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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smyth v Solo Group [2009] NIIT 205_09IT (14 August 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/205_09IT.html
Cite as: [2009] NIIT 205_9IT, [2009] NIIT 205_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 205/09
CLAIMANT: Gary Smyth
RESPONDENT: Solo Group
DECISION
The unanimous decision of the tribunal is that the claimant is not an employee of the respondent and is therefore not entitled to an amount in respect of notice pay.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr McAuley
Mr Laughlin
Appearances:
The claimant was present and represented himself.
There was no accepted response in respect of the respondent and the respondent was not present at the hearing.
The Claim
1. The claimant claimed age discrimination together with one week’s net salary in respect of notice pay.
The Issues
2. The claimant was allowed some time to consult with the Labour Relations Agency in respect of his claim. He withdrew his claim for age discrimination from before the tribunal and pursued his claim for notice pay only.
Therefore the issue before the tribunal was as follows:-
Is the claimant entitled to a payment in lieu of notice?
Sources of Evidence
3. The tribunal heard evidence from the claimant and considered documentation furnished by him to the tribunal.
Findings of Fact
4. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-
In paragraph 5.1 of his claim form the claimant claimed that he was employed by the respondent from January 2008 until 17 October 2008.
In paragraph 5.2 he claimed that he was employed as a joiner for the respondent and gave gross and net salary details. However it emerged in the course of evidence that the claimant in fact signed a sub-contractor’s agreement shortly after commencing work for the respondent. The tribunal was furnished with a variety of wage slips by the claimant. Although these showed that tax had been deducted by the respondent, national insurance contributions were paid by the claimant. Furthermore, the claimant informed his accountant that he was self employed during the relevant period in this case. He also claimed relief for certain expenses which were tax deductible during the same period and had received accountancy advice in respect of these.
The Law
5. The tribunal considered Article 118 of The Employment Rights (Northern Ireland) Order 1996 which requires an employer/employee relationship in respect of notice pay. Remedies for breach of contract are found in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.
Conclusions
6. Having considered the evidence and the facts as found the tribunal concludes that the claimant was not an employee of the respondent during the relevant period and therefore is not entitled to a notice payment. Whilst the tribunal has sympathy with the claimant in the circumstances in which he found himself, it finds itself unable to uphold his claim, which is therefore dismissed.
Chairman:
Date and place of hearing: 27 July 2009, Belfast.
Date decision recorded in register and issued to parties: