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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Robinson v Lee Lavelle ... [2011] NIIT 00495_10IT (05 December 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00495_10IT.html
Cite as: [2011] NIIT 00495_10IT, [2011] NIIT 495_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 495/10
496/10
CLAIMANTS: 1. Karl Robinson
2. Robert Shortt
RESPONDENTS: 1. Lee Lavelle
2. Paul Johnston
3. Belfast City Sight Seeing Ltd
4. Department for Employment and Learning (“the Department”)
DECISION
(A) All of the claims of the claimant, Karl Robinson (“Mr Robinson”), against Lee Lavelle and against Paul Johnston are well-founded and:
(1) It is ordered that those two respondents shall pay to Mr Robinson the sum of £1,920 in respect of unpaid wages.
(2) It is ordered that that those two respondents shall pay to Mr Robinson the sum of £1,260 in respect of holiday pay.
(3) It is ordered that those two respondents shall pay the sum of £350 to
Mr Robinson in respect of notice pay.
(4) It is declared that Mr Robinson is entitled to receive a redundancy payment of £900 from those two respondents.
(B) None of Mr Robinson’s claims against City Sight Seeing Ltd (“the Company”) is well-founded. Accordingly, all of those claims are dismissed.
(C) As already specified above, Lee Lavelle and Paul Johnston are liable to make a redundancy payment of £900 to Mr Robinson. Accordingly that claimant’s reference to this tribunal, pursuant to Article 205 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), is successful.
(D) The claimant’s Article 233 “complaint” [appeal] against the Department’s refusals to make payments in respect of wages, holiday pay and notice pay, is dismissed.
(E) All of the claims of the claimant Robert Shortt (“Mr Shortt”) against Lee Lavelle and Paul Johnston are well-founded and:
(1) It is ordered that those two respondents shall pay to Mr Shortt the sum of £1,280 in respect of unpaid wages.
(2) It is ordered that those two respondents shall pay to Mr Shortt the sum of £880 in respect of holiday pay.
(3) It is ordered that those two respondents shall pay £380 to Mr Shortt in respect of notice pay.
(4) It is declared that Mr Shortt is entitled to receive a redundancy payment of £1,200 from those two respondents.
(F) None of Mr Shortt’s claims against the Company is well-founded. Accordingly all of those claims are dismissed.
(G) As already specified above, Lee Lavelle and Paul Johnston are liable to make a redundancy payment of £1,200 to Mr Shortt. Accordingly, Mr Shortt’s reference to this tribunal, pursuant to Article 205 of the Order, is successful.
(H) Mr Shortt’s Article 233 appeal, against the Department’s refusal to make payments in respect of wages, holiday pay and notice pay, is dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
Each of the two claimants was self-represented.
Lee Lavelle was not entitled to participate in the proceedings (because he has not put in a response).
Paul Johnston was represented by Mr Michael Johnston.
The Company was not represented.
The Department was represented by Mr Peter Curran.
REASONS
1. Until Christmas 2009, Lee Lavelle (a respondent to these proceedings) and Paul Johnston (also a respondent to these proceedings) and Joe Lavelle (now bankrupt and formerly a respondent to these proceedings) ran a bus tour business in partnership together. That business (“the Partnership”) was an unincorporated partnership and traded as “Belfast City Sight Seeing”. The business ceased to operate at the end of 2009.
2. It was directed and agreed that the cases of both of these claimants should be heard together.
3. These two associated cases
are part of a multiple (group) litigation, in which various
ex-employees of the Partnership made claims against their former employers,
arising out of the collapse of the Partnership’s business at the end of 2009.
In the various cases which comprise this litigation, the ex-employees of the
Partnership made claims against their former employers in relation to unpaid
wages, unpaid holiday pay, notice pay and redundancy pay. Nearly all of those
claimants had also made applications to the Department, in the context of the
Department’s role as statutory guarantor, in respect of unpaid pay and in
respect of certain other unpaid employment debts.
4. Two lead cases were chosen in respect of this multiple litigation. One of those lead cases (Peter Burns, 1247/10) was the subject of a main hearing which concluded in May 2011. My decision in the Burns case was issued in July 2011.
5. When Mr Robinson and Mr Shortt commenced the proceedings in these cases, they named all of the partners in the Partnership as respondents to these proceedings. However, they subsequently withdrew their proceedings against Joe Lavelle. (Those proceedings were withdrawn for pragmatic reasons: Joe Lavelle had become bankrupt and, as a result, a question had arisen as to whether or not the proceedings could continue at all if Joe Lavelle continued to be a respondent).
6. The Company was added as a respondent in each of these two cases because there then seemed to be a potential issue in relation to the Transfer of Employment (Protection of Employment) Regulations (“TUPE”). However, during the course of the main hearing of these cases, no argument was made that TUPE applied in the circumstances of these cases.
7. In these proceedings, Mr Robinson makes claims in respect of allegedly unpaid wages, allegedly unpaid holiday pay, notice pay and redundancy pay. He makes those claims against Lee Lavelle and Paul Johnston or (as an alternative) against the Company. He made applications to the Department, in the Department’s role as the statutory guarantor in respect of certain employment debts, in relation to the allegedly unpaid wages and holiday pay, and in relation to the notice pay and redundancy pay. Those applications were unsuccessful. Accordingly, in these proceedings, Mr Robinson also appeals against those decisions of the Department.
8. In these proceedings, Mr Shortt makes claims (against Mr Lavelle and Mr Johnston or, in the alternative, against the Company) in respect of allegedly unpaid wages and holiday pay, and in respect of notice pay and redundancy pay. Like Mr Robinson, Mr Shortt made applications to the Department in relation to wages, holiday pay, notice pay and redundancy pay, and those applications were unsuccessful. Accordingly, in these proceedings, Mr Shortt also appeals against those decisions of the Department.
9. After the main hearing of these cases had been completed, Mr Michael Johnston delivered a note to the tribunal clerk, in which he made various factual assertions which, if true, might be relevant to the question of whether or not there was a TUPE transfer of the relevant business to the Company. However, it would be improper for me to take account of any representations which were not made available prior to the conclusion of the main hearing. Accordingly, in arriving at my conclusions and determinations in this case, I have taken no account of the Michael Johnston note.
10. Throughout his period of employment with the Partnership, there were substantial under-deductions, on the part of the Partnership, in respect of income tax which was due on Mr Robinson’s wages. Throughout that period, Mr Robinson was paid in cash.
11. Throughout his period of employment with the respondent, there were substantial under-deductions, by the Partnership, of income tax in respect of Mr Shortt’s wages. During much of his period of employment by the Partnership, Mr Shortt was paid in cash.
The liability issues
12. In this part of the Decision, I deal with the liability issues which arise in both of these associated cases.
13. For reasons which are explained below, I have reservations about the credibility of aspects of the evidence and factual contentions which have been made available to me by Mr Robinson, and I have reservations about the credibility of aspects of the evidence and factual contentions which have been presented to me by Mr Shortt. I have borne those reservations in mind in applying the legal principles which apply in relation to the liability aspects of these claims and appeals.
TUPE
14. The basic principle of the transfer of undertakings legislation (“TUPE”) is as follows. If there is a “relevant transfer” (within the meaning of TUPE), of a business or of a part of a business, from one employer to another, the effects, as a general rule, will be as follows. First, because of the transfer of the business, the transferee will become liable, in place of the transferor, in respect of any liabilities which the transferor had, towards any employees of the transferred entity, at the time of the transfer. Secondly, those employees will continue to be employed in that entity. Thirdly, a dismissal will often be unfair if the dismissal is connected with the transfer.
15. As already mentioned above, Mr Michael Johnston sent a note, for my attention, after the conclusion of the main hearing of this case. As has also already been noted above, I could not properly take account of representations which were received after the conclusion of the main hearing, and accordingly I did not do so.
16. However, I think it will be helpful to make two further comments in relation to that note. First, if I had taken the contents of the note into account, it would have had very limited, if any, evidential value. Secondly, if I had taken the contents of the note into account, and if (contrary to what I have just stated) the contents of the note did have significant evidential value, there still would probably have been no adequate evidential basis for any finding on my part that there had been a TUPE transfer from the Partnership to the Company. (In particular, it seems to be clear that there was never any transfer of any bus from the Partnership to the Company).
17. I note that the Department has not put forward any argument that there has been a TUPE transfer in this case. During the main hearing, Mr Michael Johnston did not argue that TUPE applied.
18. Against that background, and for those reasons, I consider that I have no adequate basis upon which I could conclude that there has been a relevant transfer, from the Partnership to the Company, of the entity to which these two claimants were assigned.
19. The implication of the latter conclusion is that any relevant liabilities (any liabilities of the employer) to these two claimants, or to either of them, in respect of wages, holiday pay, notice pay or redundancy pay, are liabilities of Lee Lavelle and of Paul Johnston.
Illegality
20. As already noted above, there have been under-deductions of income tax in respect of wages paid to these two claimants. In my view, there is adequate evidence that, as a result of those processes of under-deduction, each of the relevant contracts of employment was being performed illegally. However, in circumstances such as the circumstances of these two cases, when a contract is being performed illegally by the employer, a claimant will not thereby be deprived of his ability to sue on foot of the relevant contract unless he has “knowingly participated” in that illegal performance. (See Enfield Technical Services v Payne [2008] ICR 30. See also my Decision in Burns, at paragraphs 16-26 of that Decision).
21. In the present cases, there is no adequate evidence that either of the claimants knowingly entered into arrangements which to their knowledge were representing the facts of the employment relationship to be other than they really were. (See paragraph 43 of the Payne judgment).
22. Against that background, and for those reasons, I have concluded that the principle of illegality does not prevent me from entertaining the various claims of these two claimants.
The appeals
23. Because there has been no TUPE transfer, it is clear that any liability for wages, holiday pay or notice pay rests with Mr Lee Lavelle and Mr Paul Johnston. Neither of those individuals is formally insolvent, in the sense in which the term “insolvent” is used in the context of Article 228 of the Order. Accordingly, the Department has no power to make any payments to either of these claimants, in respect of unpaid wages, unpaid holiday pay or, in respect of notice pay. (See Article 227 of the Order). For that reason, the wages, holiday pay and notice pay appeals must be dismissed.
24. In each of these two cases, the relevant applicant made application to the Department, under Article 205 of the Order, for payment under Article 201 of the Order. In each instance, the relevant claimant claimed that his employer was liable to pay a redundancy payment to that claimant. As already noted above, each application to the department was unsuccessful. As a result, I am now dealing with a “reference” [appeal] made by each relevant claimant pursuant to Article 205.
25. In the context of each Article 205 appeal, the two questions which I have to determine are as follows:
(1) Any question as to the liability of the Partnership to pay the redundancy payment, and
(2) any question as to the amount of the sum payable by the Department in respect of that redundancy payment.
In other words, in broad terms, the issues to be determined (in the circumstances of these two cases) in the context of the Article 205 appeals are identical to the issues which have to be determined in relation to each relevant claimant’s redundancy pay claim against Lee Lavelle and Paul Johnston. (See below).
The redundancy pay claims
26. In the context of a claim against an employer for a redundancy payment, the issues which have to be decided are as follows:
(1) Was the claimant employed by the relevant employer?
(2) Was he dismissed by that employer?
(3) Was he dismissed because of redundancy?
(4) Had he been employed for at least two years at the time of his dismissal?
27. Issue (3) is not a difficult issue from each claimant’s point of view, because the effect of Article 198 of the Order is that, in the context of a tribunal claim against an employer in relation to a redundancy payment:
“… an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy. “
28. I am satisfied that the City Sight Seeing business which was being run by the Partnership ceased to exist on or about 30 December 2009. I am satisfied that both Mr Robinson and Mr Shortt were employed by the Partnership at that time, and that each of those claimants was dismissed because the Partnership’s business ceased to exist at that time. I am satisfied that that situation amounted to a redundancy situation. Finally, I am satisfied that, at the end of 2009, both Mr Robinson and Mr Shortt had been employed by the Partnership for at least two years.
29. Accordingly, both Mr Robinson and Mr Shortt are entitled to a redundancy payment.
The holiday pay claims
30. In relation to the holiday pay claims, the liability issues are as follows:
(1) Was the relevant claimant an employee of the Partnership at the end of December 2009? (I have already determined that issue in favour of each of these two claimants: see paragraph 28 above.)
(2) In December 2009, had the relevant claimant accrued holiday pay entitlements in respect of holidays which had not yet been taken by him?
31. Both Mr Robinson and Mr Shortt have established liability in respect of holiday pay. On the basis of their oral testimony, I am satisfied, in each case, as to the following. First, I am satisfied that (at the end of 2009) Mr Robinson had accrued holiday pay entitlements in respect of holidays which he had not yet taken. Secondly, I am satisfied to the same effect in relation to Mr Shortt.
The notice pay claims
32. Finally, I need to identify the liability issues which arise in respect of notice pay, and I must apply the relevant legal principles to the facts as found by me, both in the Robinson case and in the Shortt case.
33. I have already decided that each of these two claimants was employed by the Partnership in City Sight Seeing at the end of December 2009. I have also already decided that each of them was dismissed by reason of redundancy.
34. Accordingly, each of these two claimants has established liability in respect of notice pay if I am satisfied, on the balance of probabilities, that he was not given any advance notice of his dismissal, and that he was not given any pay in lieu of notice.
35. Both in relation to Mr Robinson and in relation to Mr Shortt, I am satisfied that the relevant claimant was not given any notice of dismissal and that he was not given any pay in lieu of notice. In arriving at those determinations, I have paid careful attention to each claimant’s oral testimony. However, in doing so I have also noted the media account of events which was contained in the bundle which the Department has produced for these cases.
36. Accordingly, each claimant has proven that his claim for notice pay is well-founded.
The amount of “compensation”
37. The amount of compensation payable to each claimant is as follows.
Karl Robinson
38. I considered Mr Robinson to be an unreliable witness in relation to some important matters of evidence: see below. That factor has to be borne in mind in considering his testimony on matters relating to the amount of compensation.
39. The Robinson “compensation” issues relate to:
(1) the amount which is due to Mr Robinson from Lee Lavelle and from Paul Johnston, and
(2) the amount of the payment which should be made to him by the Department in respect of redundancy.
40. My understanding is that there is no real prospect of Lee Lavelle or Paul Johnston being able to meet the amount of any award of compensation made in favour of this claimant against them. Accordingly, the issue as to the amount of any redundancy payment due to this claimant is a much more important compensation issue, for practical purposes, than any of the other compensation issues.
41. In order to arrive at conclusions in relation to the amounts payable to Mr Robinson, I have to determine the following issues:
(1) What was Mr Robinson’s gross weekly wage?
(2) What was the amount of any unpaid wages which were due to him at the time of dismissal? (See paragraph 57 below).
(3) How many days holidays had he accrued, but not yet taken, at the time of his dismissal? (See paragraph 59 below).
(4) What was his net weekly wage?
(5) What social security benefits did he receive, or what benefits were available to him, during his notice period?
(6) What was his age at the time of dismissal?
(7) How many complete years of service had he completed with the Partnership at the time of the dismissal?
42. According to the claimant, his agreed salary, when he began employment with the Partnership was £300 “net” per week.
43. Mr Robinson has no documentation to support those assertions. However, there is no documentary evidence which is unequivocally inconsistent with those assertions either. On balance, I accept that he was paid £300 per week. He was paid in cash. I do not accept that Mr Robinson ever had any binding agreement with the employer whereby his gross wages would exceed £300 per week.
44. Accordingly, for present purposes, I conclude that the claimant’s gross wage and net wage was £300 per week. That disposes of compensation issues (1) and (4), as set out above.
45. I am satisfied that the claimant was 58 years of age at the time of his dismissal. (See issue (6) above).
46. What was the claimant’s length of service with the Partnership? (See issue (7) above).
47. According to the claimant’s application to the Department, he had been employed by the Partnership from 23 October 2004 until January 2010. However, an “RD18” Statement of Account (in respect of National Insurance contributions), produced by Her Majesty’s Revenue and Customs in respect of Mr Robinson, shows the following. The RD18 does not record any contributions made in relation to any employment with the Partnership at any time during 2004/2005, or at any time during 2005/2006. Instead, in both years, contributions are recorded in respect of an employer which the RD18 refers to as “Gift F”. Furthermore, the claimant is recorded as having claimed Jobseekers Allowance on 13 September 2005.
48. The Partnership traded under the name “City Sight Seeing”. The RD18 records contributions in respect of City Sight Seeing, or in respect of persons associated with City Sight Seeing, and not in relation to any other employers, within the tax year 2006/2007, within the tax year 2007/2008, and within the tax year 2008/2009. During the course of his oral testimony, Mr Robinson accepted that the records in the RD18 “must be right” and also accepted that his period of continuous employment with the Partnership must have begun at some time during the tax year 2006/2007. However, he professed himself to be unable to identify precisely when his employment with the Partnership began during the course of that tax year.
49. The amount of contributions recorded in respect of Mr Robinson in 2006/2007 is relatively modest.
50. Against that background, I have decided that, for the purpose of calculating this claimant’s compensation, it is appropriate to regard him as having started with the Partnership on 1 February 2007.
51. Accordingly, this claimant must be taken, for the purpose of calculating notice pay, and redundancy pay, to have been employed by the Partnership for more than two years, and for less than three years.
52. This claimant says, and I accept, that he was paid no wages in respect of any period after 15 November 2009.
53. This claimant says, and I accept, that (by the time of the closure of the business) he had accrued holiday pay entitlements in respect of 21 days holidays which he had not yet taken.
54. I have no evidence that this claimant was employed by any employer other than the Partnership, at any time during January 2010. However, Jobseekers Allowance, at £65 per week, would have been available to him during that period.
55. On the basis of the foregoing findings of fact, I can now arrive at conclusions as to the amounts of wages, holiday pay, notice pay and redundancy pay which must be awarded to the claimant.
56. First, I deal with wages.
57. I am satisfied that the claimant was entitled to approximately 6.4 weeks’ wages which were not paid to him. Therefore, on the basis of wages of £300 per week, he is entitled to £1,920 in respect of unpaid wages. (It is appropriate for an industrial tribunal to award unpaid wages on a gross weekly basis. If and when an employer pays pursuant to such an award, the employer will be obliged to make income tax deductions, from the gross amount awarded, and the amount of any such deductions must be handed over to HMRC).
58. Next, I deal with holiday pay.
59. I have decided that this claimant is entitled to 21 days holiday pay. On the basis that the claimant was entitled to £300 per week, he was entitled to £60 gross per day in respect of holiday pay. Accordingly, he is entitled to £1,260 in respect of holiday pay. (Holiday pay is paid gross. If an employer pays an employee pursuant to an industrial tribunal award in respect of holiday pay, that employer will be obliged to deduct tax from any amount so payable, and to hand over the amount of that deduction to HMRC).
60. The next issue relates to the amount of notice pay to which this claimant is entitled.
61. In my view, he is entitled only to two weeks’ notice pay, because he was employed by the respondent for more than two years, but for less than three years. In the circumstances of this case, the claim for notice pay is a claim for breach of contract. Accordingly, I have to calculate the amount which the claimant would have received if proper tax deductions had been made. I then have to deduct, from that amount, the following:
(1) The amount of any social security benefits paid or payable to the claimant and
(2) the amount of any earnings which the claimant obtained as a result of new employment (employment by someone other than the Partnership).
62. In my view, to allow for tax, this claimant’s net pay should be calculated as being 80% of £300 per week. Accordingly, the claimant’s net pay should be treated as being £240 per week.
63. This claimant was entitled to receive the sum of approximately £65 per week, by way of Jobseekers Allowance, throughout the notice period. Accordingly, the sum of £65 must be deducted from the figure of £240, leaving a net figure of £175 per week.
64. There is no need to deduct any amount in respect of wages gained from any other employer during the notice period, because I am satisfied that no such wages were obtained by this claimant.
65. Accordingly, this claimant is entitled to £350 (£175 per week) in respect of notice pay.
66. Finally, what amount of redundancy pay is due to this claimant?
67. For the purpose of calculating the amount of redundancy pay to which the claimant is entitled, his length of service with the employer must be deemed to have been extended by the duration of the notice period (the period of notice to which he was entitled).
68. After the notice period has been taken into account, the claimant’s overall length of service with the Partnership amounted to more than two years, but less than three years.
69. All of the claimant’s years of service with the Partnership occurred when he was aged more than 41 years of age.
70. Accordingly, the claimant is entitled to £900 in respect of redundancy pay. (This is based on weekly gross pay of £300 and a multiple of 3).
71. As already noted, neither Lee Lavelle nor Paul Johnston are formally insolvent, in the sense in which insolvency is used within the context of the statutory guarantee legislative provisions. Accordingly, at present, it looks as if the Department will never become responsible for paying anything to Mr Robinson in respect of wages, holiday pay or notice pay. And I note that Lee Lavelle put in no response, while Mr Michael Johnston (on behalf of Paul Johnston) raised no queries in relation to the amounts which were being claimed by Mr Robinson.
72. That is the background against which I have arrived at conclusions as to the amounts of unpaid wages, unpaid holiday pay and notice pay due to the claimant.
73. During the course of the main hearing, the Department has not commented upon the amounts claimed by the claimant in respect of wages, holiday pay or notice pay, because it looks as if the Department will never have the power to make any payments to the claimant, in respect of those matters. If however, contrary to current expectations, both Lee Lavelle and Paul Johnston ultimately become formally insolvent (in the sense in which that term is used within the context of Article 228 of the Order), it would be open to the Department, at that point, to apply for review of this decision, in respect of the amounts awarded in relation to wages, holiday pay and notice pay, while at the same time seeking an extension of time in respect of that application for review.
Robert Shortt
74. I considered Mr Shortt to be an unreliable witness in relation to some important matters of evidence: see below. That factor has to be borne in mind in considering his testimony on matters relating to the amounts due to him.
75. The Shortt “compensation” issues relate mainly to:
(1) the amount which is due to Mr Shortt from Lee Lavelle and from Paul Johnston, and
(2) the amount of the payment which should be made to him by the Department in respect of redundancy.
76. My understanding is that there is no real prospect of Lee Lavelle or Paul Johnston being able to meet the amount of any award of compensation made in favour of this claimant against them. Accordingly, the issue as to the amount of any redundancy payment due to this claimant is a much more important compensation issue, for practical purposes, than any other compensation issues.
77. In order to arrive at conclusions in relation to the amounts payable to Mr Shortt, I have to determine the following issues:
(1) What was this claimant’s gross weekly wage?
(2) What was the amount of any unpaid wages which were due to him at the time of dismissal? (see paragraph 92 below).
(3) How many days holidays had he accrued, but not yet taken, at the time of his dismissal? (see paragraph 93 below).
(4) What was his net weekly wage?
(5) What social security benefits did he receive, or what benefits were available to him, during his notice period?
(6) What was his age at the time of dismissal?
(7) How many complete years of service had he completed with the Partnership at the time of his dismissal?
78. According to the written application which this claimant made to the Department, his salary with the Partnership was £300 “net” per week.
79. During this hearing, this claimant drew my attention to bank statements of his, dated April 2008, December 2008 and July 2009, which show that he was receiving weekly wages from the Partnership of £225 in April 2008 and of £200 in December 2008 and July 2009. During the course of his oral testimony in these proceedings, this claimant told me that he had been receiving wages of £225 per week from the Partnership until December 2009 and that his wages had then been reduced to £200 per week from then onwards. On the basis of that testimony, and on the basis of the copy bank statements which the claimant provided, I conclude that the claimant was paid £200 per week during the latter part of 2009, and up to the date of his dismissal. I do not accept that this claimant ever had any binding agreement with the employer whereby his wages would be deemed to be augmented by any amount which had to be paid, by way of income tax or national insurance contributions, in respect of those wages of £200 per week.
80. Accordingly, for present purposes, I conclude this claimant’s gross wage and net wage was £200 per week. That disposes of compensation issues (1) and (4), as set out above.
81. I am satisfied that this claimant was 48 years of age at the time of his dismissal. (see issue (6) above).
82. What was this claimant’s length of service with the Partnership? (See issue (7) above).
83. According to this claimant’s application to the Department, he had been employed by the Partnership from January 2002 until January 2010. However, an “RD18” Statement of Account (in respect of National Insurance contributions), produced by Her Majesty’s Revenue and Customs in respect of this claimant, shows the following. The RD18 does not record any contributions made in relation to any employment with the Partnership, or with anybody associated with the Partnership, at any time during the tax years 2002/2003, 2003/2004, or 2004/2005. In respect of all of those years, contribution credits are recorded in respect of receipt, on the part of this claimant, of incapacity benefit.
84. The RD18 records contributions in respect of City Sight Seeing, or in respect of employment with persons associated with City Sight Seeing, and not in relation to any other employers, within the tax years 2005/2006, 2006/2007, 2007/2008, and 2008/2009. During the course of cross-examination on behalf of the Department, Mr Shortt asserted that he had started work with the Partnership in January 2005.
85. This claimant said that he had not filled out the application which he had made to the Department. He had merely signed it. He asserted that he was a bit dyslexic. He also said that he was absent-minded. He told me that he currently had no medical evidence as to any medical or other condition which might explain such absent-mindedness. I offered to postpone the hearing to allow him to be examined by a medical expert who could provide any medical or other reasons for such absent-mindedness; however, he told me that he did not want the hearing to be adjourned.
86. Against that background, I have decided that, for the purpose of calculating this claimant’s compensation, it is appropriate to regard him as having started with the Partnership on 6 April 2005.
87. Accordingly, this claimant must be taken, for the purposes of calculating notice pay and redundancy pay, to have been employed by the respondent for more than four years and for less than five years.
88. This claimant says, and I accept, that he was paid no wages in respect of any period after 15 November 2009.
89. This claimant says, and I accept, that (by the time of the closure of the business) he had accrued holiday pay entitlements in respect of 22 days holidays which he had not yet taken.
90. On the basis of the foregoing, I can now arrive at conclusions as to the amounts of wages, holiday pay, notice pay and redundancy pay which must be awarded to the claimant.
91. First, I deal with wages.
92. I am satisfied that this claimant was entitled to approximately 6.4 weeks’ wages which where not paid to him. Therefore, on the basis of wages of £200 per week, he is entitled to £1,280 in respect of unpaid wages. (see paragraph 57 above).
93. Next, I deal with holiday pay. As already noted above, I have decided that this claimant is entitled to 22 days holiday pay. On the basis that the claimant was entitled to £200 per week, he was entitled to £40 gross per day in respect of holiday pay. Accordingly, he is entitled to £880 in respect of holiday pay. (see paragraph 59 above).
94. The next issue relates to the amount of notice pay to which this claimant is entitled.
95. In my view, he is entitled to four weeks’ notice pay, because he was employed by the respondent for more than four years, but for less than five years. In the circumstances of this case, the claim for notice pay is a claim for breach of contract. Accordingly, I have to calculate the amount which the claimant would receive if proper tax deductions had been made. I then have to deduct, from that amount, the following:
(1) The amount of any social security benefits paid or payable to the claimant and
(2) the amount of any earnings which the claimant obtained as a result of new employment (employment by someone other than the Partnership).
96. In my view, to allow for tax, this claimant’s net pay should be calculated as being 80% of £200 per week. Accordingly, the claimant’s net pay should be treated as being £160 per week.
97. This claimant was entitled to receive the sum of approximately £65 per week, by way of Jobseekers Allowance, throughout the notice period. Accordingly, the sum of £65 must be deducted from that sum of £160, leaving a net figure of £95 per week.
98. There is no need to deduct any amount in respect of wages gained from any other employer during the notice period, because I am satisfied that no such wages where obtained by this claimant.
99. Accordingly, this claimant is entitled to £380 (£95 per week) in respect of notice pay.
100. Finally, what amount of redundancy pay is due to this claimant?
101. As already noted above, I have concluded that the claimant’s overall continuous length of service with the Partnership amount to more than four years, but less than five years.
102. All of the claimant’s years of service with the Partnership occurred when he was aged more than 47 years of age.
103. Accordingly, the claimant is entitled to £1,200 in respect of redundancy pay. This is based on weekly gross pay of £200 and a multiple of 6).
104. In relation to this claimant, I refer to the points which I made at paragraphs 71-73 above in respect of the Robinson case. Those comments are equally apposite in respect of the Shortt case.
Interest
105. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: 5 October 2011, Belfast.
Date decision recorded in register and issued to parties: