Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

Case Ref: 1802/10

 

 

Claimant:                  Martin Anthony McGrath

 

Respondents:         1.  Victor and Helen Bowman T/A Bowman Windows

2.  Department for Employment and Learning

 

 

DECISION

 

The tribunal has concluded that the second respondent is liable to pay to the claimant the sum of £1477 by way of unpaid redundancy pay; £746 by way of unpaid notice pay; and £38.67 by way of unpaid holiday pay.

 

The first respondent is dismissed from the proceedings.

 

 

Constitution of tribunal:

 

Chairman (sitting alone):             Mr Trevor Browne

 

 

                       

Appearances:

 

The claimant was represented by Mr Adrian Travers, solicitor.

 

Mr Victor Bowman attended on his own behalf;

 

The second respondent was represented by Mr Neil Cruikshanks.

 

 

The Issue

 

1.         The tribunal had to determine if the correct calculation had been made by the second respondent as to the claimant’s weekly pay over the preceding twelve weeks.

 

Findings of Fact

 

2.         The tribunal made the following findings of fact from the oral evidence  and from the documentary evidence placed before it:

 

3.                  The claimant had worked for the first respondent for twelve years, until he was dismissed by reason of redundancy on 9 April 2010. From October 2009 until that date, the claimant and his colleagues had been working 25 hours per week rather than his contracted 40 hours per week because the business had encountered a significant downturn in work. The situation was reviewed every week.

 

4.                  The first respondent’s business entered into an individual voluntary agreement because it was insolvent. As a result, the claimant had to approach the Redundancy Payments Service (RPS) to receive his unpaid redundancy entitlement, his unpaid notice pay and his unpaid holiday pay entitlements. The second respondent can only pay up to twelve weeks’ redundancy, which coincidentally is the same length of service of the claimant.

 

5.                  The calculation used by RPS to calculate a week’s pay is that contained in Article 17 of the Employment Rights (Northern Ireland) Order 1996, namely average weekly amount earned by the claimant over the twelve weeks preceding his dismissal. The second respondent contends that using the lower rate of pay arising from the reduction in hours was the correct one, and that this amount reflected the amended contract between the claimant and the first respondent.

 

6.                  The second respondent also contended that it was responsible only for that amount, and that if the tribunal found that the claimant’s weekly pay should have been based upon his pay when the contract with the first respondent was operating fully, then any shortfall between the amount paid to the claimant by the second respondent and the amount owed should be paid by the first respondent.

 

7.                  The claimant’s case was that this was not only harsh and consequently unfair, because it was not a true reflection of his actual earnings over the years, but was a misapplication of the legislation, resulting from a misinterpretation of the terms of the contract between the claimant and the first respondent.

 

Conclusions

 

8.                  I have concluded that the second respondent has placed undue reliance upon the provisions of Article 17 of the 1996 Order. That Article seems to me to provide a formula to calculate the average pay over a period, to give a workable representation of a person’s general earnings.  The situation in this case however, is that those twelve weeks gave, in my view, a distorted picture of the claimant’s true earnings.

 

9.                  The situation, whilst it had persisted for a number of months, was reviewed weekly, and was therefore reasonably viewed by the claimant as a temporary measure to allow the business to recover sufficiently to return to normal working hours.

 

10.             The fact that such a contingency was already provided for in the claimant’s original contract of employment satisfies me that it cannot be said that in effect a new contract had been negotiated between the claimant and the first respondent. The short-time working, whilst ultimately unsuccessful, can in my view be regarded as another strand of the claimant’s contract. In reaching this conclusion, I have adopted the conclusions in the case of Friend –v- PMA Holdings Ltd [1976] ICR 330.

 

11.             It is incorrect in my view to say that the first respondent is liable to pay this amount, since the second respondent has, in my view, been in error as to the time-frame it has selected. The first respondent is therefore dismissed from the proceedings.

 

12.             I therefore find that the second respondent’s calculation is wrong, and that the proper figure should be that before the reduced hours.

 

13.             The second respondent is therefore ordered to pay to the claimant the sum of £1477.00 by way of unpaid redundancy entitlement; £746.00 by way of unpaid notice pay; and £38.67 by way of unpaid holiday pay.

 

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

 

 

 

Chairman:

 

 

Date and place of hearing:  8 December 2010, Belfast

 

 

Date decision recorded in register and issued to parties: