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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lindsay v Greenhills Security Products L... [2010] NIIT 01458_10IT (03 February 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01458_10IT.html
Cite as: [2010] NIIT 01458_10IT, [2010] NIIT 1458_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1458/10
CLAIMANT: John Russell Lindsay
RESPONDENT: Greenhills Security Products Limited
DECISION
The unanimous decision of the tribunal is that the claimant is entitled to a total award of £2938.08 for redundancy pay, unlawful deduction from wages, holiday and failure to provide a written statement of terms and conditions of employment.
His claims for unfair dismissal and notice pay are dismissed.
Mr Brian Gallivan is dismissed as a party from the proceedings as he was not the claimant’s employer and the title of the proceedings is amended accordingly.
Constitution of Tribunal:
Chairman: Ms Julie Knight
Members: Mr John Hall
Mr James Hughes
Appearances:
The claimant presented his own case.
The respondent did not appear and was not represented.
Issues
1. The issues to be determined by the tribunal were:
a) Whether the claimant had complied with statutory time limits for presenting his claims, and if so;
b) Whether the claimant was entitled to a redundancy payment, notice pay, outstanding holiday pay, unlawful deduction from wages and reimbursement of bank charges and/or was unfairly dismissed.
Evidence
2. The tribunal considered the oral and documentary evidence of the claimant in relation both liability and remedy. The tribunal also considered correspondence from Mr Brian Gallivan. The tribunal allowed the claimant further time to provide further vouching documentation in support of his loss.
Facts
3. The tribunal found the following facts to be proven on a balance of probabilities:
4. The claimant was employed by the respondent company from 20 March 2006 until 4 December 2009. On the latter date the claimant was informed by another employee that the respondent had “closed shutters” and that he was no longer employed. At the effective date of termination the claimant was 55 years old, his average gross weekly pay was £346.15 and his average net weekly pay was £288.46. He did not have written terms and conditions of employment. The claimant was temporarily laid off between a date in June 2008 and 16 August 2008 but this did not break his continuity of employment. The claimant was not paid from 1-4 December 2009 and there was a shortfall in his November pay of £45.85.
5. The claimant told the tribunal that he received advice that he could not present his claims to the tribunal without first lodging a grievance with his employer. The claimant sent a letter of grievance to the respondent on 22 December 2009 under the modified grievance procedure concerning non payment of his salary for the period 1-4 December 2009, his entitlement to one month’s salary in lieu of notice, 7 days holiday (on the basis that he was permitted by his employer to take 20 days holiday per annum and he had already taken 13 days holiday since 20 March 2009), a redundancy payment; and the shortfall in his pay for November 2009 and consequential bank charges. The claimant did not receive any reply to his letter of grievance and therefore the respondent breached the statutory grievance procedures.
6. The claimant lodged his originating claim with the Industrial Tribunal on 20 May 2011. His claims were that he had been unfairly dismissed, for notice pay, a redundancy payment, compensation for unlawful deductions from wages, holiday pay and compensation for bank charges incurred by him as a result of the shortfall in his pay. Otherwise he simply was not aware of statutory time limits for lodging his complaints with the tribunal.
Conclusions
Unfair Dismissal and Notice pay
7. The claimant’s right to notice pay arises under Article 118 of the Employment Rights (NI) Order 1996 (“the 1996 Order”) as he did not have written terms and conditions of employment. His right not to be unfairly dismissed is enshrined in Article 126 of the 1996 Order. The tribunal concluded that it did not have jurisdiction to entertain the claimant’s claim for unfair dismissal or notice pay as the claimant had not presented his originating claim form within the three month time limit specified by the relevant legislative provisions in the Employment Rights (NI) Order 1996 and the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994. The tribunal was not satisfied that the claimant had shown that it was not reasonably practicable for him to present his claim within the three month period beginning with the effective date of termination. Unfair dismissal and breach of contract claims are not listed in Schedule 3 Tribunal Jurisdictions to which Article 19 of the Employment (NI) Order 2003 (Complaints about Grievances) applies. The claims for unfair dismissal and notice pay are therefore dismissed.
Unlawful Deductions from Wages and Holiday Pay
8. The tribunal was satisfied that the claimant had proven on a balance of probabilities that there were unlawful deductions from wages in relation to the November shortfall and the withholding of his final wages. The claimant’s entitlement to holiday pay is determined by reference to the Working Time Regulations in the absence of a written contract. His leave year therefore runs from 20 March until 19 March and his statutory annual leave entitlement is 28 days each leave year. At the effective date of termination the claimant had worked 198 days into his leave year. Again there is a three month time limit for lodging the proceedings. However these are jurisdictions to which the statutory grievance procedure applies and the time limit for presenting the claims in relation to these matters was extended by virtue of Regulation 15(3) (b) of the Employment (Northern Ire land) Order 2003 (Dispute Resolution) Regulations (NI) 2004 because the claimant raised his grievance in writing within the normal limit. The tribunal was not satisfied that the bank charges incurred by the claimant amounted to an unlawful deduction from pay and no award is made in this respect of the claim.
Redundancy Pay
9. The tribunal was satisfied on a balance of probabilities that the claimant was entitled to be paid a redundancy payment as there had been a cessation of the business for the purposes of which he had been employed and he had presented his claim to the tribunal in accordance with the time limits contained in Article 199 of the 1996 Order.
Compensation for failure to provide written terms and conditions
10. The tribunal awards the claimant an amount equal to two week’s pay pursuant to Article 27(3) of the Employment (Northern Ireland) Order 2003 because the respondent was in breach of its statutory obligation to provide a written statement to the claimant of his terms and conditions of employment.
11. Therefore the tribunal orders the respondent to pay compensation to the claimant calculated as follows:
Unlawful Deduction from wages:
November 2009 wages shortfall £45.85
Net Wages 1-4 December 2009
4 X £57.76 (daily net pay) £230.76 £276.61
Holiday Pay
198 X 28 = 15.5 days leave entitlement
365
Less 13 days leave taken
= 2.5 days X £57.76 (daily net pay) £144.40
Redundancy Pay
Gross Weekly Pay at effective date of termination (31/08/2010) £1557.68
£346.15 X age multiplier 1.5 X 3 full years service
Failure to provide written terms and conditions
£ 346.15 X 2 £692.30
Sub total £2670.99
Plus 10% Uplift of Award £267.09
Failure of respondent to complete the statutory
grievance procedure
TOTAL AWARD £2938.08
12. This is a relevant payment for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 18 January 2011 Belfast
Date decision recorded in register and issued to parties: