Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  06087/09

 

 

CLAIMANT:                      Rosaleen Quigley

 

 

RESPONDENT:                Rosa Ltd

 

 

DECISION

The unanimous decision of the tribunal is that the claimant’s claims are well-founded and the tribunal Orders the respondent to pay to the claimant compensation as follows:-

 

(a)      Pay in lieu of notice               £5,328.21

(b)      Redundancy pay                   £7,350.00

(c)             Holiday pay                          £1,763.00

(d)            Wages                                 £5,328.21

 

TOTAL            £19,769.42

 

 

Constitution of Tribunal:

Chairman:               Mr J V Leonard

Members:                Mr P Killen

                                Mr R Hanna

 

Appearances:

The claimant appeared and represented herself.

There was no appearance by or on behalf of the respondent.

 

Reasons

1.               The tribunal heard oral evidence from the claimant, there being no appearance by or on behalf of the respondent.  The tribunal noted the content of the documentation that was before it at hearing.  

 

The Issue

 

2.               In her claim to the tribunal dated 27 May 2009 and received by the Office of Tribunals on 2 June 2009, the claimant claimed breach of contract, redundancy payment and unauthorised deduction of wages.  There was no response made to the claim.  The issue to be determined by the tribunal was whether or not the claimant’s claims as set out in the claim form and pursued at hearing were well-founded.  If so, the appropriate order to be made by the tribunal had to be determined.

 

The Tribunal’s Findings of Fact

 

3.               In consequence of the evidence before it, the tribunal on the balance of probabilities determined the following material facts:-

 

(a)      The claimant’s employment with the respondent company commenced in September 1991.  The employment was summarily terminated with effect from 30 April 2009.  The claimant’s job was as an office manager/administrator.  There were written terms and conditions of employment.  These provided that for an employee of more than 10 years’ service a period of notice of termination of employment of three months had to be given by the employer.  In this employment (although the claimant appeared to understate her wage in her oral evidence to the tribunal) the tribunal is satisfied from the further documentary evidence in the case that the respondent has accepted that the claimant's nett wage per month prior to termination was £1,776.07.  The reason for this is that the respondent had requested the respondent’s accountants, Messrs Daly Park & Company, to prepare a schedule of salary and redundancy pay due to the claimant upon termination of employment.  That schedule was inspected by the tribunal.  At no stage did the respondent take issue with the preparation of that schedule and with the figures contained therein; these figures include a declaration of a nett wage in respect of the claimant’s employment at a figure of £1,776.07 per month.  Accordingly the tribunal has based any applicable computations upon that nett wage figure. 

 

(b)            Also uncontroverted was the claimant's assertion that she was due 21.5 days’ holiday pay at termination of employment and the tribunal accepts that to be the case.  At the date of termination of employment the claimant was aged 49 years and she had completed 17 years’ service. 

 

(c)             The tribunal was not apprised of any additional material facts and the tribunal’s decision is reached on the basis of the information placed before the tribunal both oral and documentary and on the basis of the statutory provisions applicable to the facts, as mentioned below. 

 

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.

 

5.               The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 is applicable in relation to breach of contract. In relation to annual leave, Regulation 13 of the Working Time Regulations (Northern Ireland) 1998 as amended by the Working Time (Amendment) Regulations (Northern Ireland) 2007 applies. 

 

6.               In relation to redundancy pay, Article 170 of the 1996 Order provides for the right to a redundancy payment.  Article 174 of the 1996 Order specifies that where the requirements of a business for an employee to carry out work of a particular kind have ceased or diminished, then the employee is to be deemed dismissed by reason of redundancy. Article 197 of the 1996 Order provides for computation of the amount of the redundancy payment with reference to the age and length of service of an employee, subject to the statutory maximum weekly amount which at the time of termination of this employment stood at a figure of £350.00.

 

The Tribunal’s Decision

 

7.       If the claimant had been given due notice of termination on foot of the contractual provisions applicable, she would have received three months’ notice, or pay in lieu of notice.  Pay in lieu of notice would have been at the contractual rate of £1,776.07 per month, a total of £5,328.21. 

 

8.       In respect of the claimant's claim for redundancy pay, the tribunal finds that the claimant was dismissed by the respondent on grounds of redundancy and the tribunal awards compensation accordingly.  Based on the claimant's age and length of service, the appropriate multiplier is 21. Taking account of the statutory maximum weekly amount of £350.00 produces a figure for redundancy pay as follows:-

 

21  x  £350.00  =  £7,350.00

 

9.       In respect of the claimant's claim for holiday pay, the tribunal accepts the claimant's evidence that 21.5 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 £82.00 per day, this produces a figure due for holiday pay of £1,763.00.

 

10.     In respect of the claimant's claim for unpaid wages, the tribunal accepts the claimant's evidence which, taken together with the other evidence, means that the claimant was not paid any salary from this employment for the entire months of February, March and April 2009 until the date of dismissal, 30 April 2009. This represents a total of three months’ unpaid wages.  Taking wages at £1,776.07 per month, this produces a figure for unpaid wages of £5,328.21.

 

11.     The claimant’s claims are well-founded and the tribunal Orders the respondent to pay to the claimant compensation on foot of the foregoing statutory provisions as follows:-

 

(a)      Pay in lieu of notice              £5,328.21

(b)      Redundancy pay                  £7,350.00

(c)      Holiday pay                         £1,763.00

(d)           Wages                                          £5,328.21

 

TOTAL         £19,769.42

 

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

 

 

 

 

Chairman:

 

 

Date and place of hearing:         29 September 2009, Belfast.

 

 

Date decision recorded in register and issued to parties: