Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAuley v O'Neill [2009] NIIT 794_08IT (14 January 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/00794.html
Cite as: [2009] NIIT 794_8IT, [2009] NIIT 794_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 794/08

CLAIMANT: Veronica McAuley

RESPONDENT: Liam O’Neill

DECISION

The decision of the tribunal is that the respondent shall pay the claimant a redundancy payment of £1,076.40. The tribunal dismisses the claimant’s claim for notice pay.

Constitution of Tribunal:

Chairman (Sitting Alone): Ms Bell

Appearances:

The claimant appeared in person.

The respondent was not presented and was not represented.

1. The claimant complained in her claim that she had not received a redundancy payment following closure of the respondent’s business and had received only 2 weeks of her 6 week notice entitlement.

2. No response to the claim has been accepted from the respondent in accordance with the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

ISSUES

3. The issues for the tribunal were whether the claimant was entitled to:-

- a redundancy payment;

• pay in lieu of notice.

EVIDENCE

4. The tribunal considered the claim, documentation handed in by the claimant and heard oral evidence from the claimant.

FINDINGS OF FACT

5. The claimant, born on 3 April 1963, was employed by the respondent to carry out cleaning and laundry work from 18 June 2001 in Antrim Coast Private Nursing Home until the respondent decided to cease carrying on his business on 31 October 2007.

The respondent gave the claimant notice of termination of her employment by letter dated 28 September 2007.

The claimant wrote to the respondent seeking her redundancy payment in respect of her notice entitlement on 30 October 2007 and subsequently received a reply from the respondent dated 26 November 2007 assuring her that a redundancy payment would be paid, as at the hearing date the claimant had not heard from the respondent since.

The claimant was contracted to work 26 hours a week at £5.52 gross per hour.

The claimant’s claim was received by the Industrial Tribunal on 29 May 2008.

THE LAW

6. Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his if the employee is dismissed by the employer by reason of a redundancy.

7. Under Article 174 of the 1996 Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him, or to carry on that business in the place where the employee was so employed.

8. Article 197 of the 1996 Order sets out how the amount of a redundancy payment shall be calculated.

9. The Industrial Tribunal has jurisdiction to hear contract claims for the recovery of damages under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 subject to the time limits set out in Article 7. Under Article 7 an Industrial Tribunal shall not entertain a contract claim unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the applicable period, within such further period as the tribunal considers reasonable.

APPLICATION OF LAW TO THE FACTS

10. The tribunal is satisfied from the claimant’s undisputed oral and documentary evidence that the claimant was dismissed by reason of redundancy the respondent having ceased to carry on his business for the purposes of which the claimant was employed on 31 October 2007.

11. At 31 October 2007 the claimant had 6 complete years of employment, for 3 of which she was over 41 years of age and for 3 of which she was over 22 years of age. Accordingly the claimant is entitled to a redundancy payment calculated as follows:-

3 x £143.52 x 1.5 = £ 645.84

3 x £143.52 x 1 = £ 430.56

Total £1,076.40

12. Whilst the claimant was clearly entitled under her contract and by statute to a minimum of six week’s notice but only received two, the tribunal is not satisfied that it has jurisdiction to hear her contract claim, it having been presented out of time, nor that it was not reasonably practicable for it to be presented within three months of termination of the claimant’s employment.

13. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 17 October 2008, Belfast

Date decision recorded in register and issued to parties: