Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 671/08

CLAIMANT: James Ryan

RESPONDENT: Emerald Inns (Ireland) Limited (in administration)

DECISION

The unanimous decision of the tribunal is that the claim be dismissed.

Constitution of Tribunal:

Chairman: Mr Davey

Members: Mrs Kearney

Mrs Heaney

Appearances:

The claimant did not appear nor was he represented.

The respondent did not appear and was not represented.

Reasons

1. There was no appearance by either party. It had been indicated by the administrator managing the respondent’s affairs and business that there was no objection to the claimant continuing the proceedings but that it was not intended that there would be any attendance at the hearing by or on behalf of the respondent. The Redundancy Payments Branch of the Department for Employment and Learning had been advised that the matter was to be dealt with, but made no representations and did not appear. The claimant had been advised of the date of the hearing on 28 January 2009. He had made no request or application for a postponement and did not appear. Having allowed a period in excess of half an hour from the time for which the claimant had been called, the tribunal considered it appropriate to deal with the matter in the absence of the parties, having first considered the information contained in the claimant’s originating application and in the respondent’s response.

2. The tribunal had accepted complaints from the claimant in respect of unfair dismissal, breach of contract (notice pay) and holiday pay (insofar as it related to a breach of contract). The claimant, in his claim form, averred that he had been dismissed. However, the respondent denied that the claimant had been dismissed, claiming that he had, in fact, resigned. The respondent, in the response, suggested that the claimant was not an employee of the respondent company having been a director and shareholder. It was also suggested in the response that even if he was an employee he had not been employed for a sufficient length of time.

3. There were clearly issues for the tribunal as to whether the claimant had been an employee of the company, whether, if he had been an employee, he had been employed for long enough to satisfy the minimum requirements to give rise to a right not to be unfairly dismissed under the Employment Rights (Northern Ireland) Order 1996, and whether he had, in fact, been dismissed at all. The question of whether or not he was entitled to notice pay would depend on those three issues being resolved in the claimant’s favour. The claimant was also claiming holiday pay but had given no indication in his claim form as to the nature and extent of his holiday entitlement under the terms of his contract of employment or as to how much of his holiday entitlement he had already taken.

4. Having carefully considered all the information available to it the tribunal concluded that it had insufficient information to enable it to make a finding that the claimant had been an employee, or whether he had been employed for a sufficient length of time to give rise to rights under the Employment Rights (Northern Ireland) Order 1996. Nor was the tribunal in a position to make a firm determination as to whether the claimant had been dismissed or had resigned. It is for the claimant, to satisfy the tribunal on these issues. He has failed to do so and, accordingly, the claim for unfair dismissal is dismissed.

In the absence of a finding as to whether or not the claimant was dismissed the tribunal can make no finding in relation to notice pay and accordingly that claim is dismissed also.

There was no evidence at all before the tribunal at all in relation to the claimant’s entitlement to holiday pay. Again the claimant has failed to discharge the burden of proof and his claim for holiday pay is dismissed.

There were no other claims before the tribunal for determination.

Chairman:

Date and place of hearing: 5 May 2009, Belfast

Date decision recorded in register and issued to parties: