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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cunningham v Larfran Industries LLP [2011] NIIT 00976_11IT (08 November 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00976_11IT.html
Cite as: [2011] NIIT 976_11IT, [2011] NIIT 00976_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 976/11
CLAIMANT: Daniele Cunningham
RESPONDENT: Larfran Industries LLP
DECISION
The decision of the tribunal is that the claimant is entitled to a statutory redundancy payment of £629.26. The tribunal does not have jurisdiction to entertain the claimant’s breach of contract claim in respect of notice pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 or holiday pay claim in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Article 30(2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting claims. The claimant’s notice and holiday pay complaints are dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Ms M Bell
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented.
1. The claimant in her claim complained that she had not received a redundancy payment, notice or holiday pay on termination of her employment.
2. No response has been presented by the respondent in accordance with the Industrial Tribunals (Constitution and rules of Procedure) Regulations (Northern Ireland) 2005.
3. The correct title of the respondent is Larfran Industries LLP. The title of the respondent in these proceedings is accordingly amended from ‘Larfan Industries LLP’ to ‘Larfran Industries LLP.’
Issues
4. The issues for the Tribunal are:-
- Is the claimant entitled to a redundancy payment?
- Has the tribunal jurisdiction to entertain the claimant’s breach of contract complaint for notice pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limits for presentation of a claim?
- Has the tribunal jurisdiction to entertain the claimant’s holiday pay complaint in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 and or Article 30(2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting claims?
Evidence
5. The Tribunal considered the claim, documentation provided by the claimant including her payslips, P45, P60, correspondence with the respondent, correspondence with the Redundancy Payments Service and heard oral evidence from the claimant.
Findings of Fact
6. The claimant was born on 9 March 1955. She commenced employment with the respondent on 5 November 2002 as a sandwich maker in the respondent’s Subway sandwich shop at Bridge Street, Banbridge. The claimant’s hours of work varied depending on when she was required. The last twelve payslips which the claimant was able to produce for weeks dated between 7 October 2009 and 23 February 2010 showed the claimant as paid on average £59.93 gross per week being £47.72 net.
7. The claimant last carried out work for the respondent on 20 February 2010. Just before the claimant was next due to work a work colleague telephoned her and told her that she did not need to go into work as the business had closed.
8. The claimant’s last pay date and effective date of termination was 23 February 2010.
9. Following closure of her place of work the claimant tried without success to contact Mr Frank McKee who ran the respondent’s business, by telephone and by calling at another of the respondent’s shops.
10. The claimant sought advice from the Citizens Advice Bureau (CAB) and on 9 April 2010 wrote to the respondent querying deductions made from her pay in the absence of payslips being provided since November 2009, her holiday pay entitlement, failure to give her three weeks notice of her redundancy and 10.5 weeks pay by way of a redundancy payment.
11. The claimant is French and went on holiday to France during July and August 2010. On her return home to Northern Ireland at the end of August 2010 the claimant received a letter from the respondent dated 8 June 2010 in which it confirmed that her position was made redundant as a consequence of significant changes in the business as a result of which less labour was required from flexible employees and that she would be advised separately as to any outstanding holiday pay entitlement that she may be due. The claimant did not receive the respondent’s letter until her return from holiday as whilst it was post marked 11 June 2010 insufficient postage had been paid on it.
12. The claimant replied to the respondent’s letter dated 8 June 2010 seeking her outstanding P60, holiday and redundancy pay entitlements, her reply was undated.
13. The respondent wrote a letter to the claimant on 28 December 2010 thanking her for correspondence dated 6 December 2010. The respondent confirmed that it calculated that she was entitled to outstanding holiday pay and statutory redundancy pay but as they had ceased trading the business was not in a position to pay her and advised her to make a claim to the Redundancy Payments Service via the enclosed application form for payments from the national insurance fund.
14. With the help of the Citizens Advice Bureau the claimant completed the claim for payments from the national insurance fund and it was received by the Redundancy Payments Service on 21 January 2011. The Redundancy Payments Service wrote to the claimant on 21 January 2011 confirming receipt of her application and advised her that investigations would be carried out which normally take six to eight weeks.
15. The Redundancy Payments Service wrote to the claimant on 7 March 2011 rejecting her application for a redundancy payment following which the claimant made an appointment with the CAB but was told that she would need the help of a different advisor and so a further appointment was made for the claimant. The Claimant was unable to recollect when these appointments took place.
16. The claimant on her own evidence was advised by the CAB of the time limits for presentation of a claim to the tribunal although was unclear as to when.
17. With the assistance of the CAB the claimant presented a claim to the office of the industrial tribunals on 14 April 2011.
The Law
Redundancy Pay
18. Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on that business in the place where the employee was so employed, or, the fact that the requirements of that business 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.
19. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.
20. Article 20 of the 1996 Order sets out how the amount of a week’s pay of an employee shall be calculated for employments where there are no normal working hours for the employee, applicable in this case, as the average weekly remuneration in the period of twelve weeks ending with the last complete week before the effective date of termination, but with no account taken of a week in which no remuneration was payable by the employer but remuneration in earlier weeks being brought in to bring up to twelve the number of weeks of which account is taken.
Notice Pay
21. Article 7 of the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 provides that an industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented:-
(a) Within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or
(b) Where there is no effective date of termination , within the period of three months beginning with the last day upon which the employee worked in the employment which is terminated, or
(c) Where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.
Holiday Pay
22. Article 55 of the Employment Rights (Northern Ireland) Order 1996 provides that a worker may complain to a tribunal in respect of unlawful deduction of wages. Under Article 55 (2) a tribunal shall not consider such a complaint unless it is presented before the end of the period of three months beginning with the date of payment of wages in which the deduction was made or the date when payment was received. However, under Article 55 (4) where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
23. Under Article 14 of the Working Time Regulations (Northern Ireland) 1998 a worker is entitled to compensation related to entitlement to leave where his employment is terminated during the course of the leave year to be calculated in accordance with the formula set out at Regulation 14 (2). Under Regulation 30 a complaint may be presented where his employer has failed to pay him any part of an amount due under Regulation 14(2). However Regulation 30 (2) provides that an industrial tribunal shall not consider such a complaint unless it is presented before the end of three months beginning with the date on which it is alleged that the payment should have been made, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
24. Hence, for the time limit to be extended for a holiday pay claim either as an unlawful deduction of wages or under the working time regulations, or, breach of contract claim for failure to give adequate notice, the tribunal first must be satisfied that it was not reasonably practicable for the complaint to have been lodged within the three month limit. Secondly, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. It is clear that the tribunal must be satisfied on the issue of reasonable practicability before it considers whether the further period within which the claim is lodged was otherwise reasonable. The onus to satisfy the tribunal that it was not reasonably practicable for the complaint to have been lodged within the three month limit is on the claimant.
Applying the Law to Facts Found
25. On consideration of all the evidence before it the Tribunal is satisfied on a balance of probabilities of the following:-
Redundancy Pay
26. The claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent having ceased to carry on the business for the purposes of which the claimant was employed by it in the place where the employee was employed. The last twelve payslips prior to the last complete week before the effective date of termination disregarding any week for which the claimant was not able to show any remuneration show the claimant as paid on average £59.93 gross per week. The claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows:-
27. 7 years continuous employment x 1.5 x £59.93 = £629.26
Notice and Holiday Pay
28. The claimant’s breach of contract claim for the respondent’s failure to give her sufficient notice should have been presented to the tribunal by 22 May 2010 before the end of the three month time limit beginning with the effective date of termination.
29. Likewise, the claimant’s holiday pay claim if treated as an unlawful deduction from wages, should have been presented by 22 May 2010 before the end of the period of three months beginning with the date of payment of wages in which the deduction was made or the date when payment was received, the claimant’s last pay date being 23 February 2010.
30. Again, the claimant’s holiday pay claim if treated as a claim under the working time regulations, should have been presented by 22 May 2010 before the end of three months beginning with the date on which it is alleged that the payment should have been made, the claimant’s employment having terminated on 23 February 2010 and last pay date being 23 February 2010.
31. The claimant’s notice and holiday pay claims were presented to the tribunal on 14 April 2011, almost 11 months late.
32. The claimant indicated that her delay was as a result of the respondent’s slow response to her letter of 9 April 2010, receipt of the respondent’s reply dated 8 June 2010 having been delayed due to insufficient postage being paid and her absence on holiday in July and August 2010, the respondent not replying to her again until 28 December 2010, that her claim to the Redundancy Payments Service was not rejected until March 2011 and that she had to arrange a second appointment with a different CAB advisor following this before completing her claim to tribunal.
33. A claimant is generally expected to make suitable enquiries as to their rights. It is clear from the claimants own evidence and the terms of her correspondence that the claimant had sought advice as to her entitlement before writing to the respondent on 9 April 2010 and as such whether advised or not at that point was put on inquiry and had an obligation to seek information about how to enforce her rights including time limits. The claimant in her evidence confirmed that she had been advised by the CAB as to time limits for lodging a claim to the tribunal although unclear as to when. The reasons put forward by the claimant for delay all relate to the period after 22 May 2010, there is however no evidence before the tribunal from which it is persuaded that it was not reasonably practicable for the claimant to present her claim to the tribunal albeit in the absence of a response from the respondent to her correspondence, within the three month time limit.
34. The tribunal accordingly finds that it does not have jurisdiction to entertain the claimant’s notice or holiday pay complaints.
Conclusion
35. The decision of the tribunal is that the claimant is entitled to a statutory redundancy payment of £629.26, but that the tribunal does not have jurisdiction to entertain the claimant’s breach of contract claim in respect of notice pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 or holiday pay claim in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Article 30(2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting claims. The claimant’s claims in respect of notice and holiday pay are dismissed.
36. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 October 2011, Belfast.
Date decision recorded in register and issued to parties: