Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/06858_09IT.html
Cite as: [2010] NIIT 06858_09IT, [2010] NIIT 6858_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 06858/09

CLAIMANT: Dennis Weir

RESPONDENT: Robert Campbell

DECISION

The unanimous decision of the tribunal is that the respondent do pay to the claimant the following sums namely £4158.00 by way of a basic award, £300 in respect of holiday pay and £250 in respect of outstanding wages. Making a total of £4708.00

Constitution of Tribunal:

Chairman: Mr. M Davey

Members: Mrs. A Boreland

Mr. J E Martin

Appearances:

The claimant appeared in person.

The respondent had filed a response but did not attend the hearing.

REASONS

1. The claimant’s evidence was that he had worked for the respondent for 9 full years as of 27 April 2009. On that day, a Monday, he contacted the respondent with a view to getting instructions for work. There was no reply. On Monday evening the respondent contacted him asking him how long he had been in employment and then giving him nine week’s notice. This state of affairs was subsequently confirmed by letter indicating that the claimant’s notice period of 9 weeks would commence on Friday 1 May 2009 and finish on 3 July 2009. The basis of this decision was expressed to be a lack of work, a state of affairs which was not disputed by the claimant. The claimant duly served out his notice. On 7 July 2009, subsequent to the termination of his employment, he wrote to the respondent requesting his redundancy payment, his lying week’s wages and any holiday pay which was due.

The claimant’s evidence was that he had worked a lying week and was therefore entitled to a week’s wages at the conclusion of his employment. His holiday arrangements ran from January to December. During the course of 2009 he had had two day’s holiday on 1 and 2 January 2009, a week (5 working days) at Easter, and the two May bank holidays. The claimant received his ordinary wages during the course of his notice period. The claimant’s weekly take home pay was £250 which the Tribunal calculates to represent a gross wage of £308 per week. The claimant was born on 11 April 1958.

2. There was no dispute that the claimant was dismissed by reason of redundancy. The respondent, in the response filed in the matter, conceded this and conceded that a redundancy payment was due. The respondent also conceded that the holiday pay and other monies were due.

The claimant had been able to obtain employment immediately following the termination of his employment with the respondent at a wage slightly in excess of that paid by the respondent.

3. The procedures followed in relation to the claimant’s redundancy did fall short of what would normally be expected. However, in the tribunal’s view the claimant’s dismissal would have occurred in just the same manner and with the same timing if satisfactory procedures had been used. Accordingly the dismissal, in that regard, is to be treated, by virtue of Article 130A of the Employment Rights (Northern Ireland) Order 1996 as not unfair. However, that provision is expressly provided to be subject to Article 130A(1) which provides that an employee who is dismissed is regarded as unfairly dismissed if the statutory procedures set out in the Employment (NI) Order 2003 have not been complied with. In this case there was no preliminary (Step One) letter issued to the claimant and accordingly the procedures have not been compiled with. The claimant is entitled to a basic award equivalent in every respect to the redundancy payment which he sought and which was conceded to be due. The claimant was employed by the respondent for a total of 9 full years during all of which he was above the age of 41. He is entitled to 1½ week’s wages for each complete year of service above that age. The claimant’s gross wage was below the statutory maximum provided for and accordingly the claimant’s basic award amounts to 9 x 1½ x £308.00 = £4158.00.

4. The claimant is entitled to one week’s net wages in respect of his lying week namely £250.

5. The claimant was entitled to a total of 28 days holidays in the calendar year 2009. As his employment was terminated on 3 July 2009 he was entitled to just over one half of that entitlement or 14.1 days. Under the Working Time Regulations portions of the day are rounded up accordingly. Accordingly, the claimant is entitled to 15 days holiday of which he had already taken 9. His outstanding entitlement is therefore 6 days at £250 per week = £300.

Recoupment

6. No question of recoupment arises.

Interest

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

Chairman:

Date and place of hearing: 13 January 2010, Belfast.

Date decision recorded in register and issued to parties:

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