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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McClean v KOB Ltd [2010] NIIT 07358_09IT (08 February 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/07358_09IT.html
Cite as: [2010] NIIT 7358_9IT, [2010] NIIT 07358_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7358/09
CLAIMANT: John McClean
RESPONDENTS: 1. KOB Ltd
2. Department for Employment & Learning
DECISION
The decision of the tribunal is that:-
(a) the claimant is entitled to a redundancy payment in the sum of £4,060;
(b) the claimant is entitled to holiday pay of £341.48; and
(c) the claimant is entitled to notice pay of £1,466.50.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
Appearances:
The claimant appeared in person and represented himself.
The first-named respondent did not appear and was not represented.
The second-named respondent was represented by Mrs Baird of DEL.
Facts
1. The claimant is 35 years of age. He was employed by the first-named respondent, KOB Ltd, from 2 October 1992 to 22 May 2009 when he was dismissed with immediate effect because of the financial difficulties faced by the first-named respondent. The first-named respondent has ceased trading, but has not been made insolvent within the terms of the Employment Rights (Northern Ireland) Order 1996.
2. At the date of dismissal the claimant’s gross weekly wage was £280 and his net wage £227.65.
3. The claimant makes claims for redundancy pay, holiday pay and notice pay. The claimant withdrew his claim of unfair dismissal. He is owed 71/2 days holiday pay. He received Jobseeker’s Allowance of £55.12 per week. On 20 July 2009 he commenced new employment, receiving £280 per week gross and £227.65 net.
4. After hearing the evidence of the claimant, I am satisfied his claims are well-founded. I make the following awards.
Redundancy pay
5. The claimant is entitled to 141/2 weeks redundancy pay based on his gross weekly wage. The claimant is therefore entitled to £4,060.
Holiday pay
6. The claimant is entitled to 71/2 days holiday pay. This is based on his net weekly wage. The claimant is therefore entitled to £341.48 in respect of holiday pay.
Notice pay
7. The claimant is entitled to 12 weeks notice pay based on his net weekly wage, of £2,731.80. From this must be deducted the Jobseeker’s Allowance he received during the notice period of £468.52 and earnings in the notice period of £796.78. The claimant is therefore entitled to £1,466.50 in respect of notice pay.
8. The claimant sought payment of the outstanding monies from DEL. DEL refused the application. DEL has no liability for claims of holiday pay and notice pay where the employer is not legally insolvent as defined in Article 228 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’). The employer in this case is not legally insolvent as defined in Article 228 and therefore DEL has no liability unless and until the employer becomes insolvent.
9. The claimant has a separate entitlement to seek redundancy payment from DEL if the employer is either legally insolvent or the claimant has taken all reasonable steps to recover the payment from the employer (Article 201 of the 1996 Order). In accordance with the provisions of Article 205 of the 1996 Order, I have determined the liability of the employer to pay the redundancy payment and I declare that the amount payable under Article 203 of the 1996 Order is £4,060.
10. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 16 December 2009, Belfast
Date decision recorded in register and issued to parties: