Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

Case Ref:    842/11

 

 

 

CLAIMANT:                                Hessie McMullen

 

RESPONDENT:                          Skill Northern Ireland

 

 

 

DECISION

 

The decision of the tribunal is that the claimant is awarded a total of £6,938.85, in respect of a redundancy payment, holiday pay, unpaid expenses and notice pay.

 

 

Constitution of Tribunal:     

 

Chairman (sitting alone):           Mr W A Palmer

 

 

Appearances:

 

Neither party appeared: nor was either party represented.

 

 

1.       The respondent is a charity and a company limited by guarantee.

 

2.       Rule 27 (5) of the Industrial Tribunal Rules of Procedure (the Rules), which are contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, provide as follows:

 

          “If a party fails to attend or to be represented (for the purpose of conducting the party’s case at the hearing under rule 26) at the time and place for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.”

 

3.       The respondent, in the response to the claimant’s claim, stated that it did not intend to resist the claim.  In a letter, dated 3 May 2011, to the Office of the Industrial Tribunals, the claimant wrote as follows:

 

“Regarding your recent correspondence on the above notice of hearing, I wish to advise you that I will not be personally attending the hearing set for 14^th June 2011.  I do however wish for the case to proceed in my absence.”

 

4.       I have considered rule 27(5) of the Rules and have decided to dispose of the proceedings, on the basis of the information contained in, and with, the claim form and the response.

5.       The claimant, who was born on 16 October 1958, was employed by the respondent from 21 January 2003 until 31 December 2010, as Information and Development Officer.  She worked full-time and was paid £2,290.83 per month (gross) and £1,631.00 (net).

 

6.       I hold, from a reading of the claim form as a whole, and the documentation accompanying it, that the claimant is claiming a redundancy payment, holiday pay, expenses incurred in carrying out her duties and notice pay.

 

7.       The claimant was made redundant on 31 December 2011.  Taking account of her earnings, her service and her age at the date of dismissal, she is entitled to 10½ weeks pay capped at £380.00.  I, therefore, award her £3,990.00 in respect of a redundancy payment.

 

8.       Included with the claimant’s claim form is a letter, dated 3 March 2011, from J L Grant & Co, Chartered Certified Accountants, who were acting on behalf of the respondent.  In that letter, which is addressed to the claimant, it is stated that the claimant had 15 days’ holidays (3 weeks) outstanding at the date of dismissal.  I accept that this was so and hold that the claim, in respect of holiday pay, is likely to have arisen under the Working Time Regulations.  I award her 3 weeks’ pay, namely, £1,129.14.

 

9.       The 2 claims following are breach of contract claims.  The jurisdiction, of this tribunal, to determine these claims is contained in the Industrial Tribunals Extension of Jurisdiction Order 1996 (the Order).

 

10.     The claimant claims £140.00 in respect of unpaid expenses.  A cheque, dated 3 March 2011, for this amount, and in respect of the expenses referred to, was sent by the respondent to the claimant.  The cheque was not honoured and was returned to the claimant, by her bank, marked “Refer to Drawer”  I am satisfied that it is likely that this amount, namely the £140.00, remains unpaid and was due under the terms of the employment contract between the parties.  Subject to the reduction referred to later, I award the £140.00, under this head.

 

11.     With regard to notice pay, the claimant states, in her claim form, that she worked 2 weeks’ notice or was paid 2 weeks’ notice.  The respondent in its response states, “The organisation closed on 31 December 2010 and employees were issued with redundancy letters on 17 Dec. 2010.”  I hold, therefore, that the claimant worked 2 weeks’ notice.  However, under the provisions contained in Article 118 of the Employment Rights (Northern Ireland) Order 1996 she was entitled to 7 weeks’ notice, in light of her period of continuous employment with the respondent.  She worked 2 weeks’ notice and is, therefore, entitled to the balance of 5 weeks’ net wages.  Subject to the reduction referred to later, I award her £1,881.90, under this head.

 

12.     In her claim form, the claimant has indicated that she did not raise the subject matters of her complaints with the respondent.  I follow the reasoning of His Honour Judge Peter Clark in Allen v Murdoch [2009] UKEAT/0361/09 and hold that redundancy and holiday claims flow from the dismissal and are, therefore, excluded from the statutory grievance procedures.  His Honour’s decision was based on the interpretation of the equivalent to Regulation 6(5) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (the Regulations) and the interpretation of “dismissed” in the Regulations.  Regulation 6(5) provides, insofar as relevant, “Neither of the grievance procedures applies where the employer has dismissed … the employee.”

 

13.     The claims, in respect of the unpaid expenses and notice pay, are breach of contract claims.  The jurisdiction of this tribunal to determine those claims is conferred by the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (the Order), which is not one of the jurisdictions contained in Schedule 3 to the Employment (Northern Ireland) Order 2003 (the Order of 2003).  Step 1 of the statutory grievance procedure, therefore, is not required to be taken.  However, regulation 6(1) (a) of the Regulations provides that the grievance procedures apply to jurisdictions listed in Schedule 2 to the Order of 2003.  One of the jurisdictions listed in that Schedule is the Order.  Therefore, the adjustment of awards provision, set out in Article 17 (2) of the Order of 2003, applies.  I reduce the expenses award by 10% to £126.00 and the notice pay award by 10% to £1,693.71.

 

 

The awards are:

 

Redundancy Payment      £3,990.00

 

Holiday Pay                   £1,129.14

 

Notice pay                     £1,693.71

 

Expenses                         £126.00

                                      ________

Total                              £6,938.85.

 

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

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:       14 June 2011, Belfast.

 

 

Date decision recorded in register and issued to the parties: