Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/198_06.html
Cite as: [2007] NIIT 198_6, [2007] NIIT 198_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 198/06

CLAIMANT: Martin Anthony McAllister

RESPONDENT: 1. Road and Sea Express Group Ltd

2. Department for Employment and Learning

DECISION

The decision of the tribunal is that the claimant is entitled to a redundancy payment from the second-named Respondent.

Constitution of Tribunal:

Chairman: Ms D A Elliott (Chairman sitting alone)

Appearances:

The claimant represented himself.

The first respondent was not represented.

The second respondent was represented by Mrs K Dobbin.

1. Issues

The issues to be determined by the tribunal was whether the claimant was entitled to a redundancy payment and payments in respect of outstanding wages, holiday pay and overtime. The first-named respondent, the claimant's former employer ceased to trade on 22 April 2005 and at the date of hearing was in compulsory liquidation. Accordingly the provisions of Article 228 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") are met. The claimant lodged an application for a statutory redundancy payment and other monies owed outside six months of the termination of his employment (as required under Article 199 (1) of the 1996 Order). The issue to be determined by the tribunal was whether in accordance with Article 199 (2) and (3) it would be just and equitable for the claimant to receive a redundancy payment.

2. Evidence

The tribunal considered the originating claim and oral evidence of the claimant. The claimant provided the tribunal with copies of his pay slips and P60s. The tribunal also heard submissions from Mrs Dobbin representing the second-named respondent. A copy of the claimant's application for payment from the National Insurance Fund was made available to the tribunal. The liquidator in respect of the first-named respondent advised by letter dated 31^st October 2006 that no party would be in attendance on behalf of the first respondent.

3. Findings of Fact

After considering the evidence before it, the tribunal made the following findings of relevant fact:-

1. The claimant commenced employment with the first-respondent on 13 March 2001 as a HGVdriver - warehouse operative. Despite assurances from the first respondent that the business was sound, the company ceased to trade on 22 April 2005. The claimant was advised in a telephone call from the former transport manager that the business was closing down. The claimant received no notice pay but has since received four weeks compensatory notice pay from the Insolvency Service in Edinburgh. The claimant was given contact details by the Social Security Agency after he became unemployed. The claimant was advised to contact the offices of the second respondent in Belfast and obtained an application form in respect of a claim for a statutory redundancy payment. The claimant was unable to complete the form at this time as he was unable to ascertain the identity of the liquidator, despite further contact with the Belfast office of the second respondent. There appeared to have been a delay in the appointment of a liquidator. The claimant commenced filling in the claim form on 5 May 2005. The claimant did not have ongoing contact with his colleagues most of whom lived in Belfast. The claimant gave evidence that he expected that the liquidator would get in touch with him and that he was unsure of the time limits.

2. The claimant gave evidence that in October 2005 he was contacted by Mr Ian Ogilvie, the former traffic manager with the first respondent. Mr Ogilvie had telephoned the claimant in respect of a job opportunity and inquired if he had got sorted out with a redundancy payment. The claimant advised that he had been unable to advise the identity of the liquidator. Mr Ogilvie gave the claimant the details he required to complete his form and advised him to waste no time as there was a six month time limit. The claimant was further advised to forward his form directly to the liquidators in England. The claimant acted upon this advice and forwarded his completed form on 16 October 2005. Thereafter the claimant telephoned the liquidator over the next two days to check if they had received his form and same was confirmed. The claimant was subsequently advised by the second respondent that the application form was received by the Belfast Redundancy Payment Service on 7 November 2005. The liquidator forwarded the form to the Belfast office after receiving same from the claimant. The claimant was advised by letter dated 11 November 2005 that his application was outside the time limit and that he would have to take the matter to an industrial tribunal.

4. The Law

Article 190 of the 1996 Order provides that 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.

Article 199 of the 1996 Order provides for the time within which a claim for a redundancy payment must be made. Article 199 provides;

(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 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 195.

(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 steps as is referred to in paragraph (2) within the period mentioned in paragraph (1), and

(b) all the other relevant circumstances.

5. Conclusions

1. Having considered all the evidence before it, the tribunal finds that the claimant made every effort to pursue his claim for a redundancy. The claimant complained of a lack of information especially in respect of his attempts to establish the identity of the liquidator. The claimant gave evidence that he had thought that the liquidator would have contacted him. The claimant stated that it was due to a lack of information that he had failed to lodge his claim within six months. The claimant acknowledged that he had acted on the advice of Mr Ogilvie and forwarded the form directly to the liquidator. In all the circumstances the tribunal concludes that it would be just and equitable that the claimant should receive a redundancy payment despite the fact that the claim was not made within six months of the termination of employment.

2. The claimant was employed for over two years and is therefore entitled to a redundancy payment. (Article 190 of the 1996 Order).

The claimant is entitled to apply to the second-respondent for a payment under Article 201 (1) (b) of the 1996 Order as the first respondent is insolvent.

The tribunal declares that the claimant is entitled to the redundancy payment set out as follows:-

(a) The claimant worked for the first respondent for four years and is over 41 years of age (but under 64 years of age). Under Article 197 2 (a) the claimant is therefore entitled to one and a half weeks pay for each year of employment. The maximum weekly amount permitted by statute at the date of redundancy was £280 under Article 231 of the 1996 Order (as amended). The tribunal determines that the claimant is entitled to receive payment from the second-respondent calculated as follows:-

£280 x 6 = £1,680

(b) Under Article 22a (1) (a) of the 1996 Order the claimant is entitled to claim any outstanding arrears of pay in respect of one or more weeks worked. The claimant gave evidence that he was owed one weeks pay (including shift allowance and overtime) for the week commencing 18 April 2005 until 22 April 2005. The tribunal determines that the claimant is entitled to receive the sum of £280 (maximum permitted weekly amount) and Orders that said amount be paid by the second-respondent.

(c) Under Article 229 (1) (c) of the 1996 Order the claimant is entitled to claim any outstanding arrears of pay in respect of any outstanding holiday pay. The claimant gave evidence that he was owed three days holiday pay having worked on Easter Monday and Tuesday, 28 and 29 March 2005. The claimant also carried over one day from the previous leave year. The tribunal determines that the claimant is entitled to three days holiday pay in the sum of £168 (as calculated in accordance with the maximum weekly amount permitted under statute).

(d) The claimant gave evidence that he was owed three hours overtime from a week prior to 2 April 2005. At the date of hearing the claimant was unable to find his terms of employment. The tribunal was therefore unable to establish if the requirements to work overtime and be paid for same was a term of the claimant's contract, as required. The tribunal therefore, regrettably, was unable to make an award in respect of the amount.

(e) The total amount to be paid under 5 (2) a), b) and c) is therefore calculated as follows:-

£1,680

£ 280

£ 168

£2,128

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

Chairman:

Date and place of hearing: 24 November 2006, Belfast.

Date decision recorded in register and issued to parties: