Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/5771_09IT.html
Cite as: [2009] NIIT 5771_09IT, [2009] NIIT 5771_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 05771/09;

05772/09

CLAIMANTS: Virginia Boyle

Deirdre Donnelly

RESPONDENT: Felim Rafferty T/A John F McEvoy & Co

DECISION

The unanimous decision of the tribunal is as follows:-

The First-named claimant, Mrs Boyle's, claims are well-founded and the tribunal Orders the respondent to pay to Mrs Boyle compensation as follows:-

(a) Pay in lieu of notice - £3,315.00.

(b) Redundancy pay - £8,050.00.

(d) Wages - £292.00.

TOTAL: £11,966.40.

The Second-named claimant, Mrs Donnelly’s, claims are well-founded and the tribunal Orders the respondent to pay to Mrs Donnelly compensation as follows:-

(a) Pay in lieu of notice - £1,980.00.

(b) Redundancy pay - £4,031.25.

(d) Wages - £114.00.

TOTAL: £6,310.05.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Dr Ackah

Mr R Hanna

Appearances:

The claimants were represented by Mr McDonald, Solicitor, of Walker McDonald, Solicitors

The respondent appeared and represented himself in the proceedings.

Reasons

1. The tribunal heard oral evidence from the claimants and from the respondent and the tribunal noted the documentation consisting of the claim forms and the responses thereto and an agreed bundle of documents placed before the tribunal in evidence.

The Issues

2. At the outset of proceedings, in pursuance of the overriding objective contained in the tribunal’s Rules of Procedure, the tribunal invited the parties to consent to the amalgamation of the respective claims of the two claimants. This was for the reason that the alleged facts in respect of both the claims appeared to be rather similar, as contended, and there was a common respondent to both proceedings. The amalgamation was consented to by all parties and the tribunal made an appropriate order amalgamating the respective claims, which were agreed to be heard and considered together. The claimants claimed unpaid wages, holiday pay, notice pay and redundancy pay. In responses to the respective claims, the respondent conceded that both of the claimants had been employees of his firm and that the stated dates of employment and wages details were correct. However (and this was clarified at the commencement of the proceedings) the respondent strenuously resisted the contention that he had dismissed either of the claimants from employment. The tribunal therefore proceeded with the hearing of the matter on the basis that there was no express or implied concession made in respect of any part of the respective claims as set forth by the claimants (but see the tribunal’s further comments at paragraph 5 of this decision). Accordingly, the tribunal had to determine the claimants’ contentions. If these were to be found by the tribunal well-founded, the matter of appropriate remedy then had to be determined.

The Tribunal’s Findings of Fact

3. In consequence of the oral and documentary evidence before it, the tribunal on the balance of probability determined the following material facts:

(a) The first-named claimant, Mrs Virginia Boyle (“Mrs Boyle”) commenced employment with the respondent on 14 August 1981 as a legal secretary. At the material time which concerns this tribunal, Mrs Boyle had completed 28 years of continuous service and she was aged 47 years. Her gross wage per week was £350.00, and her net wage after deductions was £276.25. This employment came to an end in circumstances which will be further referred to below.

(b) The second-named claimant, Mrs Deirdre Donnelly (“Mrs Donnelly”) commenced employment with the respondent on 1 June 1981 as a book keeper/legal secretary. At the material time which concerns the tribunal, she had completed 28 years of continuous service and she was aged 44 years. This was part-time employment and her gross weekly wage was £187.50 and her net wage was £165.00 after deductions. This employment also came to an end in circumstances which will be further referred to below.

(c) The firm, John F McEvoy & Co, consisted of the principal Solicitor, Mr Rafferty, who is a practicing Solicitor, and Mrs Boyle and Mrs Donnelly. There were no other employees. The customary arrangement regarding wages was that Mrs Boyle and Mrs Donnelly were paid in cash on each Friday. Normally Mrs Donnelly attended the firm’s bank with a wages cheque signed by the respondent and that cheque was encashed by the bank. Mrs Donnelly would then return to the office and the respondent would pay the wages from this cash to Mrs Donnelly and Mrs Boyle.

(d) On Friday 20 February 2009, the respondent personally attended the bank. Upon his return, he explained to Mrs Donnelly and Mrs Boyle that he was unable to pay wages as the bank was not prepared to honour his firm’s cheque. Understandably, the claimants were concerned at hearing this and spoke further with the respondent who urged Mrs Donnelly and Mrs Boyle to afford him more time in an endeavour to resolve matters.

(e) Both Mrs Donnelly and Mrs Boyle duly attended work as normal on the following Monday and Tuesday. On Wednesday 25 February 2009, Mrs Donnelly and Mrs Boyle were present in the office working and the respondent was apparently engaged in a telephone conversation in an upper office in the office premises. The respondent then came down the stairs and he engaged in a conversation with both Mrs Donnelly and Mrs Boyle. The tribunal has carefully noted both of the claimants accounts given in oral evidence of what was said and also the account of the respondent. Assessing the quality of the evidence and attaching appropriate weight to the evidence of the parties to this case, the tribunal finds as a matter of fact that the respondent addressed to both Mrs Donnelly and Mrs Boyle the following words, “Sorry girls, it’s over.” In response to that, Mrs Donnelly asked the respondent if the employees would need to sign on for state benefits. In reply to that question, the respondent said, “I’m afraid so.” The respondent gave to both Mrs Donnelly and Mrs Boyle the sum of £150.00 in cash towards wages that day, but that was all.

(f) That afternoon, both Mrs Donnelly and Mrs Boyle attended their local Social Security Office, and they applied for state benefits. The tribunal is entirely satisfied from the evidence that this was done by both claimants on the clear understanding on the part of both Mrs Donnelly and Mrs Boyle that they had that day been summarily dismissed from employment by the respondent.

(g) Notwithstanding what had transpired, on an entirely voluntary basis both Mrs Donnelly and Mrs Boyle thereafter attended the respondent’s office and they both assisted the respondent further with work. However, that was done by both Mrs Donnelly and Mrs Boyle without any arrangement or agreement that this would be paid employment and any assistance was rendered in an entirely voluntary capacity in each case. The tribunal is satisfied without any doubt that this gesture was in pursuance of what must be said to be a very laudable effort on the part of Mrs Donnelly and Mrs Boyle to assist the respondent with his difficulties in continuing with his professional practice.

(h) Over the succeeding days and weeks, both Mrs Donnelly and Mrs Boyle spoke with the respondent on a number of occasions about monies due to them that remained unpaid, including redundancy pay, holiday pay, pay in lieu of notice and unpaid wages. Whilst on 25 February 2009 each of the claimants had received from the respondent £150.00 in cash towards wages, thereafter they received nothing further, notwithstanding numerous requests for payment to be made.

(i) Each of the claimants, by letter dated 30 March 2009 and on the advice of the local Citizens’ Advice Bureau, put their respective complaints in writing to the respondent and thereby stated that on 25 February 2009 the respondent had informed each that her employment was terminated. A request was made in these letters to confirm that each employee was in fact redundant. A claim was made therein for redundancy pay, unpaid wages, holiday pay and pay in lieu of notice. No response whatsoever was received to these letters from the respondent nor indeed to a follow up telephone call in each case where each of the claimants threatened to bring proceedings to an Industrial Tribunal. The tribunal notes that at no stage prior to the issue of proceedings, whether orally or in writing, did the respondent ever deny or reject the suggestion that the claimants had been dismissed from employment on 25 February 2009. The first such denial on the part of the respondent appears to be contained in the response to the proceedings in each case.

(j) The tribunal noted that a letter of reference had been written in respect of each claimant by the respondent dated 25 February 2009 in which the respondent personally vouched for the integrity, ability, trustworthiness, confidence and honesty of each claimant. Further to that (and this is based upon the evidence of Mrs Donnelly which the tribunal fully accepts to be accurate and compelling and documentary evidence consisting of a copy of the relevant document) in the case of Mrs Donnelly, the respondent personally signed, after carefully reading through this document, an insurance claim form which had the effect of expressly certifying on the respondent’s part that Mrs Donnelly had been made subject to compulsory redundancy from his firm. The tribunal notes that when questioned in the course of his cross-examination by the claimants about the above-mentioned reference letters and the foregoing insurance form which had been signed by him, the respondent endeavoured to resile from the position as certified by him in the insurance form. The respondent provided to the tribunal the explanation for all of this that he wished to avoid a confrontation and therefore he had signed these documents but he contended that they did not represent a true and accurate account of the position.

The Applicable Law

4. Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that: "An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction". Article 45(3) of the 1996 Order provides that: "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion". The Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned. Article 59 of the 1996 Order provides that the definition of “wages”, in relation to a worker, means: "... any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...", subject to certain statutory exceptions which do not apply to the facts of this case.

Article 170 of the 1996 Order provides that an employer shall pay a redundancy payment to any employee in the event that the employee is dismissed by the employer by reason of redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set forth in Article 174 of the 1996 Order. This provides as follows: “For the purposes of this 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 (a) the fact that his employer has ceased or intends to cease (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.” Article 197 of the 1996 Order sets out how the amount of the redundancy payment should be calculated with reference to length of service and age of the employee and Article 23 of the 1996 order, as amended, provides that for the purpose of calculating a redundancy payment the amount of the week’s pay shall not exceed (at the material time) £350.00.

The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 provides that an employee may bring a claim for damages for breach of contract of employment or for a sum due under that contract if the claim arises or is outstanding on termination of employment.

The Tribunal’s Determination

5. In this case, whilst some facts such as the computation of wages, duration of service, and the status of both of the claimants as employees are not in contention, the tribunal notes that it was not until the stage in the hearing that submissions were reached (this being towards the very conclusion of the case), that the respondent did actually make the rather significant concession that the claims of both of the claimants was conceded by him, with the exception of the redundancy payment claim in each case. This concession, even then, was only forthcoming on foot of a request on the part of the tribunal for the respondent to clarify his position. The tribunal notes, certainly with some concern, that the respondent’s concession could have been made at a much earlier stage and thus the focus of the tribunal’s attention might have been narrowed and time otherwise expended in the hearing of the matter might have been saved.

6. In view of this concession, the tribunal need only focus on whether or not there was a dismissal, and, if so, whether redundancy was the reason for that dismissal in each case. Turning, firstly, to the statutory definition of redundancy as stated above, there is no doubt that the factual scenario as outlined by the claimants is in accordance with statutory definition of redundancy in the cases of both the claimants (see Article 174 of the 1996 Order). Therefore the only matter in issue is whether or not there was in fact a dismissal in each case.

7. The tribunal has found the evidence of both of the claimants to be clear, consistent one with the other, and persuasive and compelling. The tribunal has no doubt whatsoever that the words as recorded above were spoken by the respondent to the claimants. From these words the claimants drew the entirely understandable and reasonable conclusion that they were each being summarily dismissed with effect from 25 February 2009. The actions of the claimants in attending the local benefits office on the afternoon of that day to initiate a claim for state benefits are consistent with their understanding of a dismissal in each case. There is corroboration of that dismissal in respect of Mrs Donnelly to be found in the signature on the respondent’s part of an insurance form, whereby the respondent has certified to an insurer that Mrs Donnelly was made subject to compulsory redundancy. Certainly the tribunal notes the respondent’s evidence and assertions which endeavoured to contradict the suggestion that there was a dismissal in either case.

8. However, the tribunal has little difficulty in finding unanimously that the claimants, Mrs Donnelly and Mrs Boyle, were both dismissed by the respondent with effect from 25 February 2009. These dismissals were summary and, as has indeed now been conceded by the respondent, were without pay in lieu of notice. Further, it has also now been conceded by the respondent that holiday pay and wages are indeed due to each of the claimants. It was not conceded by the respondent that redundancy pay was due. However, the tribunal finds that there was a dismissal on grounds of redundancy in respect of both Mrs Donnelly and Mrs Boyle.

