Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 5847/09         

 

 

 

CLAIMANT:                      Clive Grahamslaw

 

 

RESPONDENTS:              (1) John Agnew Plastering Services

                                           (2) Department for Employment and Learning

 

 

 

DECISION

 

(1)            The claim against the first respondent, John Agnew is dismissed for want of jurisdiction.

 

(2)      The tribunal declares that the claimant is entitled to a redundancy payment, notice pay and holiday pay as set out below.

 

(3)      The claimant is not entitled to receive payment in respect of arrears of pay as these post date the date of the employer’s Insolvency.

 

 

 

Constitution of Tribunal:

 

Chairman (sitting alone): Mrs M Watson      

 

 

 

Appearances:

 

The claimant represented himself.

 

The first respondent did not appear and was not represented.

 

The second respondent was represented by Mrs Patricia Baird.

 

 

 

Issue

1.       Is the claimant entitled to a redundancy payment, arrears of pay, holiday pay and notice pay as claimed in his originating claim form?   If so, how much, and who is liable for any payment?

 

 

 

Sources of evidence

 

2.               The claimant gave oral evidence and called Mr Gordon Nelson as a witness.
Mrs Baird gave oral evidence also and both parties presented documentary evidence.

 

Preliminary matters

 

3.1     The claimant was employed as a plumber by Mr Agnew, the first respondent from in or about July 2004.

 

3.2     In early December 2008, Mr Agnew telephoned the claimant and informed him that his employment was terminated because he, Mr Agnew, had been adjudged bankrupt. The bankruptcy had in fact been ordered on 10 November 2008.

 

3.3    As the first respondent has been declared Insolvent, the tribunal does not have jurisdiction to hear this claim without leave of the High Court which has not been sought. The first respondent is therefore dismissed from these proceedings.

 

3.3     The claimant applied to the second respondent on 24 February 2009 for monies he claimed he was entitled to receive arising from the termination of his employment due to the insolvency of the first respondent. ( Article 201(1) (b) of the Employment Rights (Northern Ireland) Order 1996 [ERO]).

 

3.4     This application was rejected on 7 April 2009 by the second respondent because of information that had been provided to it by an officer of the Insolvency Service relating to the dates of the claimant’s employment by the respondent.

 

3.5     The claimant lodged this claim by way of an appeal against the refusal by the Department of his application to them. This claim is being treated by this tribunal as being a reference from the Department under Article 205 (1) (a) and (b) of the ERO.

 

Tribunal’s Determination

 

4.        From the documentary and oral evidence given, the tribunal made the following          

findings of fact;

 

(i)              The claimant was more that 41 years of age throughout his employment with Mr Agnew which began in or about July 2004.

 

(ii)             The date of termination of his employment was 10 November 2008, the date of the insolvency of Mr Agnew and is the ‘appropriate date’ under Art. 227.

 

(iii)            At the appropriate date the claimant’s gross pay was £350 per week, £280 net.

 

(iv)           The statutory cap on a weekly wage at the relevant date was £330.

 

(v)             The claimant was entitled to one week’s notice for each year of his employment (Article 118).

 

(vi)           At the appropriate date the claimant had 6 days holiday outstanding.

 

(vii)          Article 227 ERO, provides that the Department shall pay debts owed by the employer to the employee ‘on the appropriate date’. With regard to arrears of pay, Article 230(a) provides that the appropriate date for such sums is the date of the Insolvency. The arrears of pay claimed by the claimant relate to a subsequent period and so are not payable by the Department. 

 

(viii)    The tribunal calculated the claimant’s entitlement to be as follows,

 

Redundancy pay      = £330 x 4 x 1.5                                    =  £1980

 

Notice pay               =  £280 x 4                                           =  £1120

 

Holiday pay             =  £56 x 6                                             =  £  336

                                                                                              

Total entitlement                                                                = £ 3436

 

 

 

 

Chairman:

 

 

Date and place of hearing: 12 February 2010, Belfast.               

 

 

Date decision recorded in register and issued to parties: