Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/01151_10IT.html
Cite as: [2010] NIIT 1151_10IT, [2010] NIIT 01151_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1151/10

CLAIMANT: Julius Nagy

RESPONDENT: Dermot Mc Larnon t/a O’Neill Arms Hotel

Constitution of Tribunal:

Chairman (sitting alone): Mr Palmer

DECISION

The decision of the tribunal is that the claimant is awarded £1,400.00, being the amount of a redundancy payment due to him.

Appearances:

The claimant represented himself.

The respondent did not appear. He did not enter an appearance to the proceedings and was not, by virtue of rule 3 (4) of the Industrial Tribunals Rules of Procedure, entitled to take part in the proceedings.

Order of 11 August 2010

1. On 11 August 2010 it was ordered that this case and the case of Joseph Ramos v Mr Dermot Mc Larnon (Case Ref; 1464/10) be considered and heard together. A separate decision will be issued in Mr Ramos’ case.

The Claim

2. The only claim being made is in respect of a redundancy payment.

Evidence

3. The claimant gave evidence and also produced a copy of the letter, dated 18 January 2010, referred to below.

Findings of Fact

4. The claimant, who was born on 8 March 1978, was employed by the respondent as a Bar Manager, from the second week of October 2006 until he was suddenly dismissed on 18 January 2010. On 17 January 2010 the respondent telephoned the claimant. He told the claimant that they needed to talk and invited the claimant to meet him the next day. The claimant did so and the respondent handed him a letter, dated 18 January 2010, stating inter alia

“Further to the meeting which took place on 18 January 2010, I now write formally to confirm that your employment is being terminated by reason of redundancy and you will leave our employment on 18 January 2010.

As you will no doubt be aware, the trading performance of the hotel has been disappointing for a sustained period and the hotel has been making losses for a significant period of time as a result of this. We now find ourselves in the position where these losses cannot be funded any longer and, regrettably, we have no choice other than to close the hotel. Unfortunately, a consequence of this is that all employees of the hotel are being made redundant.”

5. The claimant lodged his claim in respect of a redundancy payment on 20 April 2010. The claimant, therefore, satisfies the provision contained in Article 199 (1) (c) of the Employment Rights (Northern Ireland) Order 1996 (the Order of 1996). Article 199(1) provides as follows:

“An employee does not have the right to a redundancy payment unless, before the end of a period of six months beginning with the relevant date-

(a) the payment has been agreed and paid,

(b) the employee has made a claim for the payment by notice in writing given to the employer;

(c) a question as to the employee’s right to, or the amount of, the payment has been referred to an industrial tribunal, or

(d) a complaint relating to his dismissal has been presented by the employee under Article 145.”

The Statutory Grievance Procedures

6. (1) In his claim form to the tribunal, which was completed by a solicitor acting for him at the time, the claimant was asked whether he, “raised all, part or none of the subject matter of [his] complaint in writing with the respondent”. The answer given was “All”. The next question was whether he had “allowed at least 28 days between the date [he] put his complaint to the respondent and the date” of sending the claim to the tribunal. The answer to this was “N/A”. I gave the claimant the opportunity of obtaining a copy of his complaint to the respondent from the solicitor, but he was unable to do so. However, I have come to the conclusion that the raising of a grievance was unnecessary in this instance.

(2) The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (the Regulations of 2004), state, insofar as relevant, that, ”Neither of the grievance procedures applies where the grievance is that the employer has dismissed…..the employee

(3) In Allen v Murdoch UKEAT/0369/09, a GB case decided by the Employment Appeal Tribunal (the EAT), it was held that, for the purposes of the grievance procedure, no distinction can properly be drawn between an unfair dismissal and a redundancy dismissal and, therefore, a redundancy dismissal, like an ‘ordinary’ dismissal, is excluded from the grievance procedures by virtue of a GB provision in the same terms as regulation 6(5) of the Regulations of 2004.

(4) In the Allen case the claimants (of which there were three) claimed unfair dismissal, redundancy payments, holiday pay and unpaid wages. The question arose as to whether the latter three claims were justiciable, as the statutory grievance procedure had not been followed. The claim in Allen, relevant to the proceedings before me, is the redundancy one. The question before the EAT is set out in the judgement at paragraph 18, as follows:

“Thus the question, it seems to me, is whether any or all of the three rejected claims [the claims had been rejected by the Employment Judge under the equivalent to the provision contained in Article 19(3) of the Employment (Northern Ireland) Order 2003] fall within the rubric of reg. 6(5): is the claimants’ grievance that the employer dismissed them, such that the statutory grievance procedure requirements are disapplied.”

(5) - At paragraphs 20 and 21 it is stated:

“20. The right to a redundancy payment arises, under s.135 (1) (a) [the equivalent to Article 170(1) (a) of the Order of 1996], where an employee is dismissed by the employer by reason of redundancy and dismissal for this purpose is defined in s. 136(1) [Article 171(1)] in the same terms as it is for unfair dismissal in s. 95(1) of the ERA [Article 127(1)]. In the present case the Claimants contend that they were dismissed when the public house at which they worked suddenly closed. There was no longer a requirement for employees to work behind the bar. They were redundant within the meaning of s. 139(1) [Article 174(1)].

21. In these circumstances, it seems to me, no distinction can properly be drawn between an actual unfair dismissal and an actual redundancy dismissal for the purposes of reg. 6(5). In both situations the Claimant’s grievance is about her dismissal.”

Conclusions on the Findings of Fact

7. I am satisfied that the claimant was abruptly made redundant by the respondent on 18 January 2010 and so find.

8. Article 198(1) and (2) of the Order of 1996 provides that any question arising as to the right of an employee to a redundancy payment shall be referred to and determined by an industrial tribunal and for the purposes of such a reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.

9. Independent of my finding at paragraph 7 above, I further conclude, on the basis that the statutory presumption referred to above has not been rebutted, that the claimant was made redundant by the respondent on 18 January 2010.

Amount of the Redundancy Payment.

10. At the date of termination the claimant was aged 31. His gross wage was £381.06 per week. The maximum amount, in respect of a week’s pay, that I am permitted to award for the purpose of calculating a redundancy payment is £350 (see the Employment Rights (Increase of Limits) Order (Northern Ireland) 2009). The claimant had four years’ completed service. I, therefore, award him £1,400.00.

11. This is a relevant decision for the purposes of the Industrial tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 24 August 2010, Belfast.

Date decision recorded and issued to parties:

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