9. Accordingly, the tribunal finds all of the respective claims of both Mrs Donnelly and Mrs Boyle to be well-founded and the tribunal Orders the respondent to pay to the claimants compensation as is set out below.

Mrs Boyle

10. If Mrs Boyle had been given due notice of termination, she would have received 12 weeks’ notice, or pay in lieu of notice. That is conceded by the respondent. Pay in lieu of notice is at the contractual rate of £276.25 per week, a total of 12 x £276.25 = £3,315.00.

11. In respect of Mrs Boyle's claim for redundancy pay, based on Mrs Boyle’s age and length of service, the appropriate multiplier is 23. Taking account of the statutory maximum weekly amount of £350.00 that equates to Mrs Boyle’s gross wage and produces a figure for redundancy pay as follows:-

23 x £350.00 = £8,050.00

12. In respect of the Mrs Boyle's claim for holiday pay, that is conceded by the respondent and the tribunal accepts that 5.6 days’ holiday pay was due and outstanding in respect of untaken leave at termination of this employment. Taking account of a daily nett pay figure, which the tribunal computes at £55.25 per day, this produces a figure due for holiday pay of £309.40.

13. In respect of the Mrs Boyle's claim for unpaid wages, the tribunal accepts that Mrs Boyle worked a total of eight days, from Monday 16 February 2009 for the rest of that week and three days in the following week, without pay save for the £150.000 given in cash by the respondent on 25 February 2009. This represents eight days at £55.25 per day or £442.00 less £150.00, being the sum of £292.00 as a figure for unpaid wages.

14. Mrs Boyle's claims are well-founded and the tribunal Orders the respondent to pay to Mrs Boyle compensation on foot of the foregoing statutory provisions as follows:-

(a) Pay in lieu of notice - £3,315.00.

(b) Redundancy pay - £8,050.00.

(d) Wages - £292.00.

TOTAL: £11,966.40.

Mrs Donnelly

15. If Mrs Donnelly had been given due notice of termination, she would have received 12 weeks’ notice, or pay in lieu of notice. That is conceded by the respondent. Pay in lieu of notice is at the contractual rate of £165.00 per week, a total of 12 x £165.00 = £1,980.00.

16. In respect of Mrs Donnelly’s claim for redundancy pay, based on Mrs Donnelly’s age and length of service, the appropriate multiplier is 21.5. Mrs Donnelly’s gross wage of £187.50 produces a figure for redundancy pay as follows:-

21.5 x £187.50 = £4,031.25.

17. In respect of the Mrs Donnelly's claim for holiday pay, that is conceded by the respondent and the tribunal accepts that 5.6 days’ holiday pay was due and outstanding in respect of untaken leave at termination of this employment. Taking account of a daily nett pay figure, which the Tribunal computes at £33.00 per day, this produces a figure due for holiday pay of £184.80.

18. In respect of the Mrs Donnelly's claim for unpaid wages, the tribunal accepts that Mrs Donnelly worked a total of eight days, from Monday 16 February 2009 for the rest of that week and three days in the following week, without pay save for the £150.000 given in cash by the respondent on 25 February 2009. This represents eight days at £33.00 per day or £264.00 less £150.00, being the sum of £114.00 as a figure for unpaid wages.

19. Mrs Donnelly's claims are well-founded and the tribunal Orders the respondent to pay to Mrs Donnelly compensation on foot of the foregoing statutory provisions as follows:-

(a) Pay in lieu of notice - £1,980.00.

(b) Redundancy pay - £4,031.25.

(d) Wages - £114.00.

TOTAL: £6,310.05.

Interest

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

Chairman:

Date and place of hearing: 8 September 2009, Belfast.

Date decision recorded in register and issued to parties: