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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Stevenson v Bradbury Cleaning Ltd [2009] NIIT 1102_08IT (07 April 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1102_08IT.html
Cite as: [2009] NIIT 1102_8IT, [2009] NIIT 1102_08IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1102/08
CLAIMANT: Deano Stevenson
RESPONDENT: 1. Bradbury Cleaning Ltd (In Liquidation)
2. Department for Employment and Learning for Northern Ireland.
DECISION
The unanimous decision of the tribunal is as follows:
The proceedings against the first named respondent (“the Company”) are dismissed.
It is hereby declared that the amount of payment to which the claimant is entitled pursuant to Article 227 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) is as follows:
The claimant is entitled to be paid the sum of £870 for wages (less deductions for national insurance and income tax).
The claimant is entitled to be paid the sum of £420 in respect of holiday pay (less deductions in relation to national insurance and income tax).
Constitution of tribunal:
Chairman: Mr P Buggy
Members: Ms G Ferguson
Ms T Madden
Appearances:
The claimant appeared on his own behalf.
The Company was not represented.
The Department was represented by Mr Peter Curran of the Redundancy Payments Branch.
REASONS
In these proceedings, the claimant makes claims in respect of unpaid wages and in respect of pay in lieu of accrued holidays.
We announced our decision at the end of the hearing. We gave our reasons at the time of issuing the decision. The following reasons are provided in summary form.
On the basis of the sworn oral testimony of the claimant, having had regard to the available documentation, and having noted the submissions of Mr Curran (on behalf of the Department), we were satisfied, on the balance of probabilities, that gross sums of £870 and £420 (in respect of wages and in respect of accrued holiday entitlements) were due, at the relevant time, in respect of relevant periods, from the company.
Article 227 provides that if, on an application made to the Department in writing by an employee, the Department is satisfied that the employee’s employer has become “insolvent”, the Department is obliged (subject to certain statutory maxima) to pay the employee, out of the Northern Ireland National Insurance Fund, the amount to which, in the opinion of the Department, the employee is entitled in respect of certain employer’s debts.
For the purposes of Article 227, a corporate employer (like the Company in this case) becomes insolvent if a winding up order has been made with respect to that corporate body. A winding up order was indeed made against the Company.
There is no doubt that when the Company become insolvent, any debt in respect of wages and holiday pay had already arisen.
The real issue in this case was what was the amount of the claimant’s entitlements? As a result of the claimant’s sworn testimony in this case, that issue has now been resolved.
The claimant accepts that no useful purpose would be served by continuing proceedings against the Company. (In any event, because of the winding up order, the claimant would not be entitled to continue his proceedings against the Company unless and until the consent of the High Court was obtained: see Article 110 of the Insolvency (Northern Ireland) Order 1989). Accordingly, the claimant has agreed to withdraw the claims against the company and we accordingly dismiss the proceedings against the Company.
The claimant is not entitled to “gross sums” either in respect of the unpaid wages or in respect of the holiday pay entitlement. (If the debts had been paid by the employer, each of the two payments would have been subject to deductions in respect of national insurance and in respect of income tax).
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 27 March 2009, at Belfast
Date decision recorded in register and issued to parties: