employment on that date. The claimant's employment ended on 31 December 2003.
8. On 8 March 2005, the claimant presented an application form to seek a redundancy payment from the statutory fund regulated by the second Respondent. On this form, the claimant indicated he had not claimed benefit since his redundancy. The claimant was required to mitigate his loss. The claimant was paid £190.59 by the second respondent on 10 June 2005, being the net amount calculated he was owed for pay in lieu of notice. The second respondent did not pay the claimant any amount by way of a redundancy payment because he had less than two years continuous employment with the first respondent, and thus could not satisfy the provisions of Article 190 of the 1996 Order.
9. Ms O'Neill wrote to the claimant's representative (Mr C McCrea of Castlederg Welfare Rights) on 26 May 2005 to advise of the hearing on 31 May 2005, and putting him on notice that the issue was the claimant's length of service, pursuant to Article 190 of the 1996 Order. Thus it was necessary to convene the hearing on 22 July 2005. Neither the tribunal nor the respondents' representatives had any communication from either the claimant or Mr McCrea since 30 June 2005, necessitating a total of £75 costs for the third and fourth respondents.
10. By the Notice of Hearing dated and issued on 30 June 2005, the claimant was notified of the tribunal's powers in respect of costs. Neither the claimant nor his representative has appeared before the tribunal to prosecute the claim today and neither have given any reason whatsoever as to this failure to attend or make further submissions. Mrs Baird sought no order for costs. Ms O'Neill sought the third and fourth respondents' costs of £75 for the appearance.

Applicable Law

11. The applicable law in respect of the claims made out by the claimant is to be found in Articles 118(3) and Article 190 of the 1996 Order. The applicable law in respect of the third and fourth respondents' costs is provided by Rules 40 & 41 of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2005.

The Decision of the Tribunal

12. I have considered the claim presented on 3 February 2004. I am satisfied that the claimant was not employed for a continuous period of more than two years. The second period of employment ran from 25 May 2002 until 31 December 2003. Therefore, the claimant cannot satisfy the provisions of Article 190 of the 1996 Order. Thus, he is not entitled to a redundancy payment. This answers the first two issues at paragraph 3 above.
13. Turning to the third issue at paragraph 3 above, I am satisfied the claimant received his net entitlement to pay in lieu of notice from the second respondent on 10 June 2005, pursuant to Article 118(3) of the 1996 Order.
14. Since there is no other justicable claim before the tribunal, accordingly I hereby dismiss the claim, pursuant to Rule 10(2) (l) of Schedule 1 to the 2005 Rules.
15. On the issue paragraph 3(iv) above, the failure by the claimant from 30 June 2005 to make any appearance to further his claim, to make any written or oral representations (either personally or by a representative), or to notify the respondents' representatives of the reason for his non-appearance or of his intentions in respect of today's hearing, is unreasonable conduct of these proceedings, contrary to Rule 40(3) of Schedule 1 of the 2005 Rules. Pursuant to Rule 40(2), the Tribunal hereby makes an Order for the costs of the third and fourth respondents for £75.00.
16. No further or other Order was sought, and no further direction is made.

Chairman:

Date and place of hearing: 22 July 2005, Belfast

Date decision recorded in register and issued to parties: