Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/704_08.html
Cite as: [2009] NIIT 704_8IT, [2009] NIIT 704_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00704/08

CLAIMANT: Andrew Nicholas Mayne

RESPONDENT: Leonard Kirk T/A L K Electrical

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed. The respondent shall pay the claimant a total of £4,735.50 being a redundancy payment of £2,904.00 and pay in lieu of notice of £1,831.50. The claimant’s claim of failure to give a statement of employment particulars is dismissed following its withdrawal.

Constitution of Tribunal:

Chairman: Ms Bell

Members: Mrs Gilmartin

Mrs McReynolds

Appearances:

The claimant was represented by Mr Mearns, Solicitor of John Ross & Son.

The respondent appeared in person.

1. The claimant complained in his claim that he had only received two and a half week’s redundancy payment, he did not believe that a genuine redundancy situation existed, that he had been unfairly selected for redundancy, was unfairly dismissed and did not receive notice. The claim was subsequently amended to include a claim for an award against the respondent for failure to give written particulars of employment. At hearing however the claimant confirmed his agreement that he was dismissed for a genuine redundancy reason, he withdrew his claim for an award against the respondent for failure to give written particulars of employment, and confirmed that he sought only a statutory redundancy payment and notice pay.

ISSUES

2. The issues for the tribunal are whether:-

(1) The claimant is entitled to a statutory redundancy payment.

The claimant’s dismissal was procedurally unfair.

The claimant is entitled to pay in lieu of notice of termination of his employment.

EVIDENCE

3. The tribunal considered the claim, a bundle of documents from the claimant, and oral evidence from the claimant and the respondent.

FINDINGS OF FACT

4. The claimant born on 19 February 1979 began an apprenticeship with Ards Technical College in September 1997 and was placed with the respondent. In September 1998 the respondent employed the claimant as an apprentice electrician and the claimant remained in the respondent’s employment until he was made redundant on 19 March 2008 when the respondent ceased his business following the non payment of an amount of money he expected for a large job. On the

19 March 2008 the claimant had worked for half a week for which he was due half a weeks pay. At the time of dismissal the claimant received gross weekly pay of £452.00 being £333.00 net. The claimant commenced new employment at a higher rate of pay on 15 April 2008.

5. The claimant received pay and payslips from the respondent on 21 March 2008 for the weeks ending 16 March 2008 and 30 March 2008. The payslip for the week ending 16 March 2008 was for £638.81 made up of £452.25 being one week’s holiday pay for the forthcoming Easter holidays the following week and 32 hours pay of £385.92 for the previous week worked by the claimant. The payslip for the week ending 30 March 2008 was for three week’s pay being £1,016.46.

6. The respondent failed to comply with statutory dismissal procedures applicable in relation to the claimant’s dismissal, however even had these been followed the claimant’s job clearly would not have continued beyond 19 March 2008.

THE LAW

7. Redundancy

Under Article 170 of the Employment Rights (Northern Ireland) Order 1996 an employer shall pay a redundancy payment to any employee of his if the employee is dismissed by the employer by reason of redundancy. The definition of redundancy for the purpose of the Order is set out at Article 174 and includes where the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him. How a redundancy payment shall be calculated is set out at Article 197.

Statutory Minimum Procedures

The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal.

By virtue of Article 126 of the 1996 Order an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined, however under Article 130A(1) an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,

(b) procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

There is provision at Article 17 of the 2003 Order for an uplift to be applied to awards in proceedings before an Industrial Tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee where it appears to the Industrial Tribunal that a claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, in which case it shall (subject to paragraph (4) therein) increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.

Schedule 2 of the 2003 Order outlines the tribunal’s jurisdictions to which Article 17 applies and includes Article 198 of the 1996 Order (Redundancy Payments).

Notice

Article 118(1) sets out minimum notice to be given by an employer to an employee to terminate the contract of employment of not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

Maximum amount of a week’s pay

Article 23 of the 1996 Order as amended at the time of the claimant’s dismissal provides for the purpose of calculating a basic award of compensation for unfair dismissal and a redundancy payment that the amount of a week’s pay shall not exceed £330.00.

APPLICATION OF LAW TO THE FACTS

8 Redundancy

The tribunal is satisfied from the claimant’s and respondent’s oral evidence that the claimant was dismissed by reason of a redundancy, the respondent having ceased to carry on his business for the purposes of which the claimant was employed.

9. On 19 March 2008 the effective date of termination, the claimant had two complete years of employment during which he was below 22 years of age and seven complete years of service during which he was over 22 years of age.

10. Accordingly the claimant is entitled to a redundancy payment calculated as follows:-

2 x £330 x 0.5 = £330

7 x £330 x 1 = £2,310

Total Redundancy Payment £2,640

11. Whilst the tribunal is satisfied that the respondent had a fair reason for dismissal it finds that the dismissal was procedurally unfair by virtue of the respondent’s failure to follow the required dismissal procedure. It is however clear that the claimant’s employment would not have continued even had the correct procedures been followed.

Basic Award

The redundancy payment awarded is set off against the basic award reducing it to nil.

Compensatory Award

The tribunal does not consider that any loss arising from the dismissal is attributable to the employer’s actions and as such finds that it would not be just or equitable to make a compensatory award.

Adjustment

The tribunal in accordance with Article 17 of the 2003 Order increases the claimant’s award by 10%, being £264 for the respondent’s failure to comply with the statutory dismissal procedures applicable. The tribunal does not consider it just or equitable to increase it by any further amount.

Notice

The tribunal is satisfied that the respondent has failed to give the claimant the required minimum notice of termination of his employment as per Article 118 of nine weeks. The claimant having received one week’s holiday pay and an additional two and half week’s wages over and above the wages owed to him for work done following termination of his employment, the tribunal finds that the claimant is entitled to a balance payment in lieu of notice of five and half week’s pay.

5.5 x £333 = £1,831.50

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

Chairman:

Date and place of hearing: 5 May 2009, Belfast.

Date decision recorded in register and issued to parties: