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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKenna v CM3 Ltd (in administration) [2009] NIIT 6730_09IT (16 December 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/6730_09IT.html
Cite as: [2009] NIIT 6730_09IT, [2009] NIIT 6730_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 06730/09
CLAIMANT: Martin McKenna
RESPONDENT: CM3 Ltd (in administration)
DECISION
The unanimous decision of the tribunal is that the claimant is entitled to a protective award of 90 day’s pay.
Constitution of Tribunal:
Chairman (Sitting Alone): Mrs Watson
Appearances:
The claimant did not appear and was not represented.
The respondent did not appear and was not represented.
Issue for determination
1. Did the respondent company comply with its statutory obligations under Article 126 of the Employment Rights (Northern Ireland) Order 1996 in relation to the redundancy of the claimant and if not, is the claimant entitled to a protective award?
Sources of evidence
2. The respondent company did not enter any response to the originating claim form but the Joint Administrators had written to the tribunal by letter dated 3 September 2009 consenting to the lifting of the statutory stay for any cases brought against the respondent arising from the termination of the employment of any of its 24 former employees.
3. The claimant also wrote to the tribunal to apologise as he was unable to attend the hearing and enclosing written submissions which were forwarded to the Joint Administrators.
4. The tribunal took these written representations into consideration when disposing of these proceedings in the absence of the parties under Rule 27 (5) and (6) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
Findings of fact
5. The claimant was one of 24 employees whose employment was terminated by reason of redundancy on 7 May 2009 when the business ceased trading.
6. Article 216 of The Employment Rights (Northern Ireland) Order 1996 requires employers who propose to make more than 20 employees redundant to consult with appropriate representatives at least 30 days (and up to 90 days) in advance of the first redundancies taking place. No such notice was given and no consultation took place before the claimant’s employment was terminated.
7. The claimant has made application to this tribunal under Article 127 of the 1996 Order because of this failure by the respondent to meet any of their statutory obligations in this case.
8. The tribunal find this application to be well founded.
9. Article 217(2) of the 1996 Order provides that the tribunal should make a protective order following such a finding. The protective period should be of such length ‘as the tribunal determines is just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with the statutory requirements, but shall not exceed 90 days.’
10. The tribunal has noted that the relevant circumstances to be taken into account are that the employees were:
(i) not consulted at any stage,
(ii) not provided with written reasons or proposals for dealing with the situation requiring the redundancies,
(iii) were not provided with any selection of representatives.
(iv) No discussions of any sort about the proposed redundancies took place and no ‘special circumstances’ defence under Article 217(6) has been advanced. The failure of the respondent to comply with its statutory obligations is total.
11. In the case of GMB -v- Susie Radin Ltd [2004} IRLR 400, Peter Gibson L.J. confirmed that the protective award is punitive in nature, and provided the following guidance to tribunals;
“… a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the tribunal consider appropriate”
12. Harvey on Employment Law at E2773 advises;
“Given that the focus is on the employer’s default, it follows that where there has been no consultation at all, then, in the absence of any mitigating factors, the normal consequence should be a protective award of the maximum 90 days simply on the ground that the employer has failed to discharge his statutory duties”
13. For these above reasons, the tribunal makes a protective award of 90 days.
Chairman:
Date and place of hearing: 18 November 2009, Belfast.
Date decision recorded in register and issued to parties: