Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 358/05

CLAIMANT: James McCrory

RESPONDENT: Kenneth Fryers and Stewart Worthington

t/a D & S Contracts

DECISION

The decision of the tribunal (Chairman sitting alone) is that the claimant was continuously employed by the respondent from 4 June 2001 until 4 February 2005 and the tribunal orders the respondent to pay to the claimant the sum of £270.00 being the balance of a redundancy payment due to the claimant.

The title of the proceedings is amended.

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented Mr P. Harland, of the respondent company.

The issues of the tribunal were:-

Was the claimant continuously employed by the respondent from 4 June 2001 until 4 February 2005 and was the claimant paid the correct amount of redundancy pay?

The tribunal considered the originating application, notice of appearance, documentation furnished by the parties and the oral evidence of the claimant and Mr Harland and Mr Worthington on behalf of the respondent.

FINDINGS OF FACT:

1. The claimant commenced employment with the respondent as a painter and decorator on 4 June 2001. The respondent, a firm of building contractors obtained work through tendering for different building jobs. The amount of work would fluctuate and the business had its ups and downs, depending on whether its contract tenders were successful. From its inception in September 1996, the respondent employed between 13 and 25 people.
2. There was a downturn of business and on 23 May 2002 the respondent wrote to the claimant terminating his contract of employment with effect from 31 May 2002 due to a shortage of work and for no other reason. The respondent expressed the wish that this shortage of work would be temporary and asked the claimant to leave a contact number with his foreman so that he could be contacted if the workload improved. Four other employees were written to in similar terms and were paid off at the same time as the claimant.
3. Shortly after 31 May 2002 the respondent received an order for work and re-employed the claimant under a contract of employment from 17 June 2002. The parties agreed that claimant's contract provided where he was temporarily laid off for any reason beyond the control of the respondent and was subsequently restarted, "your contract of employment shall for contractual purposes, be deemed to have been continuous throughout the period of the lay-off".
4. On 14 January 2005, the claimant was given notice of redundancy. On this date the claimant was aged 39 years. His gross weekly salary was £280.00 per week. The respondent calculated the claimant's entitlement to redundancy pay on the basis that he was continuously employed from the later date of 17 June 2002 and paid him 2 week's of the statutory maximum of £270.00. The respondent argued that the claimant had not been temporarily laid off in May 2002 and that there had been a break in the claimant's continuity of employment. The claimant lodged a claim against the respondent that he was entitled to receive one further week's pay on the basis that he had been continuously employed by the respondent from 4 June 2001.

DECISION

5. The tribunal accepts that on 31 May 2002 the claimant was dismissed due to a shortage of work. This shortage of work was temporary. The tribunal took into account that the claimant was re-employed by the respondent within 3 weeks of being laid off. Between 31 May 2002 and 17 June 2002 the claimant was not employed by the respondent under a contract of employment.
6. The tribunal considered Article 8(3)(c) of the Employment Rights (Northern Ireland) Order 1996 which provides that in computing an employee's period of employment, any week during the whole or part of which an employee is absent from work on account of a temporary cessation of work is to be counted. The tribunal is satisfied that there was a temporary cessation of work for the claimant leading to his

absence from work from 31 May until 17 June 2002 and that he would have been at work but for the fact that the respondent had no work for him during that period. Therefore the tribunal decides that the claimant was continuously employed by the respondent from 4 June 2001 until 4 February 2005 and therefore had 3 full year's service for the purposes of calculating his redundancy payment. The respondent is ordered to pay to the claimant one further week's wages of £270.00 being the balance due to the claimant.

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

Chairman:

Date and place of hearing: 27 May 2005, Belfast.

Date decision recorded in register and issued to parties: