Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01753_10IT.html
Cite as: [2010] NIIT 01753_10IT, [2010] NIIT 1753_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1753/10

CLAIMANT: John McIntyre

RESPONDENTS: 1. Department for Employment & Learning

2. Access & Support Ltd c/o KPMG

DECISION

The decision of the tribunal is that the claimant is not entitled to a redundancy payment from either the first-named respondent or the second-named respondent.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimant appeared in person and represented himself.

The first-named respondent was represented by Mr Curran of the first-named respondent company.

The second-named respondent did not appear and was not represented.

Issues

1. The issue in this case is:-

“Whether the claimant is entitled to redundancy payments from two different guarantee institutions, that is the Republic of Ireland and that of Northern Ireland.”

2. The background facts were not in dispute. The claimant worked for the second-named respondent as a sales director. He lived and worked from his home in the Republic of Ireland. His contract provided that his salary was £25,000 per annum but there was a handwritten amendment to his contract confirming that 25% of his salary would be paid ‘through the Belfast Office’. He spent a day or so every fortnight working in Northern Ireland, mainly visiting building sites in the company of local sales representatives.

3. The claimant paid income tax in both Northern Ireland and the Republic of Ireland. The Dublin Office closed in January 2008 and the claimant applied for and received redundancy pay from the Department of Enterprise & Employment in November 2008. He continued to work in Northern Ireland pursuing outstanding accounts until July 2008 and received the ‘Northern’ element of his pay from January 2008 to July 2008 when his employment terminated. He sought further redundancy pay in relation to the ‘Northern’ element of his work from the first-named respondent. On 18 March 2010, DEL wrote to the claimant rejecting his claim as he had received his redundancy in the Republic of Ireland.

4. The claimant makes his claim against the first-named respondent on the basis that it is the guarantee institution within a jurisdiction in which he worked and was paid and paid taxes. He acknowledges that he has been paid redundancy pay from the guarantee institution in the Republic of Ireland but only to the extent of his pay in that jurisdiction.

5. Harvey on Industrial Relations and Employment Law at Section C, Paragraph 24.01 states:-

“By Article 9 of 2008/94/EC (formerly Article 8a of 80/987/EC), where an undertaking with activities in the territories of at least two member states is in a state of insolvency within the meaning of Article 2(1), the guarantee institution responsible for meeting an employee’s outstanding claims shall be that in the member state in whose territory works or habitually works.”

6. The identity of the appropriate state in which to make a claim to the guarantee institution has been given consideration by the European Court of Justice. Much of the analysis has concentrated on which is the appropriate state to make a single claim. The claimant’s claim, however, is based on the proposition that he should be entitled to payment from two separate guarantee institutions in relation to the one contract of employment. The European Court of Justice has considered this issue. In the case of Svenska Staten v Holmqvist [2008] IRLR 970 the court quotes from an earlier case of Danmarks Aktive Handelsrejsende (Acting on behalf of Mosbaek) v Lonmodtagernes Garantifond [1998] IRLR 150 and said at Paragraph 25:-

“Third, in Mosbaek, the court explained that the aim of the Directive is ‘in the event of an employer’s insolvency, that the guarantee institution of only one member state should become involved, in order to prevent unnecessary entanglements between national systems and, in particular, situations in which a worker might claim the benefit of the Directive in several member states’. It may be inferred from the foregoing that liability for the payment of guarantee claims is exclusive, since a single guarantee fund assumes responsibility for compliance with Directive 80/987.”

7. It is clear that the place in which the claimant was based and habitually worked was the Republic of Ireland where he had already made a claim to the guarantee institution. In light of the European Court of Justice’s decision above that a claim should be made from only one member state, I determine that the claimant’s claim against both respondents in this jurisdiction must fail and the claimant’s claim is dismissed.

Chairman:

Date and place of hearing: 25 November 2010, Belfast

Date decision recorded in register and issued to parties:

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