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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Starrs v Jack and Jill Playcare Limite... [2008] NIIT 229_08IT (16 July 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/229_08IT.html
Cite as: [2008] NIIT 229_08IT, [2008] NIIT 229_8IT
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- All the claimant's claims against the third-named respondent ("the Company") are well-founded. It is ordered that the Company shall pay to the claimant the sum of £745.
- All the claimant's claims against the other respondents are not well-founded and must be dismissed.
- The Company has no money and has ceased to carry out any activities.
- Against that background, having noted that the Company was not represented at this hearing, we decided to dispose of the proceedings in the absence of the Company.
- In doing so, we took account of the information which was contained in, and enclosed with, responses which were presented in relation to these proceedings and in relation to proceedings which were brought by Ms Margaret Ann Starrs. (The case reference for the Starrs proceedings is 229/08).
- The claimant was employed by the Company from March 2007 until October 2007. In October 2007, her employment was terminated, without notice, with immediate effect. At the time of her dismissal, her gross weekly pay was £207.
- In these proceedings, the claimant makes the following claims:
- We are satisfied that the claimant was dismissed without due notice. We are also satisfied that she is owed a weeks wages. We are also satisfied that she is owed eight days of holiday pay.
- There is an issue as to whether claims in respect of failure to pay wages, in respect of notice pay and in respect of accrued holiday pay should be paid on the basis of gross weekly pay or on the basis of net weekly pay.
- Ms Baird has made it clear that the Department would prefer the tribunal to make orders on the basis that gross pay is recoverable (in the expectation that the Department would make the necessary arrangements for any appropriate deductions of income tax or national insurance from any payments being made). Because of the circumstances of this case, it seems to be very unlikely that the Company will in fact make any payment pursuant to this Decision. In reality, the only respondent who may be making any relevant payment pursuant to this Decision is the Department.
- Against that background, we have decided to make awards on the basis of gross pay (as distinct from net pay). Obviously, that issue could be revisited, in the course of the determination of any review application, in the unlikely event of the Company being able to make any payment pursuant to this Decision.
- The first and second-named respondents are individuals. As the claimant frankly recognises, claims against those respondents cannot be established because the claimant was employed only by the Company.
- At present, the claimant has no entitlement to look to the Department for payment in respect of any of her claims, because all of the requirements of Article 227 of the 1996 Order have not been met.
- One of the requirements of Article 227 is that the Company must be "insolvent" within the meaning of Part XIV of the 1996 Order. A company is "insolvent" within that meaning only if one of the situations listed in paragraph 13 exists in respect of that company.
- The relevant situations are as follows:-
- Unfortunately, none of the situations described in the last paragraph applies at present in connection with the Company. Therefore, the current position is that the Department has no liability in respect of the claimant's claims.
- This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
CASE REF: 226/08
CLAIMANT: Ciara Louise McKinley
RESPONDENTS: 1. Marc McGerty
2. Stephanie McLaughlin
3. Jack and Jill Playcare (Ballycastle) Ltd
4. Department for Employment & Learning
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mr A Burnside
Mrs B Heaney
Appearances:
The claimant appeared in person.
The first-named respondent (the Company) was not represented.
The fourth-named respondent (the Department) was represented by Mrs P Baird of the Department's Redundancy Payments Service.
REASONS
The claims
(1) A claim of £207 in respect of unpaid wages for one week;
(2) a claim of £207 in respect of notice pay; and
(3) a claim of £331 in respect of eight days holiday pay entitlement which had accrued at the time of the claimant's dismissal.
General
The claims against individual respondents
The claims against the Department
(1) A winding up order or an administration order has been made, or a resolution for voluntary winding up has been passed, with respect to the company;
(2) a receiver or a manager of the company's undertaking has been appointed, or possession has been taken, of any property of the company comprised in or subject to a floating charge; or
(3) a voluntary arrangement has been proposed and approved in respect of the company.
Interest
Chairman:
Date and place of hearing: 7 July 2008 at Belfast
Date decision recorded in register and issued to parties: