Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 479/05

CLAIMANT: Mr Gervin

RESPONDENT: Pedar Hughes

T/a General Cabins and Engineering

DECISION

The decision of the tribunal is that:-

(i) the respondent's representative is allowed to come on record on behalf of the respondent and to take part in the proceedings to apply for an extension of the time appointed for the entering of an appearance;

(ii) the case should not be adjourned;

(iii) there were no grounds for an extension of the time appointed for the entry of an appearance; and

(iv) that the claimant is entitled to and that the respondent do pay to the claimant the sum of £1,970 by way of redundancy payment.

Constitution of Tribunal:

Chairman: Ms Sheils

Appearances:

The claimant appeared and was represented by Mr Conor Byrne, Barrister-at-Law, instructed by Logan and Corry, Solicitors.

The respondent did not appear and was represented by Mr Nick Jones, Barrister-at-Law, instructed by P A Duffy, Solicitors.

The Claim

The claimant claimed in his claim form breach of contract, failure to receive redundancy payment, unlawful deductions from wages and failure to obtain written reasons for his dismissal. The respondent did not submit a response to the claim form. Mr Jones indicated that he had three applications to make to the Tribunal on behalf of the respondent. These applications included requesting leave of the Tribunal to come on record, to enter a late response to the claim and to adjourn the hearing. The claimant's representative resisted these applications.

Mr Jones indicated that he had no instructions as to why neither the respondent nor his solicitors had entered a response to the claim nor had he any instructions as to why the respondent's solicitors had not applied to come on record before the morning of the hearing. Mr Jones indicated that the basis of the adjournment application was that the respondent had a hospital appointment that same day and that the person sent to the Tribunal hearing by the respondent was not in a position to answer any of the issues before the Tribunal nor had he the authority to agree to any possible settlement.

Mr Byrne indicated that the claimant had made his claim within the statutory deadlines, that he had engaged a solicitor to write to the respondent to set out his claim to attempt early resolution of his claim and that such had been ignored by the respondent, that the respondent had had every opportunity to enter a defence, that the respondent had had every opportunity to apply for an adjournment of the case at an earlier date, either on receipt of the notification of the hospital appointment or any time from the receipt of the Notice of Hearing.

Sources of Evidence

The Tribunal heard evidence from the claimant and read his claim form. The Tribunal also considered a letter from the claimant's solicitors to the respondent and a schedule of loss submitted on behalf of the claimant. The Tribunal also heard from both the claimant's and the respondent's representatives on each of the three applications made on behalf of the respondent and considered a hospital appointments letter to the respondent. The Tribunal also considered the file.

Issues

The issues for the Tribunal were as follows:

•    Whether the respondent's representative could come on record at the hearing and be entitled to take part in the proceedings

•    Whether there were grounds on which to justify the extension of time for the entry of an appearance by or on behalf of the respondent

•    Whether the hearing should be adjourned

•    Whether the claimant had received written reasons for his dismissal

•    Whether the claimant had been made redundant

•    Whether the claimant was owed redundancy pay

•    Whether the claimant suffered an unlawful deduction from his wages

•    Whether the claimant was owed outstanding holiday pay

Findings of Fact

The Tribunal considered the evidence and the submissions and found the following facts:

(1) That although the respondent had solicitors acting for him, namely P A Duffy, Solicitors, and that these solicitors had been aware of the case and the hearing date between seven or ten days before the hearing counsel for the respondent had no instructions as to why these solicitors had not applied to come on record sooner.

(2) The claimant's solicitors had sent a letter dated 14^th January 2005 which set out the claimant's case and the respondent had not responded to this letter.

(3) That the respondent had received the claimant's claim form, which was lodged on the 9th March 2005.

(4) That the respondent had received the Notice of Hearing.

(5) That the respondent had instructed solicitors between seven and ten days before the hearing.

(6) That the respondent had a hospital appointment on the morning of the hearing (21 November 2005) and that this hospital appointment notification was dated the 29^th September 2005.

(7) That the claimant had been employed by the respondent as a fitter welder since 16^th January 2001 and that during his employment no issues as to bad or poor conduct or unsuitability had arisen. The claimant earned £350 at the time of his dismissal and that he had no wages slip nor had he had a wages slip during his employment.

(8) That on the claimant's return from his Christmas holidays and on 7^th January 2005 the claimant was approached by the foreman of the respondent's company and was told that he was being paid off. The claimant was advised in this same conversation that the work was slack and that there was no work for him. This was the only reason the claimant was given for his dismissal. The claimant received no other or written reason for his dismissal.

(9) That the claimant's wife contacted the Labour Relations Agency and was advised that the claimant was entitled to 4 weeks notice. When the claimant put this to Mr Hughes he indicated that he had spoken to his accountant and that he only owed the claimant two weeks notice. However the Tribunal found that the claimant's effective date of termination was the 28^th January 2005 and accordingly the claimant was entitled to four weeks' notice.

(10) That the claimant was not offered any alternative employment.

(11) That the claimant was owed two weeks' holiday pay. The claimant did not know how his holiday pay was calculated.

(12) That the claimant was also owed monies in respect of his "lie-in" week.

(13) That the respondent had paid the claimant £1,560 to date but that the rest of the money was still outstanding.

The Law

Under The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004, Schedule 1, Rule 3(4)(a), a respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except-

(a) to apply under Rule 17 for an extension of the time appointed by this rule for entering an appearance

Under Rule 17 of the same legislation the chairman of the Tribunal may extend the time limit within which any act appointed by the rules (which includes the entering of an appearance) may be done.

Under Rule 11 of the same Regulations the Tribunal shall conduct the hearing in such manner as it considers appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.

Under The Employment Rights (Northern Ireland) Order 1996, Article 118, an employee's notice entitlement is set out thus:-

(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for a month or more ---

(a) is not less than one week's notice if his period of continuous employment is less than two years,

(b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years…

Under The Employment Rights (Northern Ireland) Order 1996, Article 170(1), an employer shall pay a redundancy payment to any employee of his if the employee

(a) is dismissed by the employer by reason of redundancy, or

(b) is eligible for a redundancy payment by reason of being laid off or kept on short time

and under the same Order, Article 174(1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy of the dismissal is wholly or mainly attributable to

(b) the fact the requirements of the 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.

Conclusions

•    In accordance with rule 3(4)(a) the respondent's representative took part in the proceedings to apply, under rule 17, for an extension of the time appointed for the entering of an appearance. However there was no evidence or submission or explanation of any kind that the Tribunal could consider and assess whether to extend the time within which the appearance could be entered. In these circumstances an extension to the requisite time limit was refused.

•    In relation to the adjournment application the Tribunal found that the respondent had been made aware of his hospital appointment some weeks before the hearing date and after the Notice of Hearing had been served on him, that the arrangements made to deal with the hearing were insufficient and belated and accordingly the adjournment application was refused.

•    The Tribunal found that the claimant had been dismissed by reason of redundancy and that he is entitled to redundancy pay as calculated below.

•    That the claimant's notice period entitlement was four weeks, his having completed four years employment at the effective date of the termination of his employment

•    Although the claimant was unable to assist the Tribunal as to how his holiday pay was calculated the Tribunal accepted the claimant's evidence that he was owed two

weeks' holiday pay. The Tribunal was unable to make any other assessment of holiday pay.

•    That the claimant had completed a "lie-in" week at the beginning of his employment and that this money was therefore due to the claimant.

•    Accordingly the Tribunal finds that the total amount to which the claimant is entitled is as follows -

Redundancy pay, £270 (maximum week amount) x 4 = £1080

Pay in lieu of Notice, £350 (weekly wage) x 4 = £1400

Holiday pay, £350 (weekly wage) x 2 = £ 700

Lie-in week, £350 (weekly wage) = £ 350

Total = £3,530

•    However the total amount owed to the claimant by the respondent is this figure less the amount of money the respondent has already paid to the claimant, namely £1,560. Accordingly the respondent owes to the claimant £1,970 and the Tribunal hereby orders him to pay this to the claimant.

•    No question of recoupment arises.

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

Chairman:

Date and place of hearing: 21 November 2005, Belfast

Date decision recorded in register and issued to parties: