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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wylie v WDL developments Limited (In A... [2011] NIIT 00673_11IT (20 June 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00673_11IT.html
Cite as: [2011] NIIT 00673_11IT, [2011] NIIT 673_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 673/11
CLAIMANT: Jason Wylie
RESPONDENT: WDL Developments Limited (In Administration)
DECISION
The claimant’s claim for redundancy payment is dismissed. The Tribunal awards the claimant the sum of £560.00 in respect of notice pay.
Constitution of Tribunal:
Chairman: Mrs A Wilson
Panel members: Ms T Madden
Mr J Smyth
Appearances:
The claimant was represented by Mr Huddleston BL, instructed by Ross Thompson of Doris and MacMahon, Solicitors.
The respondent was represented by Mrs Pamela Moore, a director of the respondent company.
The Issues
1. Was the claimant made redundant from his employment with the respondent?
2. If the claimant was made redundant what is his redundancy entitlement?
3 In circumstances where the claimant was dismissed what if any amount of pay in lieu of notice is he entitled to?
Sources of Evidence
4. The tribunal considered the claim form, the response, documents handed in and referred to by the parties during the course of the proceedings together with the sworn testimony of the claimant and of Mrs Pamela Moore and Mr Stephen Moore for the respondent.
5. WDL Developments Limited entered into in administration on the 23 February 2011. The consent of the administrator has been obtained pursuant to Article 24(3) (d) of the Insolvency (Northern Ireland) Order 1989 enabling these proceedings to continue.
Contentions of the Parties
6. It is the claimant's claim that he was dismissed by reason of redundancy by the respondent in circumstances where he is entitled to a redundancy payment and pay in lieu of notice. A claim in respect of holiday pay and in respect of monies due on foot of an agreement between the parties has been resolved and is not a matter for this Tribunal.
7. It is the respondent's case that the claimant was dismissed for gross misconduct and not by reason of redundancy. There is no allegation made by the claimant that he was unfairly dismissed and this has not been raised as an issue at hearing.
Findings of Relevant Fact
8. The respondent is a construction company and was the claimant's employer from the 5 January 2009 until his dismissal on the 28 January 2011.
9. The claimant was employed as a skilled labourer and at the time of the commencement of his employment, the respondent company was busy, employing in or around 64 employees on a number of construction sites. The claimant was employed as a skilled labourer working on various sites as required by the respondent throughout his employment.
10. In or around late 2009 early 2010 the respondent suffered a downturn in business due to the recession and had to make a number of cut backs, none of which affected the claimant.
11. In or around the 10 November 2010 the claimant was advised by the site foreman with whom he had been working, that there was no work available for him the following day and he was advised to contact Mr Stephen Moore a director of the respondent company in relation to future work. When the claimant contacted Mr Moore in or around that time he was advised that there was no work in the following few days but Mr Moore promised to be in touch with him shortly regarding work.
12. In or around the 12 November 2010 Mr Stephen Moore contacted the claimant and offered him work on ongoing company projects in Scotland. The claimant was informed that travel expenses to include travel home at week ends and a living allowance was included in this offer. Offers in similar terms had been accepted by other employees of the respondent.
13. The claimant refused this offer of work and it is his case that it was refused on the grounds that he was unable to travel due to caring responsibilities for his disabled younger brother during the week and at week ends. It is the respondent’s contention that the claimant made no mention of his disabled brother when refusing the offer and that the offer was refused because the claimant runs a business from his home that required his ongoing attention. The claimant denies running a business for profit but accepts that he runs a small operation associated with his interests in marching bands which does not make a profit.
14. Having considered and evaluated the evidence, the Tribunal finds that the offer of work in Scotland was rejected by the claimant for reasons which were not connected to caring responsibilities for his brother. In making this finding the Tribunal carefully considered and evaluated the claim form, the evidence and the demeanor of the witnesses. The Tribunal finds Mrs Moore to be straightforward and direct in her testimony and accept her evidence that she was aware that the claimant had a disabled brother but that the matter of caring responsibilities was raised for the first time in the context of these proceedings. It had never arisen as an issue during the course of the claimant’s employment. The Tribunal finds Mr Moore similarly straightforward and accepts his evidence which corroborates that of Mrs Moore in preference to the evidence of the claimant. Further the Tribunal find the claimant’s evidence to be inconsistent with his claim as outlined in his claim form [see paragraph 18].
15. In or about this time the claimant was also offered work on a site in Ballymena under the supervision of Mr Raymond Bell. The claimant refused this work for personal reasons associated with a history of bad feeling between himself and Mr Bell. This is not in contention.
16. In or around the 30 November 2010, the claimant contends that he contacted Mr Gerry McCloskey to enquire about available work and was told that he was not needed at that time. Mr McCloskey is a site foreman and it is the respondent’s contention that as such he would have no authority to tell an employee in general terms that they were not needed. The Tribunal accept this to be the case. The Tribunal are mindful that it was the claimant’s site foreman who advised the claimant in or around the 10th November 2010 [para 11 refers] that there was no work for him. However that advice was given in circumstances where the claimant was working on a job with the particular foreman and was also advised by that foreman to contact Mr Moore regarding future work.
17. In or around January 2011 the claimant made several efforts to contact the respondent and Mrs Moore returned his calls on or about the 12 January 2011 asking him to present for work on the following day. The claimant indicated that he was unavailable for work on the following day due to the fact that he was suffering from an ongoing bad cold. The claimant contacted the respondent the following week to say that he was unavailable for work due to the death of his Aunt and would be unavailable for the foreseeable future.
18. The Tribunal is mindful that in the claimant’s application to the Tribunal he states that he “decided not to return to work until the money was repaid”. This is a reference to payments due to the claimant on foot of an agreement between the parties which had at that time fallen into arrears and in the view of the Tribunal is consistent with the respondent’s case that there was work available for the claimant.
19. In reliance on the statement referred to in the above paragraph and the recited findings of fact, the Tribunal is satisfied that, notwithstanding the effects of the recessions, there was work available for the claimant at all material times which the claimant chose not to accept. There was work in Scotland which the claimant refused. This is not in contention. More significantly there was work available in Ballymena which for reasons given earlier was also refused. The claimant was also requested and failed to present for work following conversations with Mrs Moore [para 17] in or around January 2011.
20. The respondent made ongoing efforts to contact the claimant for the purposes of arranging his return to work but failed to get a reply. The claimant admits that calls were received but were not taken on the advice of the Citizens Advice Bureau.
21. The claimant was dismissed without notice for gross misconduct on the 28 January 2011 and it is the respondent’s case that dismissal was triggered by the claimant’s continued failure to report for work.
The Law and the Application of the Law to the Facts
22. The law governing redundancy is set out in Part XII of the Employment Rights (Northern Ireland ) Order 1996 [the Order].
Article 174 lists the circumstances in which an employee is redundant and provides:-
174.—(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to -
(a) The fact that his employer has ceased or intends to cease-
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business-
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
23. The Tribunal is satisfied from the evidence that the dismissal of the claimant was not wholly or mainly due to a redundancy situation within the meaning of Article 174 of the Order. There is no doubt that the respondent was experiencing difficulties due to the downturn in the construction industry caused by the recession. The Tribunal is mindful that the respondent company shortly afterwards entered into administration. However the accepted evidence is that the claimant was offered work in Scotland which he did not accept. He was offered work in Ballymena which he did not accept. He was subsequently asked to report for work which he declined to do due to illness in the first instance and bereavement in the second instance. The Tribunal is satisfied that at all material times there was work available for the claimant and in his absence this work was undertaken by others.
24. In all of
the above circumstances the Tribunal finds that although the claimant was
dismissed, his dismissal was not by reason of redundancy. There is no claim of
unfair dismissal before the Tribunal.
25. The Tribunal finds that the claimant was dismissed without notice in circumstances where he was entitled to 2 weeks notice under the provisions of Article 118 of the Order which provides:-
118.—(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more-
(a) …..
(b) is 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 twelve years, and…
26. The claimant was earning £280.00 net per week and the Tribunal awards the sum of £280 x 2= £ 560.00 in respect of notice pay.
27. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 23 May 2011, Omagh
Date decision recorded in register and issued to parties: