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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Boal v Ashley Adams trading as Tempta... [2010] NIIT 463_10IT (24 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/463_10IT.html
Cite as: [2010] NIIT 463_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 463/10
CLAIMANT: Marlyn Boal
RESPONDENT: Ashley Adams trading as
Temptations Coffee Lounge
DECISION
It is the decision of the tribunal that the correct name of the respondent is that detailed above and the title of the proceedings is ordered to be amended accordingly.
The unanimous decision of the tribunal is that the claimant was dismissed on the grounds of redundancy. The respondent is ordered to pay to the claimant the sum of £3632.70.
Constitution of Tribunal:
Chairman (sitting alone): Ms M Sheehan
Appearances:
The claimant attended the hearing in person.
The respondent attended the hearing.
1. The claimant in her complaint lodged with the tribunal claimed that she had been dismissed without notice from her employment as a waitress on
5 November 2009 when the respondent ceased trading. The claimant indicated that there were outstanding wages owed to her together with payment due and owing in respect of unclaimed holidays. The claimant indicated that her working week was 37.5 hours per week. She had claimed JobSeekers Allowance since the termination of her employment. She indicated on the claim form that her claim was in respect of redundancy payment and breach of contract. It was clear the claim submitted was in respect of redundancy payment, holiday pay, final wages and payment in lieu of notice. No claim had been submitted or was being made in respect of unfair dismissal.
2. The respondent submitted a response to the claim, which had been served upon her. She agreed that the claimant had eleven years of service with the respondent, being paid for 22.5 hours per week at a gross hourly rate of £5.80. The respondent accepted in the response submitted that the claimant had been dismissed without notice. The respondent indicated that she did intend to resist the claimant’s claim in respect of the number of hours worked by the claimant weekly.
Issues
3. The issues for the tribunal to determine were
(a) the correct identity of the claimant’s employer at the time of dismissal,
(b) whether the respondent dismissed the claimant as a result of redundancy and if so, the amount of redundancy payment due to the claimant,
(c) whether the respondent employer was in breach of contract in failing to tender pay in lieu of notice and what damages if any the claimant was due in respect of such breach and
(d) what payment the claimant was due in respect of holiday leave accrued but not availed of by the 5 November 2009.
Sources of Evidence
4. The tribunal considered the documentation lodged with the Office of the Industrial Tribunals and Fair Employment Tribunal as well as the documentation produced at hearing by the respondent and claimant and the oral evidence given by the parties.
Facts
5. The tribunal having heard the evidence and considering all the documentation before it found the following facts: -
6. At the outset of the claimant’s employment she was employed as a waitress and as a full time employee. However from the summer of 2009 the claimant had reduced the number of hours worked per week to 22.5 hours. By the date of dismissal the claimant’s net weekly pay was claimed to be £109.45 and the gross £130.50. The claimant’s date of birth is 8 November 1951 and she commenced employment with the respondent in May 1998. Pay details were provided to the tribunal for the thirteen weeks previous to her dismissal on 5 November 2009, which enabled the tribunal to conclude on a balance of probabilities that those rates of pay were the actual rates of pay at the time of dismissal.
7. The claimant received no notice of the respondent’s intention to terminate her employment as the respondent’s business ceased when Northern Ireland Electricity shut off power to the business premises. The employment of all staff in the café, including the claimant, was terminated with effect from 5 November 2009. There was no evidence that any contract issued to the claimant contained a redundancy procedure. The respondent failed to tender to the claimant any payment in respect of notice pay – on the basis of her eleven years of service. The working week ran from Tuesday to Saturday with the business being closed on a Thursday. The claimant received no payment for the ten hours worked prior to the business closing on Friday 5 November 2009.
8. It was agreed by the parties that the holiday year ran from the 1 January to the 31 December. The entitlement was 28 days including six statutory days for full time employees. Holiday leave accrues pro rata for part time employees. By the 5 November 2009, the claimant had taken in total 12 days holiday.
9. The claimant has been unemployed from the 5 November 2009 and claiming JobSeekers Allowance.
10. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 ("the 1994 Order") provides at Article 3 that proceedings might be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (save damages for personal injuries) where the claim arises or is outstanding on the termination of the employee's employment. Thus, under this provision, an employee may bring a claim for pay in lieu of notice outstanding on termination of a contract, or indeed for any other contractual sum or sums claimed as properly due on termination. Article 118 of the Employment Rights (Northern Ireland) Order 1996 ["the 1996 Order"] provides that an employee is entitled to notice of termination of her employment, up to a maximum of twelve weeks if that employment is twelve years or more. Article 118(3) of the 1996 Order provides that this entitlement may be waived and paid in lieu of notice. Article 123 (5) provides that if an employer fails to give the notice required by Article 118 the rights conferred by Articles 199 to 122 (dealing with rights and payments during the notice period) shall be taken into account in assessing liability for breach of contract.
11.
The relevant legislation in
respect of redundancy payment entitlement is found at Articles 170, 171, 174
and 175 of the Employment Rights (Northern
Ireland) Order 1996.
15. In establishing a redundancy payment calculation, the tribunal is required to establish the "relevant date" pursuant to Article 180 of the 1996 Order. Article 197 of the 1996 Order provides the formula of calculation of a redundancy payment.
16. Article 190 of the 1996 Order provides that an employee does not have any right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending on the relevant date.
17. Article 199 of the 1996 Order provides for the time within which a claim for a redundancy payment must be made. Article 199 (1) provides that 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 195.
18. The claim in respect of holiday leave falls to be determined in accordance with the Working Time Regulations (Northern Ireland) 1998 as amended and
provides under Regulation 13A for a worker to have minimum leave in a year of 5.6 weeks from 1 April 2009 in the absence of specific contractual terms. The relevant regulations are Regulation 13, 14 and 16. For the purposes of the Working Time Regulations the worker’s leave year begins, where there are no applicable provisions of a relevant agreement, if the worker’s employment began after 23 November 1998, on the date on which that employment began and each subsequent anniversary of that date.
19. Under Regulation 14(2) of the 1998 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.
Conclusions Applying the Law to Facts Found
On consideration of all the evidence before it the tribunal is satisfied of the following:
20. Redundancy Payment
The claimant was dismissed from her employment as the respondent ceased to trade and that situation has remained unchanged since the date of dismissal. The claimant accepts that a genuine redundancy situation did exist. Accordingly the tribunal is entitled to assume in accordance with Article 174(1) (a) (ii) of the Employment Rights (Northern Ireland) Order 1996 that dismissal of the claimant was due to a cessation of work for the claimant and other similar employees. The provisions of Article 174 (1) (a) are satisfied.
21. The claimant was employed continuously by the respondent. The tribunal has no evidence before it to undermine the contention that she had a seamless history of employment. The claimant has therefore been employed in excess of two years and is entitled to a redundancy payment. (see Article 190 of the 1996 Order). The claimant was aged 46 years when she commenced her employment with the respondent and therefore is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows;
11 years continuous employment at 1 and a half weeks pay is
11 x £195.75 = £2,153.25
22. Notice
Article 118B of the 1996 Order implies a minimum notice requirement of eleven weeks into the claimant’s contract of employment with the respondent, the claimant did not receive proper notice of termination of her employment from the respondent and is entitled to eleven weeks net pay being
11x £109.45 = £ 1,203.95
23. Holidays
The respondent has failed to pay the claimant on termination of her employment payment in lieu of leave accrued due under her contract. The holiday year ran from 1 January to 31 December. The claimant usually worked three days per week and had accrued due holidays for approximately 10 out of twelve months of the holiday year, rounded up amounting to 17 days holiday accrued. The claimant accepted she had availed of 12 days holiday.
5.6 weeks x 3/5 x 10/12 = 16.80, rounded up = 17 days’ holiday less 12 days leaving a balance of five days
The respondent shall pay the claimant 5 days’ holiday pay at £43.50 per day being £217.50.
24. Wages
The respondent has breached the claimant’s contract of employment in failing to pay her on termination of her employment wages for the week ending 5 November 2009 during which she worked for the respondent or attended work prepared to carry out work for the respondent for ten hours. The claimant has suffered a loss, and the tribunal orders the respondent to pay the claimant £58.00 in respect of unpaid wages.
Conclusion
25. The claimant is entitled to a statutory redundancy payment, payment in lieu of her statutory minimum notice entitlement; holiday’s accrued but not availed of prior to termination and outstanding wages.
26. Summary of Compensation Awarded
Redundancy Payment £2,153.25
Notice £1,203.95
Holiday Pay £ 217.50
Wages £ 58.00
TOTAL £3,632.70
Recoupment
27. While the claimant did seek and received JobSeekers Allowance from the
5 November 2009 the provisions of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply to the statutory provisions under which the claimant’s award is being made.
28. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 19 May 2010, Belfast
Date decision recorded in register and issued to parties: