Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF:  1115/10

CLAIMANT:                          Mark McCloy

RESPONDENT:                  Fisher Metal Engineering LLP

DECISION

(A)             The claimant’s claim in respect of holiday pay is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £326 in respect of holiday pay.

(B)             The claimant’s claim in respect of notice pay is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £2,088 in respect of notice pay.

(C)             The claimant’s claim in respect of a redundancy payment is well-founded and it is declared that the claimant is entitled to receive a redundancy pay of £3,040.

Constitution of Tribunal:

Chairman (sitting alone):             Mr P Buggy

Appearances:

The claimant was self-represented.

There was no appearance on behalf of the respondent.

REASONS

1.             On the basis of the evidence which I received, I was satisfied as to the following.

2.             The claimant had been employed by the respondent.  The respondent purported to exercise what it claimed to be its legal entitlement to lay off the claimant.   During the period of lay-off, the claimant was not paid anything.  That period was very lengthy.  Ultimately, the claimant purported to resign, pursuant to the provisions of Article 185 of the Employment Rights (Northern Ireland) 1996 Order.  (It is clear that the claimant purported to implement the Article 185 procedure  only for the purpose of putting his entitlement to a redundancy payment beyond doubt).

3.             The central question in this case is whether, in reality, the claimant really did resign, or whether, in reality, he was dismissed.  That is a question of law, which of course has to be answered within the context of my findings of fact.

4.             I am satisfied that, in reality, as a matter of law, the position was as follows.  The claimant “resigned” only because of the employer’s consistent and protracted failure to pay him any wages; that failure occurred without any discussion or consultation.   Against that background, I am satisfied that this claimant must be treated as having been dismissed because the employer, over a lengthy period and without consultation or discussion with the claimant, failed to make any salary payments to him.  (See Powell Duffryn Ltd v House  [1974] ICR 123, at 128; see also the commentary in” Chitty on Contracts”, Thirteenth Edition,  at para. 39-212).

5.             In light of the available evidence, I am satisfied that the claimant was dismissed by reason of redundancy.

6.             I am satisfied that this claimant was entitled to net holiday pay of the amount specified above.

7.             Because the claimant’s contract of employment was terminated by the employer, I am satisfied that this claimant was entitled to notice of dismissal, or to pay in lieu of such notice; I am also satisfied that this claimant received no such notice, and no pay in lieu of such notice.  I am satisfied, that as a result of that lack of notice, the claimant’s net losses (based on the claimant’s net pay while in the respondent’s employment, minus the amount of Job Seeker’s Allowance received or receivable, by the claimant during the notice period) was as specified above.

8.             I am satisfied that no redundancy payment was made to this claimant.  I have calculated this claimant’s redundancy payment entitlement, having noted the claimant’s age at date of dismissal, his length of service and his gross weekly pay.  Having done so, I am satisfied that this claimant is entitled to the amount of redundancy pay specified above.

9.             In these proceedings, the claimant has made no claim in respect of notice pay.

10.        The claimant’s gross weekly pay exceeded £380 at the time of termination of his employment.  At that time, his net pay was £326 per week.

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

Chairman:

Date and place of hearing:          1 and 7 April 2011, Belfast.         

Date decision recorded in register and issued to parties: