Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/426_10IT.html
Cite as: [2010] NIIT 426_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 426/10

CLAIMANT: William Thomas Lucas (Deceased)

RESPONDENT: 1. Fisher Metal Group Limited

(in administrative receivership)

2. Fisher Metal Engineering LLP

(formerly known as WR Fisher LLP)

3. Department for Employment and Learning

DECISION

(A) None of the claims against Fisher Metal Group Limited (“the old employer”) is
well-founded. Accordingly all of those claims are dismissed.

(B) All of the revised claims against Fisher Metal Group LLP (“the new employer”) are well-founded. It is ordered that the new employer shall pay the following sums to the estate of the claimant:-

(1) the sum of £2,975 in respect of a redundancy payment;

(2) the sum of £3,789 in respect of notice pay; and

(3) the sum of £5,413 in respect of unpaid wages; and

(4) the sum of £920 in respect of accrued but unpaid holiday pay.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Ms N Wright

Dr D Mercer

Appearances:

The claimant’s estate was represented by Mr C Webster, Solicitor, of McFarland, Graham McCombe.

There was no appearance on behalf of either of the employers.

The Department was represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitors Office.

REASONS

1. Sadly, William Stanley Lucas (referred to below as “the claimant”) died before the commencement of these proceedings. The claimant’s widow, Mrs Carol Lucas, is now his personal representative. No personal representative had been appointed at the time of commencement of these proceedings. Accordingly, for the avoidance of any doubt, the tribunal has appointed Carol Lucas as the appropriate person for the purposes envisaged in Article 248(4) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

2. The old employer never attempted to present any response to these proceedings. The new employer did present a response, but that response was not presented within the appropriate time limit. While the question of whether or not the response should be accepted was still under consideration, the new employer (which, up to then, had been represented by Russells Solicitors, of Great Victoria Street, Belfast) disengaged from these proceedings.

3. We received oral testimony from Mr Darrell Lucas, the brother of the claimant. We also received brief and helpful oral testimony from Ms Angela Fyers.

4. We also saw various documents, including bank statements of the claimant, correspondence from Fisher Metal Group Limited (which was sent to the claimant in June 2009), a letter dated 12 October 2009 which was sent by the administrative receiver of the old employer, a P45 which was issued to the claimant in October 2009 and a copy of the claimant’s claim (dated 25 September 2009) for payments from the National Insurance Fund.

5. From the evidence which we saw and heard, we are satisfied that the claimant had been employed, as contracts manager, in “Fisher’s” business, at 1 Hallstown Road, Ballinderry, Lisburn, from 18 February 2002 until the latter half of 2009. We are satisfied that he was born on 19 August 1964. We are satisfied that, at the date of leaving, he was entitled to £38,000 gross pay per year.

6. We are satisfied that the relevant entity (the “Fisher’s” business at Hallstown Road) was the subject of a TUPE transfer in May 2009. We are satisfied that, before that transfer, the old employer was the claimant’s employer and that, immediately after that transfer, the new employer was the claimant’s employer. We are satisfied that, at the date of the claimant’s redundancy, he was employed by the new employer, and that he had become so employed as a result of the legal effects of a transfer which was “relevant transfer” within the Transfer of Undertakings (Protection of Employment) Regulations. We are satisfied that, both before and after the relevant transfer, the claimant carrying out the same work, at the same premises, under the same immediate supervision, and in connection with the same circle of customers.

7. We are satisfied that the claimant was dismissed by reason of redundancy. We are satisfied that no redundancy payment was made to him, either by the old employer or by the new employer. We are satisfied that he was not given due notice of his dismissal, and that he was not paid any notice pay. We are satisfied that the new employer owed him a sum in respect of unpaid wages.

8. Ultimately, Mr Webster limited the claimant’s claims to the claims specified above; and he limited them to the extent specified above. (Those revisions were necessary and appropriate because of the limitations of the available evidence). We are satisfied that each of those revised claims is well-founded. We are also satisfied that the claimant’s estate is entitled to all of the sums specified above.

9. In September 2009, the claimant had made applications for payments from the National Insurance Fund, in respect of redundancy pay, notice pay, unpaid wages and accrued but unpaid holiday pay. He made those claims to the Department, in the Department’s role as statutory guarantor (in respect of redundancy pay and in respect of certain other debts). Those applications were refused. These proceedings included appeals against those refusals.

10. At the main hearing of these proceedings, no evidence was presented in favour of those statutory appeals. Accordingly, those appeals are dismissed. However, it has been agreed between Mr Webster and the Department that the outcome of these appeals will have no bearing on the outcome of any statutory applications which may be made on behalf of the estate of the claimant in future (in the Department’s role as statutory guarantor) arriving out of any possible failure on the part of the new employer to comply with the obligations which have been imposed upon it by this Decision.

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

Chairman:

Date and place of hearing: 21 October 2010, Belfast.

Date decision recorded in register and issued to parties:

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