Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1223/06

CLAIMANT: James Cahoon McMeekin

RESPONDENTS: 1. M P Insulation

2. Department for Employment & Learning

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal does not have jurisdiction to entertain the claimant's complaints in view of the time limits set out in Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, Article 55 of the Employment Rights (Northern Ireland) Order 1996, Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 and that the employee does not have a right to a redundancy payment in view of the time limits set in Article 199 of the Employment Rights (Northern Ireland) Order 1996. The claimant's claims for notice, holiday and redundancy payments are therefore dismissed.

Constitution of Tribunal:

Chairman (Sitting Alone): Ms Bell

Appearances:

The claimant appeared in person.

The first-named respondent did not appear, the second-named respondent was represented by Ms Dobbin of the Department of Employment and Learning.

ISSUES

1. The issues for the tribunal to decide were as follows:-

(i) Whether the tribunal has jurisdiction to entertain the claimant's claim in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limit for presenting a claim.

(ii) Whether the tribunal has jurisdiction to entertain the claimant's complaint in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 in relation to the time limit for presenting a claim.

(iii) Whether the tribunal has jurisdiction to entertain the claimant's complaint in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 in relation to the time limit for presenting a complaint.

(iv) Whether the claimant is entitled to a redundancy payment in view of the time limits set out in Article 199 of the Employment Rights (Northern Ireland) Order 1996.

MATTERS CONSIDERED

2. The tribunal heard oral evidence from the claimant, submissions from the second-named respondent and considered documents and correspondence produced by the second-named respondent.

FACTS

3. The claimant was employed by the first named respondent as a sales representative and installer of cavity wall insulation from June 1992 until he and other employees were laid off on 11 November 2005.The first named respondent was left with only a junior Director, Mr Atkins and a Secretary, Mrs McCullough who continued to run the company for a number of months, gathering in monies owed to it until the company eventually went into compulsory liquidation on 27 April 2006.
4. The claimant received two week's pay from the first named respondent on 11 November 2005. The claimant believes one of the week's pay received may have been for a week worked in lieu.
5. The claimant commenced his own business in cavity wall insulation in November 2005 following being laid off.
6. The claimant did not seek any professional or legal advice after being laid off in respect of his entitlement to a redundancy payment.
7. In or around January 2006 the claimant called to leave a letter at the home of Mr Berry a former director of the first named respondent seeking a redundancy payment but was informed that Mr Berry no longer lived there. The claimant left the letter on the chance Mr Berry might collect it but was aware that it might never be received.
8. The claimant was aware that the first named respondent company still existed after he was laid off but chose not to submit a claim to it for notice, holiday, or redundancy pay.
9. In or around the end of January or beginning of February 2006 the claimant spoke to another former employee of the company who informed him that he needed to submit a claim form to get a redundancy payment and that he could obtain the necessary form from the job centre.
10. On reading documentation obtained from the job centre the claimant became aware that there was a six month time limit for submitting a redundancy payment claim.
11. On 29 May 2006 the claimant completed and forwarded an RP1 claim for payment from the national insurance fund to the Department of Employment and Learning seeking a redundancy payment.
12. The Department sent the claimant a letter on 22 August 2006 rejecting his application for a redundancy payment on the following two counts:-

(i) Mr Barry Atkins a former Director of the company had stated the claimant had left the company of his own accord and had therefore forfeited his entitlement to a redundancy payment.

(ii) The claimant last worked on 11 November 2005 and the Department did not receive the claimant's claim until 2 June 2006 and was outside the time limit for making a claim.

13. The claimant completed an application to the Industrial Tribunal on 15 September 2006 claiming unpaid redundancy pay, pay in lieu of notice and unpaid holiday pay for July and Christmas 2005.
14. On his own evidence the claimant received holiday pay for July 2005 and was no longer employed by the first named respondent by Christmas 2005.

THE RELEVANT LAW

15. Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) Order 1994 provides:-

An industrial tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented –

(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or

(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which is terminated, or

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.

16. Article 55 of the Employment Rights (Northern Ireland) Order 1996 provides that a worker may complain to a tribunal in respect of unlawful deduction of wages. Article 55(2) states that a tribunal shall not consider such a complaint unless it is presented before the end of the period of three months beginning with the date of payment of wages in which the deduction was made or the date when payment was received. However, under Article 55(4) where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
17. Under the Working Time Regulations (Northern Ireland) 1998 Article 30(2) an industrial tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the date on which it is alleged the payment should have been made.
18. Article 199 (1) of the Employment Rights (Northern Ireland) Order 1996 provides:-

(i) 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) payment has been agreed and paid,

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

19. Article 199(2) states -

(i) an employee is not deprived of his right to a redundancy payment at paragraph at (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.

20. Article 199(3) provides, 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 referred to in paragraph (2) within the period mentioned in paragraph (1), and

(b) all other relevant circumstances.

APPLYING LAW TO THE FACTS

21. The claimant in the course of the hearing gave evidence that he went to the job centre and obtained a claim form for a redundancy payment which was around 30 to 40 pages long which he filled in and sent to the address on the form by ordinary post in or around February 2006, he thought this form was called a "T1" but was most confused in his recollection and his evidence and could not confirm whether it was either an RP1 which had been sent to the second named respondent or an IT1 sent to the Office of Industrial Tribunals, he gave evidence that he did not receive any assistance in completing the form, did not show it to anyone, or keep a copy of it. The claimant stated that he was ignorant to the steps to be taken and the applicable time limits and did not take any steps to seek professional or legal advice. The claimant's complaint for pay in lieu of notice should have been received by 11 February 2006, taking the last day of work of the claimant and effective date of termination as 11 November 2005 or, by at the very latest, 25 February 2006 if the claimant's effective date of termination were to be taken as two weeks from 11 November 2005 allowing for two weeks pay received then as notice pay. There is no evidence before the tribunal of a complaint for pay in lieu of notice having properly been made by the claimant within the prescribed period.
22. The claimant's claim for unpaid holiday pay under Article 55 of the Employment Rights (Northern Ireland) Order 1996 if construed at best as a series of deductions for which payment of wages should have properly have been received by January 2006 the claimant's claim should have been submitted at the very latest by April 2006. The claimant however gave evidence that he had in fact received payment for holidays taken in July 2005 and that he was no longer employed by the respondent by Christmas 2005 and clearly these claims are unfounded.
23. The claimant gave evidence that in or around January 2006 that he called to leave a letter at the home of a former Director of the first named respondent company, Mr Berry but that he was informed that Mr Berry no longer lived at that address. The claimant however stated that he left the letter on the chance Mr Berry should call to pick it up. The tribunal note that the claimant was aware that the company was still operating but chose not to make a claim for the payment by notice in writing to the company at its registered office. The claimant gave evidence that he doubted that the company itself would have any money to pay him. The tribunal also notes that the claimant was aware that his letter left at the former home of Mr Berry might never come to the attention of the former Director or the company. The claimant gave evidence that he left a further copy of the same letter addressed to Mr Berry at Mr Berry's former address following submission of his claim form RP1 to the Department after 29 May 2006.
24. The claimant gave evidence that he had not heard anything in response to his initial claim for a redundancy payment in May 2006 and so made enquiries and was informed that no claim form had been received from him. He was unable to say to whom he made enquiries. Taking the employee's effective date of termination of his employment at the very latest to be 25 November 2005 his claim for a redundancy payment by notice in writing should have been made before 25 May 2006. There is no evidence before the tribunal of notice having properly been given to the first-named respondent within the prescribed period. The claim made to the second-named respondent was not received until 2 June 2006, outside the prescribed period and accordingly in view of the provisions of Article 199 of the Employment Rights (Northern Ireland) Order 1996 the tribunal finds that the claimant does not have any right to a redundancy payment.
25. The claimant's claims for unpaid notice pay, holiday pay and redundancy pay are accordingly dismissed.

Chairman:

Date and place of hearing: 14 August 2007, Belfast.

Date decision recorded in register and issued to parties: