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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McErlain v John Simms Resolutions (NI) Ltd Positive Solutions (NI) Ltd [2011] NIIT 00917_11IT (21 December 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00917_11IT.html
Cite as: [2011] NIIT 00917_11IT, [2011] NIIT 917_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 917/11
CLAIMANT: Conor McErlain
RESPONDENTS: 1. John Simms
2. Resolutions (NI) Ltd
3. Positive Solutions (NI) Ltd
DECISION
The unanimous decision of the tribunal is that the claimant is entitled to £5,300.26 in respect of redundancy pay and unpaid wages and that this is due from Positive Solutions (NI) Ltd as the claimant’s employer.
Constitution of Tribunal:
Chairman (sitting alone): Ms F Oliver
Appearances:
The claimant appeared in person.
The first named respondent appeared on behalf of all three respondents.
SOURCES OF EVIDENCE
1. The tribunal considered the Claim and the Response and also heard oral evidence from the claimant and the first respondent. The claimant also provided his Letter of Offer of Employment and pay slips.
THE CLAIM AND THE DEFENCE
2. The claimant was unsure as to the correct name of his employer. The first respondent contended that the third respondent was the employer. He indicated that the correct title of the employer was Positive Solutions (NI) T/A Resolutions (NI) Ltd.
THE ISSUES
3. The main issue for the tribunal is the correct name of the claimant’s employer.
4. The parties accept that the claimant is owed £4,148.26 in respect of unpaid wages and £1,152.00 in respect of redundancy.
FINDINGS OF FACT
5. The claimant was employed by Positive Solutions (NI) Ltd from 22 May 2006. The claimant provided a Letter of Offer on the headed notepaper of Positive Solutions (NI) Ltd. The claimant also provided payslips from Positive Solutions (NI).
6. The claimant was employed to work from premises at Balloo Drive in Bangor as a sign maker.
7. In 2008, the business suffered a downturn and from April 2008, the claimant was not paid his full wages. This continued until the claimant was made redundant on 11 January 2011.
8. On 13 September 2010 the claimant wrote to Mr Simms as the Managing Director of Positive Solutions (NI) setting out his grievance regarding unpaid wages. The letter also notes that there appeared to be an intention to run down and close the business of Positive Solutions.
9. Part of the business moved to a new address in Donaghadee sometime before Christmas 2010 and the claimant worked from the Donaghadee premises for a short time before being made redundant.
10. The first respondent commenced trading as a new business, Brook House Art and Design, from the same premises as Positive Solutions (NI) sometime between June 2010 and December 2010 and the first respondent was certainly evasive about the relationship between the various businesses with which he was involved.
11. The claimant accepts that he always thought he was employed by Positive Solutions (NI) and that the managing director was John Simms.
THE DECISION
12. The tribunal finds that the correct name of the employer is Positive Solutions (NI) Ltd as this is the name on the employer’s Letter of Offer of employment. There is nothing to suggest that there was a change of employer during the claimant’s term of employment prior to his move to the Donaghadee premises before Christmas 2010. There was insufficient evidence to convince the tribunal that the claimant’s employment had transferred to the new business, Brook House Art and Design.
13. The claimant was aged 34 at the date of dismissal, he had four years of service and he was earning £288 gross per week. His redundancy payment is therefore £1,152.00.
14. The tribunal accepts that the claimant was not paid his full wages from April 2008 and at the date of dismissal he was owed £4,148.26 in respect of unpaid wages.
15. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 15 September 2011
Date decision recorded in register and issued to parties: