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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Meehan v Paul Heaney T/A Paul Heaney Pl... [2010] NIIT 510_10IT (27 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/510_10IT.html
Cite as: [2010] NIIT 510_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 510/10
CLAIMANT: Caroline Meehan
RESPONDENT: Paul Heaney T/A Paul Heaney Plumbing and Heating
DECISION
The decision of the tribunal is that the claimant is entitled to a redundancy payment, the respondent shall pay the claimant £945.00.The tribunal does not have jurisdiction to entertain the claimant’s claim breach of contract claim for payment in lieu of notice in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limit for presenting a claim. The claimant’s breach of contract claim is dismissed.
Constitution of Tribunal:
Chairman (Sitting Alone): Ms Bell
Appearances:
The claimant appeared and represented herself.
The respondent did not appear and was not represented.
1. The claimant in her claim complained that she had not received a redundancy payment or proper notice from the respondent.
2. The respondent in his response confirmed that he did not intend to resist the claimant’s claims.
3. The claimant confirmed at hearing that she was employed by Mr Paul Heaney and the title of the respondent is accordingly now amended from ‘Paul Heaney Plumbing and Heating’ to ‘Paul Heaney T/A Paul Heaney Plumbing and Heating’.
Issues
4. The issues for the tribunal were:
(i) Is the claimant entitled to a redundancy payment?
(ii) Has the tribunal jurisdiction to entertain the claimant’s claim for pay in lieu of notice in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limit for presenting a claim? That is:
· Is it in time? If not,
· Was it not reasonably practicable for it to be presented in time, and, was it presented within such further period as the tribunal considers reasonable?
If so,
(iii) Did the claimant receive proper notice from the respondent?
Evidence
5. The tribunal considered the claim, documentation handed by the claimant, letter of 23 March 2010 from the respondent to the Office of the Industrial Tribunals, and heard oral evidence from the claimant. The tribunal also considered a letter received by the Office of the Industrial Tribunals from the claimant on 7 May 2009 following the hearing stating that she sent her letter requesting notice pay to the respondent within 3 months.
Findings of Fact
6. The claimant, born on 22 February 1984, was employed by the respondent as an administration assistant from 31 May 2005 until 9 November 2009 when the respondent informed her that he could no longer afford to pay her and terminated her employment without notice. The respondent confirmed to the claimant in a letter dated 9 November 2009 that due to the current economic climate the company was experiencing a marked decrease in workload which had reduced considerably more than expected and had led to severe restrictions in cash-flow and ultimately to this decision.
7. The claimant was paid £1170 gross per month by the respondent being £270 gross per week. The claimant has not received a redundancy payment from the respondent following termination of her employment or payment in lieu of notice.
8. The claimant sought other employment and began a new job on 23 November 2009.
9. The claimant sought advice from the Labour Relations Agency following termination of her employment by the respondent and was advised over the telephone that she had a right to a redundancy payment and pay in lieu of notice. The claimant gave evidence that she was informed that the time limit for submitting both of these claims was six months.
10. The claimant wrote to the respondent on 7 February 2010 seeking a redundancy payment and notice pay and stated therein that she had a time limit of six months before submitting a formal claim to the ‘Labour Relations Agency’.
11. The claimant’s claim to the industrial tribunal was received on 10 March 2010.
The Law
12. Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his if the employee is dismissed by the employer by reason of a redundancy.
13. Under Article 174 of the 1996 Order an employee who is dismissed shall be taken to be dismissed by reason of a redundancy if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him, or to carry on that business in the place where the employee was so employed, or, the requirements of that business for employees to carry out work of a particular kind, or 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.
14. Article 197 of the 1996 Order sets out how the amount of a redundancy payment shall be calculated.
15. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an industrial tribunal if the claim arises out of or is outstanding on termination of his employment.
16. Article 7 of the 1994 Order provides that an industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented to the industrial tribunal –
(a) within the period of 3 months beginning with the effective date of termination of the contract giving rise to the claim; or
(b) where there is no effective date of termination ,within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated; or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.
17. Under Article 118B of the Employment Rights (Northern Ireland) 1996 an Employer is required to give minimum notice to terminate the contract of employment of a person of not less than one weeks’ notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.
Application of Law to the Facts
18. The tribunal is satisfied from the claimant’s undisputed oral and documentary evidence, supported by the respondent’s letter that the claimant was dismissed by reason of redundancy, the requirement of the respondent’s business for employees to carry out work of a particular kind, having ceased or diminished or being expected to cease or diminish. On termination of her employment the claimant had three complete years of service, during which she was over 22 years of age and one complete year of service during which she was below 22 years of age. Accordingly the claimant is entitled to a redundancy payment calculated as follows:-
3 x £270 x 1 = £810
1 x £270 x 0.5 = £135
Total £945
19. Article 118 of the 1996 Order implies into an employee’s contract of employment a statutory minimum period of notice to be given to terminate the contract. The claimant’s breach of contract claim for pay in lieu of notice to compensate her for her loss as a result of the respondent not providing her with her proper notice entitlement was received by the Office of the Industrial Tribunals outside the time limit of three months set out under Article 7 of the 1994 Order. The claim was received by the Office of the Industrial Tribunals four months after the 9 November 2009, the claimant’s effective date of termination and last date upon which the claimant worked for the respondent. Accordingly the tribunal must decide whether it was not reasonably practicable to present the claim to the tribunal within the three month time limit, and if satisfied of this, whether it was then presented within such further period as the tribunal considers reasonable.
20. It is the claimant’s duty to show precisely why it was that she did not present her complaint. The tribunal notes that the claimant sought advice as to her rights from the Labour Relations Agency, and gave evidence that she was advised that a six month time limit applied to both her potential claims. Ignorance of one’s rights will rarely be an acceptable reason making it not reasonably practicable for not presenting a claim in time. A claimant is generally expected to make suitable enquiries as to their rights, and more so, where a claimant has sought advice, ignorance of the time limits for submission of a claim to the industrial tribunal will rarely be acceptable as a reason for delay because the claimant is put on inquiry as to the time limits. In this case the claimant has suggested that her advisors were at fault. Advisors are generally assumed to know time limits and be aware of the necessity of presenting claims in time and case law indicates, particularly where advice has been obtained from what might be considered to be a ‘skilled advisor ‘in a professional sense, fault on the part of an advisor will not necessarily be an acceptable reason for delay. The tribunal is not in any event satisfied on a balance of probabilities that there was in fact fault on the part of advisors in this case but consider it more likely that there was some general confusion on the claimant’s part as to the advice she received, in particular in view of the claimant in subsequent correspondence to the respondent when seeking notice pay having referred to having six months before submitting a formal claim to the ‘Labour Relations Agency’ rather than, to the industrial tribunal.
22. Upon consideration of all the evidence before it the tribunal is not persuaded in all the circumstances of this case that it was not reasonably practicable for the claimant to present her breach of contract claim within the required time limit. The tribunal accordingly does not have jurisdiction to entertain the claimant’s breach of contract claim for pay in lieu of notice in view of the provisions of Article 7 of the 1994 Order in respect of time limits for presenting such claims.
Conclusion
23. The claimant is entitled to a redundancy payment under Article 170 of the 1996 Order, the respondent shall pay the claimant a redundancy payment of £945.00. The tribunal does not have jurisdiction to entertain the claimant’s breach of contract claim for payment in lieu of notice in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limit for presenting a claim. The claimant’s breach of contract claim is dismissed.
24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.
Chairman:
Date and place of hearing: 7 May 2010, Belfast
Date decision recorded in register and issued to parties