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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McDonald v Dermot McLarnon t/a O'Neill Ar... [2010] NIIT 00415_10IT (03 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/00415_10IT.html
Cite as: [2010] NIIT 415_10IT, [2010] NIIT 00415_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 415/10
CLAIMANT: Susanne McDonald
RESPONDENT: Dermot McLarnon t/a O’Neill Arms Hotel
DECISION
The decision of the tribunal is that the respondent is hereby ordered to pay to the claimant a total sum of £2,436.00 in respect of statutory redundancy payment. The claim against Gerard McLarnon is dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Ms J Turkington
Appearances:
The claimant appeared and represented herself.
The respondent had not lodged a response form and did not appear at the hearing.
The Claims
The claimant brought the following claim before the tribunal:-
1. A claim for a statutory redundancy payment.
The Issues
The issues to be determined by the tribunal were:-
2 (1) Whether the claimant’s employment was terminated by reason of redundancy and whether the claimant was therefore entitled to a statutory redundancy payment and, if so, the amount of such statutory redundancy payment.
(2) Whether the claim against Gerard McLarnon should be dismissed since he was declared bankrupt before this claim was lodged.
Disposal of the claim in the absence of the respondent
3. The respondent did not appear at the hearing. The respondent had not presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Sources of Evidence
4. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.
Facts of the Case
Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-
5. The claimant whose date of birth is 9 August 1943 started her employment with the respondent on 6 May 2002. The claimant worked at the O’Neill Arms Hotel, Toomebridge as a receptionist and front desk manager. The claimant never received a statement of main terms and conditions of her employment.
6. The claimant worked 40 hours per week and was paid £5.80 per hour.
7. The claimant’s employment was terminated by the respondent on 18 January 2010. Just after lunch-time on that date, Dermot McLarnon asked the claimant to meet with him and he told the claimant that the business was ceasing to trade with immediate effect. The claimant left the premises that evening after putting up notices to the effect that the hotel business had ceased trading.
8. The claimant received a letter from Dermot McLarnon dated 18 January 2010 confirming that her employment was being terminated by reason of redundancy with effect from that date. The claimant was also given a form to complete in order to claim a redundancy payment from Redundancy Payments Branch.
9. The respondent asked the claimant to return to the hotel on Friday, 23 January 2010 to receive her final pay.
10. The claimant did not receive any statutory redundancy payment from the respondent.
11. The claimant did not send any written complaint to the respondent in respect of the respondent’s failure to pay a statutory redundancy payment.
Statement of Law
12. Under article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), an employer shall pay a redundancy payment if an employee is dismissed by reason of redundancy. By article 174 of the 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 the fact that the employer has ceased to carry on the business for the purposes of which the employee was employed.
13. The statutory grievance procedure is not applicable in this case – see the judgment of the EAT in the case of Mrs J M Allen & others v Mr A Murdoch UKEAT/0361/09/LA in which Judge Peter Clark confirmed that a claim for a statutory redundancy payment was excluded from the statutory grievance procedure by [the equivalent of Regulation 6(5) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004].
14. Under Article 258(3) of the Insolvency (Northern Ireland) Order, tribunal proceedings cannot be commenced or continued against a bankrupt without the leave of the High Court.
Conclusions
15. The tribunal had no hesitation in concluding that the claimant’s employment was terminated by reason of redundancy in view of the clear indication from the respondent that the business was ceasing to trade.
16. In light of the judgment of the EAT in the Allen case referred to above, the tribunal concluded that it does have jurisdiction to hear this claim despite the claimant not sending a grievance letter.
17.
The claimant is therefore
entitled to a statutory redundancy payment as follows:-
1.5 weeks gross pay for each full year of continuous employment during which
the claimant was aged over 41.
1.5 multiplied by £232.00 per week multiplied by 7 years = £2,436.00.
18. The respondent is therefore ordered to pay to the claimant a statutory redundancy payment of £2,436.00.
19. Following the hearing in this case, the tribunal received correspondence from the Trustee in Bankruptcy of Mr Gerard McLarnon. This correspondence confirmed that Mr Gerard McLarnon was declared bankrupt by the High Court on 30 October 2009.
20. Having received this correspondence, the Office wrote to the claimant indicating that the Chairman proposed to dismiss the claim against Mr Gerard McLarnon unless the claimant raised an objection to this proposed course of action. No such objection was received. There was no evidence before the tribunal indicating that the leave of the Court had been obtained before the claim against Mr Gerard McLarnon was lodged, as required by article 258(3) of the Insolvency (Northern Ireland) Order. Accordingly, the claim against Mr Gerard McLarnon is hereby dismissed.
21. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 28 May 2010, Belfast.
Date decision recorded in register and issued to parties: