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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Armour v Reefer International Ltd Crossland Freight [2009] NIIT 1546_08IT (17 June 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1546_08.html
Cite as: [2009] NIIT 1546_8IT, [2009] NIIT 1546_08IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1546/08
CLAIMANT: Trevor Armour
RESPONDENTS: 1. Reefer International Limited
2. Crossland Freight
DECISION
It is the decision of the tribunal that the correct name of the first named respondent is that detailed above and the title of the proceedings is ordered to be amended accordingly. The second named respondent is dismissed from the proceedings as it was not the employer at the relevant date of dismissal.
The unanimous decision of the tribunal is that the first named respondent is ordered to pay to the claimant the sum of £ £4,080.
Constitution of tribunal:
Chairman (sitting alone): Ms M Sheehan
Appearances:
The claimant failed to attend the hearing in person.
There was no response to the claim submitted by the first named respondent. The second named respondent failed to attend the hearing.
SOURCES OF EVIDENCE
1. The tribunal considered the documentation before it as well as the correspondence and information received on the morning of hearing when the claimant was contacted via telephone by staff of the Office of the Industrial Tribunals and Fair Employment Tribunal in the presence of the tribunal.
2. The claimant in his complaint claimed that he had been dismissed without notice from his employment as a lorry driver in August 2008. He failed to insert any details in his claim other than to state his weekly wages and that he had commenced new employment on 26 August 2008. He indicated on the claim form that his claim was in respect of redundancy payment and breach of contract. In correspondence received from the claimant by the Office of the Industrial Tribunals and Fair Employment Tribunal prior to the date of hearing it was clear that his claim was in respect of a redundancy payment and compensation for no written notice given of dismissal or pay tendered in lieu of notice.
3. The first named respondent did not submit any response to the claim, which was served upon them. The second named respondent entered a response indicating that a ‘relevant’ transfer of business under the Transfer of Undertakings (Protection of Employment) Regulations 1981 as amended had taken place on 1 April 2008 between the second named respondent and the first named respondent.
ISSUES
4. The issues for the tribunal to determine were:-
(a) the correct identity of the claimant’s employer at the time of dismissal,
(b) whether the respondent dismissed the claimant as a result of redundancy and if so, the amount of redundancy payment due to the claimant, and
(c) whether the respondent employer was in breach of contract in failing to tender pay in lieu of notice and what damages if any the claimant was due in respect of such breach.
5. The first named respondent having failed to enter a response was not entitled to participate in the hearing. There was no appearance by the claimant or by the second named respondent. No message had been received explaining his non-appearance nor had any post issued by the Office of the Industrial Tribunals and Fair Employment Tribunal been returned as not delivered. The tribunal considered it appropriate as there was a mobile telephone number detailed on the claim form submitted that contact with the claimant should be attempted to ascertain whether matters had resolved.
6. Contact was successfully made by the staff member acting as clerk to the tribunal, in the hearing of the Chairman, who noted that the claimant advised that he had not received the Notice of Hearing. He also claimed that he had received a letter in November 2008 from the tribunal office stating that the case was not proceeding. The claimant requested that the matter be postponed as although he had received a redundancy payment there were ongoing discussions regarding the matter of payment in lieu of notice.
THE RELEVANT LAW
7. The tribunal considered the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 in particular Regulation 3 and rule 27 of Schedule 1. The tribunal noted that no letter had issued from the tribunal office in November 2008. Further the claimant when contacted did not seem particularly concerned or surprised to be advised that his case was listed for hearing on that date. There was a copy of correspondence dated 4 April 2008, on the tribunal file, that showed that four employees of the second named respondent had transferred to the employment of the first named respondent in April 2008. The tribunal noted that at an earlier date in December 2008 the claimant had been pressing for progress towards a date of hearing. That letter was received from the same address to which notification of the listing of the case on this date was dispatched. It appeared to the tribunal the claimant had received notice of the listing of the claim, he could easily have communicated with the tribunal to request a postponement, given that the file held by the tribunal indicated that on 8 December he had telephoned the tribunal to query progress. The documentation available to the tribunal allowed for the disposal of the hearing in a manner that appeared to do justice to the parties.
8. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (‘the 1994 Order’) provides at Article 3 that proceedings might be brought before an Industrial Tribunal in respect of a claim of an employee for the recovery of damages or any other sum (save damages for personal injuries) where the claim arises or is outstanding on the termination of the employee's employment. Thus, under this provision, an employee may bring a claim for pay in lieu of notice outstanding on termination of a contract, or indeed for any other contractual sum or sums claimed as properly due on termination. Article 118 of the Employment Rights (Northern Ireland) Order 1996 [‘the 1996 Order’] provides that an employee is entitled to notice of termination of her employment, up to a maximum of 12 weeks if that employment is 12 years or more. Article 118(3) of the 1996 Order provides that this entitlement may be waived and paid in lieu of notice. Article 123(5) provides that if an employer fails to give the notice required by Article 118 the rights conferred by Articles 199 to 122 (dealing with rights and payments during the notice period) shall be taken into account in assessing liability for breach of contract.
9. Regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 states, that in circumstances such as those in this case where a going concern sustains a change of employer but the place, nature of the business and employees remain the same, the transfer of such a business will not have the effect of terminating the contract of employment of any person employed by the transferor of the business.
10. The relevant legislation in respect of redundancy payment entitlement is found at Articles 170, 171, 174 and 175 of the Employment Rights (Northern Ireland) Order 1996.
11. Article 170(1)(a) 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 redundancy.
12. Article 171(1)(a) provides, subject to the provisions referred to therein, for the purposes of this part an employee is dismissed by his employer if (and only if) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice).
13. Article 174(1)(a)(ii) provides that 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 that business in the place where the employee was so employed.
14. In establishing a redundancy payment calculation, the tribunal is required to establish the ‘relevant date’ pursuant to Article 180 of the 1996 Order. Article 197 of the 1996 Order provides the formula for calculation of a redundancy payment.
15. Article 190 of the 1996 Order provides that an employee does not have any right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending on the relevant date.
16. Article 199 of the 1996 Order provides for the time within which a claim for a redundancy payment must be made. Article 199(1) provides an employee does not have any right to a redundancy payment unless before the end of the period of six months beginning with the relevant date:-
(a) the payment has been agreed and paid,
(b) the employee has made a claim for the payment by notice in writing given to the employer,
(c) a question as to the employee's right to, or the amount of, the payment has been referred to an industrial tribunal, or,
(d) a complaint relating to his dismissal has been presented by the employee under Article 195.
FACTS
17. The tribunal having considered all the documentation before it found the following facts: -
(1) The first named respondent became the employer of the claimant on 1 April 2008 upon there being a ‘relevant transfer’ within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations. The claimant is entitled to be treated as having been continuously employed by the first named respondent by virtue of the Transfer of Undertakings (Protection of Employment) Regulations. The commencement date of the claimant’s employment is not agreed between the parties. The claimant stated in his claim that it commenced on 15 August 2001. The second named respondent stated in the response to the claim that the commencement date was 6 October 2001. A copy letter attached to the response dated 4 April 2008 stated that the commencement date of the claimant’s employment was 15 October 2001. The actual date of termination of employment was 22 August 2008. It appeared to the tribunal that an employer more generally is aware of actual dates of employment given that they maintain the necessary records for tax and other employment purposes. On that basis it appeared to the tribunal that the second named respondent is more likely to be correct in their assertion that the claimant’s employment did not commence until a date in October 2001. In the circumstances and in the absence of any evidence to the contrary the tribunal concluded that the claimant was on the balance of probabilities likely to have commenced employment not before 6 October 2001.
(2) At the outset and throughout the claimant’s employment he was employed as a lorry driver as a full time employee. By the date of dismissal the claimant’s net weekly pay is claimed to be £350 and the gross £420. The second named respondent did not dispute those details in their response. As no pay-slips were provided to the tribunal for the thirteen weeks previous to his dismissal on 22 August 2008, the tribunal concluded on a balance of probabilities that those rates of pay were the actual rates of pay at the time of dismissal.
(3) The claimant received no notice of the respondent’s intention to terminate his employment. There was no evidence before the tribunal that any contract issued to the claimant contained a redundancy procedure. The first named respondent failed to tender to the claimant any payment in respect of notice pay – on the basis of his years of service.
(4) The claimant found alternative employment, which commenced on 26 August 2008 for a lower weekly wage (£300 net per week) as that paid by the first named respondent.
CONCLUSIONS
18. The claimant has not contended that a genuine redundancy situation did not exist. Accordingly the tribunal is entitled to assume in accordance with Article 174(1)(a)(ii) of the Employment Rights (Northern Ireland) Order 1996 that dismissal of the claimant was due to a cessation of work for the claimant and other similar employees. The provisions of Article 174(1)(a) are satisfied.
19. The claimant was employed firstly with the second named respondent and then with the first named respondent. The tribunal has no evidence before it to undermine the contention that he had a seamless history of employment with a ‘relevant transfer’ of the business occurring in April 2008. The claimant is deemed to have continuous employment under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 which applied to the transfer pertaining to his employment from the date of initial employment. The claimant has therefore been employed in excess of two years and is entitled to a redundancy payment. (See Article 190 of the 1996 Order).
20. The claimant was entitled to pay in lieu of notice for the unexpired portion of the claimant's contractual or statutory notice entitlement. The claimant was given no prior notice of dismissal before 22 August 2008. His last day of employment was 22 August 2008. The tribunal is unable to conclude from the facts that the claimant was entitled to any contractual notice beyond that provided for by statute under Article 118 of the 1996 Order, where the claimant would have been entitled to one week's notice for each full year of continuous employment, up to a maximum of 12 weeks. As the claimant received no notice, his claim for damages equated to six weeks pay in lieu of notice, on the basis that his first date of employment was not before 6 October 2001.
21. The ‘relevant date’ pursuant to Article 180(2)(b) of the 1996 Order is 22 August 2008.
22. The claimant submitted his claim to the Office of the Industrial Tribunal and Fair Employment Tribunal on 24 October 2008, thereby satisfying the requirements of Article 199(1)(c) of the 1996 Order.
23. Article 130A (2) of the 1996 Order states that failure by an employer to follow the statutory disciplinary procedure shall not be regarded for the purposes of Article 130(4) of Employment Rights (Northern Ireland) Order 1996 as by itself making the employer’s action unreasonable and therefore unfair if the employer can show that the employee would have been dismissed had the procedure been followed. The tribunal was satisfied that this claimant would have been dismissed in the circumstances disclosed on the available evidence.
REMEDY
24. The claimant is deemed to have worked for the first named respondent for six years. All six years of the claimant’s service occurred where he was aged under 41 but over 21 years of age. Under Article 197(2)(a) of the 1996 Order the claimant is therefore entitled to one week’s pay for each of the six years. The claimant’s weekly pay will be subject to the maximum weekly amount permitted by statute at the date of redundancy – SR 2008 No 47. The tribunal determines that the claimant is entitled to receive payment from the first respondent calculated as follows:-
£330 x 6 = £1,980
This amounts to a total payment of £1,980.00 in respect of redundancy.
25. The tribunal had no evidence before it to undermine the claimant’s claim that he was contractually entitled to at least the prescribed statutory notice or pay in lieu of notice where his employment was terminated by his employer. The effective date of termination of his employment was 22 August 2008. It was on that date the breach of contract occurred and pecuniary loss was suffered by the claimant. While the tribunal noted that the claimant had, as required by law, attempted to mitigate his losses by seeking alternative employment, the tribunal considered that in the circumstances the claimant suffered his damage in August 2008 and therefore is entitled to damages reflecting the loss of six weeks pay in lieu of notice. The tribunal determined that sum as:-
£350 x 6= £2,100.00.
26. The claimant did not make any claim for income support during the period he was out of employment. Accordingly, the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply to this decision.
27. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21 April 2009, Limavady
Date decision recorded in register and issued to parties: