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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Pearson v Versatile Windows (N.I.) [2010] NIIT 07459_09IT (12 March 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/07459_09IT.html
Cite as: [2010] NIIT 7459_9IT, [2010] NIIT 07459_09IT
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THE INDUSTRIAL TRIBUNAL
CASE REF: 07459/09
CLAIMANT: Richard Pearson
RESPONDENT: Versatile Windows (N.I.)
DECISION
The decision of the tribunal is that the claimant is awarded £5,775.00 in respect of a redundancy payment.
Constitution of Tribunal:
Chairman (sitting alone): Mr Ian Wimpress
Appearances:
The claimant was unrepresented and appeared on his own behalf
The respondent did not appear and was not represented
The Claim and the Response
1. The claimant brought a claim for a redundancy payment arising from the termination of his employment by the respondent. The respondent responded by letter dated 23 December 2009 in which it was stated that the respondent had been insolvent since June 2009.
Sources of Evidence
2. The tribunal received a small bundle of documents from the claimant and heard oral evidence from him.
The Facts
3. The claimant's date of birth is 12 October 1971. The claimant was employed by the respondent as a UPVC fabricator from October 1988 to 11 July 2008. He worked a 39 hour week and was paid £370.00 gross per week.
4. On 8 May 2008, the foreman, Gary McMaster, told the claimant that he was to be made redundant. The claimant was also told hat he would be placed on short time work for 12 weeks and that he only required to come in for two days per week due to a shortage of work.
5. On 11 July 2008, the claimant's employment was terminated. Mr McMaster gave him his P45 together with two days pay and two weeks holiday pay. The claimant asked Mr McMaster when he would get his redundancy pay and
Mr McMaster replied that the claimant would need to see John Patterson, the proprietor about his redundancy. The business then closed for two weeks holiday. After the holidays the claimant attempted to contact Mr. Patterson but without success. The claimant contacted the Citizens Advice Bureau which advised him to send a grievance letter to the respondent.
6. The claimant also instructed solicitors, Messrs Basil Glass & Co who wrote to the respondent on 21 August 2008 regarding the failure to make a redundancy payment to the claimant. No reply was received and the solicitors sent a reminder to the respondent on 3 September 2008.
7. On 3 September 2008, the claimant also sent a grievance letter to
Mr Patterson in the following terms:
“Re Grievance
I am writing to tell you that I wish to raise a grievance. I believe that I was your employee and that the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply. If you do not agree that I was your employee or believe that the regulations do not apply, please confirm this in writing immediately.
Given that my employment has terminated, I offer to use the modified grievance procedure. Please can you confirm your acceptance of my offer to use this procedure in writing.
My grievance is about the following circumstances:
My employment was terminated due to my being made Redundant on 11/07/08 and I have still not received the Statutory Redundancy Payment due to me.
I
look forward to receiving payment or written explanation of your reasons
for non-payment within 14 days or no later than 28 days of the
date of this letter.”
8. On 5 September 2008, the respondent replied to the solicitors as follows:
"We are in receipt of your letter dated 21 August 2008 and would confirm that Richard's employment was terminated in July, having been put on short-time for twelve weeks, owing to a shortage of work.
We have calculated his redundancy payment which entitles him to £6,303.00. The reason this has not been paid yet is due to a shortage of funds at the present time, and will be paid as soon as possible when the funds become available.
Richard was kept in employment with Versatile Windows for one year longer than he was needed earning £20,000.00 in wages in the hope that work would increase but unfortunately this did not happen.
We hope that this matter will be resolved in the near future."
9. No payment was received by the claimant and he issued proceedings on 19 November 2009. The claim form was received in the tribunal office on 21 November 2009. The respondent did not respond until 23 December 2009 when it sent a letter to the tribunal office which was not received by the tribunal office until 11 January 2010 some 7 days after the 28 day period for filing a response elapsed. The letter advised that the respondent ceased trading at the end of June 2009 due to insolvency and that the redundancy was being dealt with by the Redundancy Payments Office which was awaiting confirmation of the respondent's insolvency.
The Law
10. The relevant statutory provisions are found in Articles 170, 174,197,198 and 199 of the Employment Rights (Northern Ireland) Order 1996.
170. (1) An employer shall pay a redundancy payment to any employee of his if the employee—
(a) is dismissed by the employer by reason of redundancy, or ...
174. (1) For the purposes of this 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 –
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed by him, or
(b) the fact that the requirements of that business—
(i)
for employees to carry out work of a particular kind,
or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.
(2) For the purposes of paragraph (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in sub-paragraphs (a) and (b) of that paragraph would be satisfied without so treating them).
(6) In Paragraph (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason.
197. (1) The amount of a redundancy payment shall be calculated by—
(a) determining the period, ending with the relevant date, during
which the employee has been continuously employed,
(b) reckoning backwards from the end of that period the number
of years of employment falling within that period, and
(c) allowing the appropriate amount for each of those years of
employment.
(2) In paragraph (1)(c) “the appropriate amount” means—
(a) one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one,
(b) one week's pay for a year of employment (not within sub-paragraph (a)) in which he was not below the age of twenty-two, and
(c) half a week's pay for each year of employment not within sub-paragraph (a) or (b).
198. —(1) Any question arising under this Part as to—
(a) the right of an employee to a redundancy payment, or
(b) the amount of a redundancy payment, shall be referred to
and determined by an industrial tribunal.
(2) For the purposes of any such 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.
199.—(1) An employee does not have any right to a redundancy payment unless, before the end of the 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.
(2) An employee is not deprived of his right to a redundancy payment by paragraph (1) if, during the period of six months immediately following the period mentioned in that paragraph, the employee—
(a) makes a claim for the payment by notice in writing
given to the employer,
(b) refers to an industrial tribunal a question as to his
right to, or the amount of, the payment, or
(c) presents a complaint relating to his dismissal under
Article 145, and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.
(3) In determining under paragraph (2) whether it is just and equitable that an employee should receive a redundancy payment
an industrial tribunal shall have regard to—
(a) the reason shown by the employee for his failure to
take any such step as is referred to in paragraph (2) within the period mentioned in paragraph (1), and
(b) all the other relevant circumstances.
11. Accordingly, in order to succeed in his claim for a redundancy payment it is necessary for the claimant to demonstrate that he has complied with Article 199 (1) (b) of the 1996 Order. To do this it is necessary for the claimant to make a claim for the payment by notice in writing given to the employer within 6 months of the relevant date. The relevant date in this context is 11 July 2008 being the date on which the claimant’s employment terminated. I am satisfied that the claimant’s letter of 3 September 2009 constitutes compliance with the requirements of Article 199 (1) (b).
Award
12. Based on the claimant’s age which at the time of his dismissal was 36 and the statutory maximum week’s pay at that time (£350.00), I am satisfied that the claimant is entitled to a redundancy payment as follows:
£350.00 x 3 x 0.5 = £525.00
£350.00 x 15 x 1 = £5,250.00
Total Award £5,775.00
13. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 28 January 2010, Belfast
Date decision recorded in register and issued to parties: