Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   6104/09

 

 

 

CLAIMANT:                      Kerry Gates

 

 

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 pay the claimant £2,012.04.

 

 

Constitution of Tribunal:

Chairman:              Ms Bell

Members:              Mr Grant

Mrs Kennedy

 

 

Appearances:       

The claimant appeared in person. 

The respondent did not appear and was not represented.

1.               The claimant in her claim complained that she had not received notice, outstanding wages, payment in lieu of untaken holidays on termination of her employment, or a redundancy payment 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 was dismissed because 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, documentation received from the claimant and heard the claimant’s oral evidence.

 

Findings of Fact

         

5.             The claimant who was born on 22 January 1988, commenced employment with the respondent on 23 November 2006 as an office junior and she worked a lying week at the beginning of her employment.  The claimant was paid £280.00, gross per week being £227.90 net as supported by payslips produced.

 

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 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 that “unless there are exceptional circumstances, you may not carry your holiday entitlement forward into the next holiday year.”  The claimant’s statement of particulars also provided for her to receive one weeks’ notice of termination of her employment.

7.             In around August 2008 Mr John McGurk a Director of the respondent company, agreed for the claimant to carry over five days’ holiday entitlement to the 2009 holiday year in view of her forthcoming wedding.

 

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 work on, which she agreed to do because she was led to believe the company would be sold, that her job would be safe and that she would be paid for this work.

 

9.             The claimant receive a cheque dated 4 February 2009 from the respondent on
6 February 2009 for £227.90 in respect of wages, after lodgement this cheque was returned to her by her bank marked “referred to drawer.”  The claimant has not received payment from the respondent for these wages.

 

10.         The claimant worked for the respondent until 20 February 2009 as supported by her P45, but did not receive payment for one week’s wages of £227.90 expected on
13 February 2009 and £227.90 expected on 20 February 2009.

 

11.         The claimant has not received any redundancy payment from the respondent.

 

 

 

The Law

 

12.       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 week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

 

13.           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.

    

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

 

15.           Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 and 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 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.

 

Applying the Law to Facts Found

 

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

 

Notice

 

18.           While 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 two weeks into the claimant’s contract of employment with the respondent, the claimant having two years continuous employment at her effective date of termination on 20 February 2009, but she did not receive proper notice and is entitled to two weeks net pay being £455.80 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 as follows;

(i)       2 years continuous employment x ½ x 280 = £280.00.

 

Wages

 

20.     The respondent has breached the claimant’s contract of employment in failing to pay her on termination of her employment the one week’s wages of £227.90 for the lying week worked, one week’s wages for the week ended 6 February 2009 in respect of which the respondent’s cheque was returned, one week’s wages for the week ended 13 February 2009 and one week’s wages for week ended 20 February 2009 and that the claimant has suffered an unlawful deduction in respect thereof.  The respondent is ordered to pay the claimant £911.60 in respect thereof.

 

Holidays

 

21.           The respondent in breach of the claimant’s contract of employment has failed to pay her five days’ holiday pay for holidays carried over to the 2009 holiday year due to her forthcoming wedding and three days accrued leave for 2009 up to the effective date of termination.  The respondent shall pay the claimant eight days holiday pay at £45.58 per day being £364.64.

 

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 and in lieu of untaken holidays and that the claimant is entitled to a statutory redundancy payment.

 

Summary of Compensation Awarded

 

Notice                               £455.80

Wages                              £911.60

Holiday Pay                       £364.64

Redundancy Payment        £280.00

 

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

 

         

 

 

 

 

Chairman:

 

 

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

 

 

Date decision recorded in register and issued to parties: