Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   05231/09

06520/09

 

 

 

 

CLAIMANT:                      Alison Farquhar

 

 

RESPONDENT:                Canopies Ireland Limited

 

 

 

DECISION

The unanimous decision of the tribunal is that the respondent failed to give the claimant proper notice, pay her in lieu of untaken holidays and wages due and that the claimant is entitled to a statutory redundancy payment.  The respondent shall play the claimant £3,890.86.

 

 

Constitution of Tribunal:

Chairman:                                  Ms M Bell

Members:                                  Mr M Grant

                                                  Mrs E Kennedy

 

 

Appearances:                           

The claimant appeared in person. 

The respondent did not appear and was not represented.

 

1.                         The claimant in her claims complained that she had not received notice, outstanding wages, payment of lieu of untaken holidays or a redundancy payment on termination of her employment when the respondent ceased to trade.

 

2.                         The respondent confirmed in its response that it did not intend to resist the claimant’s claims and that the claimant had been dismissed as the respondent could no longer afford to trade.

Issues

3.                         The issues for the Tribunal are:

 

-        whether the respondent failed to give the claimant proper notice?

-        whether the respondent failed to pay the claimant wages due to her?

-        whether the respondent failed to pay the claimant in lieu of untaken holidays due to her?

-        whether the claimant is entitled to a redundancy payment?

 

Evidence

 

4.                         The Tribunal considered the claim, response, documents received from the claimant and heard the claimant’s oral evidence.

 

Findings of Fact

 

5.                         The claimant who was born on 1 October 1978 commenced employment with the respondent on 26 August 2004 as marketing manager and worked a lying week at the beginning of her employment.  The claimant was paid £360.00 gross per week being £283.10 net.

 

6.             In 2006 the claimant received a statement of particulars of employment which

provided for 24 days’ annual holiday  with pay in the holiday year which ran as per the calendar year.  The contract confirmed that on termination of employment the claimant would be entitled to annual holidays, or pay in lieu thereof, based on the length of service in that holiday year, less any holidays already taken, it also provided “unless there are exceptional circumstances, you may not carry your holiday entitlement forward into the next holiday year”.  The claimant’s statement of particulars provided for her to receive one week’s notice of termination of her employment.

 

7.                          In or around October 2008 Mr John McGurk, the Company Director of the respondent company agreed for the claimant to carry over five days holiday entitlement to the 2009 holiday year because the claimant was due to take maternity leave early that year.

 

8.                          On 6 February 2009 the claimant was given a letter from the respondent confirming that the company had “ceased trading today and you are being made redundant”.  Mr McGurk, however, asked the claimant to continue working which she did until 16 February 2009 to help explain the position to customers and in the belief that there was a hope of her employment continuing if the company was bought over and that she would be paid for her work.  The Tribunal accepts the claimant’s evidence that she worked for the respondent until 16 February, despite the P45 prepared by the respondent being dated
6 February 2009.

 

9.                          The claimant received a cheque dated 4 February 2009 from the respondent on 6 February 2009 for £283.10 in respect of wages, but after lodgement the cheque was returned to her by her bank marked “refer to drawer”.  The claimant has not received payment from the respondent for wages due to be paid for the week ending 6 February 2009, one week’s wages to be paid for the week ending 13 February 2009, payment for one day’s work on 16 February 2009 due to be paid on or around 20 February 2009 and her payment for the lying week worked at the commencement of her employment.

 

10.                       The claimant had not received any redundancy payment from the respondent.

 

The Law

 

11.           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.

 

12.                       Article 170 of the 1996 Order 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 redundancy.  Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on that business for the purposes of which the employee was solely employed by him.

 

13.                       Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.

 

14.                       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.

 

15.                       Article 45 of the 1996 Order provides for a worker’s right not to suffer unauthorised deductions from wages by his employer.  A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.

 

16.                       Under 23 of the 1996 Order, as amended, at the time of the claimant’s dismissal, for the purpose of calculating a redundancy payment, the amount of the weeks pay shall not exceed £350.00.

 

Applying the Law to Facts Found

 

17.                       On consideration of all the evidence before it the Tribunal is satisfied of the following:

 

Notice

 

18.           Whilst the claimant’s contract of employment only provided for her to receive one week’s notice of termination of her employment, Article 118B of the 1996 Order implies a minimum notice requirement of four weeks in the claimant’s contract of employment with the respondent, the claimant having four years continuous employment at her effective date of termination on 16 February 2009, the claimant did not receive proper notice and is entitled to four weeks net pay being £1,132.40 in lieu thereof.

 

Redundancy Payment

 

19.           The claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent having ceased trading and the claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows;

 

4 years continuous employment x 1 x £350.00 (Statutory Maximum)                                                                                                              = £1,400.00

 

Wages

 

20.           The respondent has breached the claimant’s contract of employment in failing to pay her on termination of her employment one week’s wages of £283.10 for the lying week worked on commencement of her employment, her weeks wages of £283.10 due for payment on or around 6 February 2009 in respect of which the respondent’s cheque was returned, her one weeks wages of £283.10 due for payment in or around 13 February 2009 and one day’s pay of £56.62, due for payment in or around 20 February 2009 and that the claimant has suffered an unlawful deduction from her wages in respect thereof.  The Tribunal orders the respondent to pay the claimant £905.92 in respect of unpaid wages.

 

Holidays

 

21.           The respondent, in breach of the claimant’s contract of employment, failed to pay her five days’ holiday pay for holidays carried over to the 2009 holiday year due to her pending maternity leave and three days accrued leave for 2009 up to her effective date of termination.  The respondent shall pay the claimant eight days’ holiday pay at £56.62 per day being £452.96.

 

Conclusion

 

22.           The Tribunal finds that the respondent in breach of the claimant’s contract of employment failed on termination of her employment to give the claimant her statutory minimum notice entitlement, pay the claimant outstanding wages, pay her in lieu of untaken holidays and that the claimant is entitled to a statutory redundancy payment.

 

Summary of Compensation Awarded

 

Notice                                             £1,132.40

Wages                                            £  905.92

Holiday Pay                                     £   452.96

Redundancy Payment                      £1,400.00

 

23.           This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

 

         

Chairman:

 

 

Date and place of hearing:         26 January 2010, Belfast.

 

 

Date decision recorded in register and issued to parties: