Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/06194_09IT.html
Cite as: [2010] NIIT 06194_09IT, [2010] NIIT 6194_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6194/09

CLAIMANT: Czeslaw Indulski

RESPONDENT: Enda McCrory t/a McCrory Engineering

DECISION

The unanimous decision of the tribunal is that:

(1) the claimant is entitled to a statutory redundancy payment amounting to £1,482.97 , calculated as set out in this decision;

(2) the award is increased by £659.10 in respect of the respondent’s failure to provide a written statement of particulars of employment; and

(3) the claim in respect of notice pay is dismissed as out of time.

(4) A total payment of £2142.07 is due from the respondent to the claimant.

Constitution of Tribunal:

Chairman: Mr N Kelly

Members: Mrs V Walker

Mr J McKeown

Appearances:

The claimant was represented by Mr Abetnatur, of the South Tyrone Empowerment Programme Ltd.

The respondent did not enter a response within the statutory time-limit and did not appear.

THE ISSUES

1. The issues for determination were whether the claimant was entitled to a statutory redundancy payment on termination of his employment and whether he was entitled to a payment in lieu of notice.

RELEVANT FACTS

2. The respondent is a manufacturer of concrete batching plants based in Aughnacloy County Tyrone. The respondent does not appear to be a limited company. The title of the respondent is therefore amended to “Enda McCrory trading as McCrory Engineering”.

3. The claimant is a welder and was employed as such by the respondent from

6 November 2004 until 20 September 2008. He is from Poland and has limited English. His date of birth is 31 May 1958. He was never given a written contract or a written statement of terms and conditions. His basic gross weekly pay was £329.55.

4. On 15 September 2008, he was told that his last day of employment would be

19 September 2008. He was told that the steel drums he was producing were no longer required by customers. He was not offered alternative employment. He was paid no redundancy pay. He was given only four days notice and was not paid in lieu of notice.

5. He was unaware of his rights in relation to statutory redundancy payments and notice pay. He did not seek advice about these matters for some five months after the termination of his employment. At that point he spoke to South Tyrone Empowerment Programme (“STEP”) and lodged an internal grievance with the respondent on 24 February 2009.

6. On 19 June 2009, the claimant lodged his tribunal claim.

DECISION

7. The claimant is entitled to a redundancy payment calculated in accordance with Chapter V of the Employment Rights (Northern Ireland) Order 1996;

3 complete years of employment X 1.5 weeks = 4.5 weeks

4.5 weeks X £329.55 = £1,482.97

8. The internal grievance lodged on 24 February 2009 had the effect of extending the six month’s statutory time-limit for lodging a claim in respect of redundancy pay by a further three months. The tribunal claim on the 19 June 2009 was therefore in time in relation to statutory redundancy pay. However the time-limit for a claim in respect of notice pay is three months and therefore that claim was out of time before the grievance was lodged and time was not extended. Mr Abetnatur argued that time should be extended in this case given the claimant’s limited ability in the English language, and given the fact that he had not been advised of his rights by either his employer or by the Social Security Agency. The tribunal accepts that the claimant has limited ability in the English language. However the tribunal can see no good reason why the claimant did not seek advice earlier either from STEP, from the Citizens Advice Bureau, from the Labour Relations Agency, or from a solicitor within the three months initial time-limit. Explanatory leaflets are published by DEL in Polish and are widely available. The tribunal therefore concludes that it would have been reasonably practicable for a claim in respect of notice pay to have been lodged within three months of the date on which the claimant’s employment was terminated. The tribunal therefore does not extend time in relation to the claim in respect of notice pay and that claim is dismissed as out of time.

9. Under Article 27 of the Employment (Northern Ireland) Order 2003, the tribunal has power to impose a financial penalty in certain circumstances. Firstly the proceedings brought by the claimant must fall within the jurisdictions listed in Schedule 4 to the 2003 Order. That Schedule includes claims in respect of redundancy pay and therefore that requirement is satisfied in the present case.

10. Article 27(3) of the 2003 Order provides:

“(3) If in the case of proceedings to which this Article applies –

(a) the Industrial Tribunal makes an award to the employee in respect of the claim to which the proceedings relate and

(b) when the proceedings were begun, the employer was in breach of his duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order,

the tribunal shall, subject to paragraph (5), increase the award by the minimum amount and may if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.”

11. The minimum amount referred to in the 2003 Order is an amount equal to two weeks pay and the higher amount is the amount equal to four weeks pay. The amount of a weeks pay is to be calculated in accordance with Chapter IV of Part 1 of the Employment Rights Order.

12. The tribunal concludes that the appropriate award in the circumstances of this case is the minimum award of two weeks gross pay which amounts to £659.10.

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

Chairman:

Date and place of hearing: 18 January 2010, Belfast.

Date decision recorded in register and issued to parties:

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