Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1131_08IT.html
Cite as: [2009] NIIT 1131_08IT, [2009] NIIT 1131_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1131/08

CLAIMANT: Ryan Simpson

RESPONDENTS: 1. Paintall Decorators

2. Department for Employment and Learning Redundancy Payments Services

DECISION

The decision of the tribunal is that the claimant is entitled to redundancy pay and holiday pay in the total sum of £2,134.12

Constitution of Tribunal:

Chairman (sitting alone): Ms P Shiels

Appearances:

The claimant appeared in person accompanied by his mother, Mrs Simpson.

The first-named respondent did not appear.

The second-named respondent was represented by Mrs P Stringer, of Department for Employment and Learning.

In view of the fact that there was no appearance from the first-named respondent, the Tribunal considered the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and in particular Article 27(5) which gives a tribunal the power to dismiss or dispose of proceedings in the absence of any party. The Tribunal decided to dispose of these proceedings in the absence of the first-named respondent and in reaching its decision considered all the information it had to hand. This included the fact that the first-named respondent was sent the claim form on 2 September 2008 and made no response; the fact that there was a letter from the Department for Employment and Learning to the industrial tribunal dated 19 September 2008 indicating that their information was that the first-named respondent had ‘ceased to trade’ and finally, that the first-named respondent had been sent a Notice of Hearing on 18 December 2008 and had made no reply to this.

Sources of evidence

The Tribunal heard from the claimant and Mrs Pat Stringer on behalf of the second-named respondent.

The Tribunal considered the claim form and heard evidence from the claimant and found the following facts proved on a balance of probabilities:-

(1) The claimant commenced an apprenticeship with the first-named respondent in 2000 when he was 17. The claimant was paid throughout this apprenticeship by the technical college.

(2) The claimant continued to work for the first-named respondent at the end of his apprenticeship in 2002 and worked for and was paid by them thereafter.

The claimant was paid £252.00 nett and £321.75 gross per week.

In or about December 2007 the claimant and the other employees received a letter in their wages. This letter advised that all employees were being put on temporary notice on the basis that the business was going slack. However the claimant and the other employees received this letter at the same time every year.

On 30 March 2008, Mr Colhoun told the claimant and the other employees that he was sorry, but that they would have to go tomorrow. The claimant received no other notice or warning until that morning. The claimant attended work the next day, 31 March 2008, and this was his last day of work.

The claimant received no holiday pay for the year 2008/09. The claimant stated that he would have been entitled to two weeks’ holiday pay in the summer, usually taken in May and two weeks’ holiday pay at Christmas.

The Tribunal heard from Mrs Pat Stringer, on behalf of the second-named respondent. Mrs Stringer advised that the Department had been in contact with the Companies Register and had been advised that the first-named respondent was a limited company. She further advised that the respondent company was currently not legally insolvent within the meaning of Article 228 of the Employment Rights (Northern Ireland) Order 1996. She confirmed that in view of this the second-named respondent would be unable to pay any redundancy payment at this stage.

Mrs Stringer did confirm that the company was going through the insolvency process. She further advised that if the company became legally insolvent the second-named respondent would pay the claimant the redundancy pay to which he was entitled and the second-named respondent would claim this back from the employer.

The Tribunal’s conclusions

The tribunal concluded that the claimant was entitled to a redundancy payment and four weeks’ holiday pay.

The law

The statutory provisions governing an employee’s entitlement to holiday pay and redundancy are contained within the Employment Rights (Northern Ireland) Order 1996.

Redundancy

The right of an employee to be paid a redundancy payment is contained in Article 170 of the 1996 Order. The circumstances in which such a payment should be paid and how it is calculated is governed by subsequent provisions of the same Order.

6. The Tribunal orders that the claimant should be paid holiday pay:-

Nett pay £252 x 4weeks= £1,008

The tribunal also orders that the claimant is entitled to redundancy pay in accordance with the formula for the calculation of this at Article 197 of the 1996 Order, namely:-

Gross pay £321.75 x 3¹/₂ weeks £1,126.12

In total the tribunal awards the claimant £2,134.12

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

Chairman:

Date and place of hearing: 27 January 2009, Londonderry

Date decision recorded in register and issued to parties:

3.

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