Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/00604_11IT.html
Cite as: [2011] NIIT 00604_11IT, [2011] NIIT 604_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 604/11

CLAIMANT: Kevin Boorman

RESPONDENT: Michael Hughes, T/A Surespray NI Ltd

DECISION

The decision of the Tribunal is that the respondent is liable to pay the claimant redundancy payment in the sum of £2,608.11.

The claimant’s claim for notice pay was lodged out of time and so was dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Miss E M McCaffrey

Appearances:

The claimant appeared and was represented by Jane Griffiths of Magherafelt District Advice Services.

The respondent did not appear as they had failed to submit a response in accordance with the rules of procedure and no application for an extension of time had been made by them or on their behalf.

1. Facts

1. The claimant was employed by Surespray Limited which is a Limited Company. The owner of the company is Michael Hughes. The name of respondent will therefore be amended to Surespray (Northern Ireland) Limited. The claimant was employed by the respondent as a work shop labourer from 4 May 2004. On 5 July 2010 the claimant was given a letter by Mr Hughes of the respondent company telling him that after July holidays there would be a temporary lay off of workers due to a fall in business. There was provision for lay-off of staff in the contract of employment given to the claimant by the respondent. The lay off was effective from 26 July 2010. The claimant received a statutory guarantee payment of £21.20 per day for 5 days on the 24 August 2010.

Towards the end of November 2010, the claimant contacted Mr Hughes by telephone to ask if there was any prospect of work. Mr Hughes said that there was some work but not much. The claimant enquired about his redundancy pay and after some discussion Mr Hughes indicated that “he would set the wheels in motion”. The claimant did not hear anything further from the respondent. On 24 January 2011 the claimant sent a grievance letter to Mr Hughes of the respondent company concerning his redundancy pay and pay in lieu of notice. As the claimant heard nothing from the respondent he lodged a claim form with the Office of Industrial Tribunals on 22 February 2011.

2. Relevant Law and Decision

1. The relevant law in relation to this matter is to be found in Articles 182 and following of the Employment Rights (NI) Order 1996. That legislation sets out the right of an employee to apply for a redundancy payment where he has been laid off. In particular, Article 183 provides that where an employee has been laid off for more than 4 consecutive weeks, he is entitled to apply to his employer in writing for a redundancy payment. In order to receive such a payment the employee must also resign his employment (Article 185) within “the relevant period”. In this case, where no response was received by the employee to the notice seeking payment of his redundancy payment, the relevant period is 4 weeks after the service of the notice.

2. In this case, the claimant wrote to the respondent on 24 January 2011 seeking not only his redundancy payment, but his notice pay. Although therefore the notice letter does not expressly say that the employee is giving notice of terminating his employment, I hold that the respondent’s actions in withholding a second guarantee payment which was due was a fundamental breach of contract. Further, the claimant’s action in response of seeking his notice pay implies that the contract is to end, if it had not already done so. I hold therefore that the claimant had in fact given appropriate notice of termination of his employment.

3. Given that the claimant had been employed for 6 full years all of which were over the age of 41 he is entitled to 9 weeks gross pay his gross pay was £289.79 per week and therefore the redundancy payment to which he is entitled is £2,608.11.

3. I therefore order the respondent to pay the claimant the sum of £2,608.11. As the claim for notice pay was lodged out of time that claim will be dismissed.

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

Chairman:

Date and place of hearing: 12 May 2011, Belfast.

Date decision recorded in register and issued to parties:

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