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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Keys v 1. Travelbreak [2009] NIIT 313_08IT (09 January 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/00313_08IT.html
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THE INDUSTRIAL TRIBUNALS
CASE REF: 00313/08
CLAIMANT: Leigh Keys
RESPONDENTS: 1. Travelbreak (NI) Limited
2. Mr Eric Patterson
3. Department for Employment & Learning
DECISION
The decision of the tribunal is that:-
1. the claimant was made redundant on 31 August 2007 by the first-named respondent and is entitled to a redundancy payment of £576.90;
2. the tribunal is satisfied that it was not reasonably practicable for the claimant to present her other claims to the tribunal within three months from her effective termination of employment on 31 August 2008 and that she presented her claims for three week’s holiday pay and three week’s wages to the tribunal within a reasonable time thereafter. The claimant is entitled to the payment of £495 in respect of unpaid wages and £495 in respect of outstanding holiday pay from the first-named respondent. The total amount to be paid to the claimant is therefore £1,566.90.
Constitution of Tribunal:
Chairman (Sitting Alone): Mr S A Crothers
Appearances:
The claimant appeared and represented herself.
The first and second-named respondents were not present. The third-named respondent was represented by Mrs Stringer.
The Claim
1. A decision of this tribunal was issued on 9 January 2009 revoking the tribunal’s Default Judgement dated 23 April 2008 and giving leave to amend the title to the proceedings in respect of the first-named respondent. The claimant had understood, at all material times, that the first-named respondent’s correct identity was Travelbreak (NI). It was established, however, under the auspices of the third-named respondent, that the correct designation of the first-named respondent was Travelbreak (NI) Limited, a company which had been struck off the company register some months prior to this hearing. Tribunal hearings were held on 11 August 2008 and 10 November 2008 and all parties were made aware of the issues for the hearing on 5 January 2009 by way of correspondence dated 5 December 2008. Responses have not been presented to the tribunal by or on behalf of the first and second-named respondents. Correspondence was received by the tribunal from Mr Eric Patterson, although not in the nature of a response to the claims. Mrs Stringer, on behalf of the third-named respondent, (“DEL”) confirmed that the first-named respondent was not legally insolvent and therefore DEL would be responsible for any tribunal award only in relation to a redundancy payment.
The Remaining Issues
2. The issues for the tribunal were as follows:-
(i) was the claimant entitled to a redundancy payment?
(ii) should time be extended to allow claims for holiday pay and unpaid wages, and if so, how much is the claimant entitled to?
Sources of Evidence
3. The tribunal heard evidence from the claimant and was presented with relevant correspondence.
Findings of Fact
4. Having carefully analysed the evidence before it the tribunal found the following facts proven on the balance of probabilities:-
(i) the claimant was employed as a Travel Consultant by the first-named respondent from 15 October 2003 until 31 August 2007. The tribunal is satisfied that the first-named respondent was the claimant’s employer at all material times. The effective date of termination of the claimant’s employment was 31 August 2007.
(ii) On or about 28/29 August 2007 the claimant received a text message from the second-named respondent indicating that the business was closing down and that there was no longer any work available for the claimant and her colleague, Jane Wylie.
(iii) The second-named respondent was uncontactable by telephone but his brother authorised the claimant and her colleague to deal with outstanding business in advance of 31 August 2007. The claimant recollected contacting the firm of solicitors acting on behalf of the first and second-named respondents on or about 6 September 2007. They advised the claimant and her colleague to contact DEL and to download applications and lodge claims for payments from the National Insurance Fund.
(iv) The claimant’s colleague, Jane Wylie, had sought advice from the Citizens’ Advice Bureau on or about 28/29 August 2007. She was advised as to the types of claims they could make. However there is no evidence of the claimant having been advised of time limits for presenting claims to an Industrial Tribunal.
(v) Owing to the difficulties within the business of the first-named respondent the claimant was unable to avail of three weeks holidays due to her.
(vi) The tribunal was shown correspondence received from the Redundancy Payments Service within DEL dated 11 September 2007 acknowledging receipt of the claimant’s claim for payment from the National Insurance Fund which had been received on 7 September 2007 and stating that -
“Investigations will be carried out which normally take six to eight weeks. We will contact you in due course”.
(vii) The claimant received further correspondence from the Redundancy Payments Service dated 6 December 2007 informing her that her application was rejected as Travelbreak (NI) Limited was not legally insolvent and pointing out that:-
“We cannot make any payments to you until you have taken all reasonable steps to obtain payment from your employer; this includes applying to an Industrial Tribunal claiming the payment from your employer.
If you wish to apply to an Industrial Tribunal, you should do so by completing a form IT1, which is available from any Jobcentre. Applications should be made within three months of the date of this letter”.
(viii) The tribunal accepts the claimant’s evidence that she understood the reference to a period of three months to mean that this was a reference to her claims for redundancy, outstanding holiday pay, and unpaid wages. She was busy in the period leading up to Christmas 2007 and was looking for other jobs. Given what she understood to be a three month period running from 6 December 2007 for presenting a claim to the tribunal, she did not do so until 11 February 2008, having signed the claim form on 24 January 2008. At the effective date of termination of her employment, the claimant was aged 41. Her gross weekly pay was £192.30 and her average take home pay per week was £165.
The Law
5. The tribunal considered the provisions in relation to redundancy as contained in Article 170 and following of the Employment Rights (Northern Ireland) Order 1996 (“The Order”), together with (in relation to time limits) Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 relating to breach of contract, Article 55 the Order relating to unauthorised deductions of wages and, insofar as is relevant, Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998. The tribunal also considered in relation to the time issues, the cases of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 CA, (‘Palmer’), Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA, Marks and Spencer plc v Williams-Ryan [2005] IRLR 562 CA, Riley v 1. Tesco Stores Ltd and 2. Greater London Citizens Advice Bureau Service Ltd [1980] IRLR 103 CA and Wall's Meat Co Ltd v Khan [1978] IRLR 499 CA. In addition to a consideration of the principles in these cases, the tribunal, following Palmer, considered whether it was reasonably feasible for the claimant to have presented her claim to the tribunal within 3 months from 31 August 2007. The tribunal further considered the provisions in the Order relating to notice pay and the relevant substantive provisions in the legislation referred to above.
Conclusions
6. Having considered the evidence and applied the principles of law to the facts as found the tribunal concludes as follows:-
(i) the claimant is entitled to a redundancy payment calculated as follows:-
on the termination of her employment she had three years complete service and was aged 41. Her pay was £192.30 gross per week (£165 net).
The appropriate multiplier for calculating her redundancy payment is -
£192.30 x 3 = £576.90
(ii) The claimant, by virtue of her service, is entitled to three weeks notice pay at £165 per week, amounting to £495.
(iii) I further order the first-named respondent to pay to the claimant the sum of £495 in respect of three weeks holiday pay.
(iv) The total amount to be paid to the claimant is therefore £1,566.90.
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 5 January 2009, Belfast.
Date decision recorded in register and issued to parties: