Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2358/10

2849/10

    

CLAIMANT:                          Sandra Elliott

  

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 £1,619 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 £2,464 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 payment of £3,990 from the respondent.

 

 

Constitution of Tribunal:

 

Chairman (sitting alone):             Mr Paul Buggy

 

 

Appearances:

 

The claimant was self-represented.

 

There was no appearance on behalf of the respondent.

 

 

REASONS

 

1.                  The claimant is one of a group of former employees who are currently suing the respondent in respect of employment-related debts.  That group of claimants includes the following:

 

(1)               Joseph David Rice

(2)               Sandra Elliott

(3)               Dorothy Arbuthnot

(4)               David Jackson

 

2.                  All of the people mentioned above gave evidence in this claimant’s case.

 

3.                  At the end of the hearing of this case, I announce my decision in this case.  I also gave oral reasons, at that time, for that decision.  Accordingly, what follows is by way of summary only.

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

 

5.                  This claimant had been employed by the respondent .According to the claimant’s claim form, she “resigned”.  However, in reality, did the claimant resign, or was she dismissed?  That is a question of law (as distinct from being a purely factual issue);  this claimant, who has no legal training, cannot properly be held to have  resigned,  merely because she incautiously used the terminology of resignation in a statement in her claim form.

 

6.                  I am satisfied that, in reality, as a matter of law, the position was as follows.

 

7.                  As the claimant makes clear in her claim form, she “resigned” only because of the employer’s consistent and protracted failure to pay her any wages; that failure occurred without any discussion or consultation.

 

8.                  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 the claimant.  (See Powell Duffryn Ltd v House [1974] ICR 123, at 128).

 

9.                  I am satisfied that this claimant was dismissed by reason of redundancy.

 

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

 

11.             I am satisfied that this claimant was entitled to notice of dismissal, or to pay in lieu of notice, and that this claimant received no 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 both the amount of any income received - during the notice period - in respect of “other” employment, and minus also the amount of any social security payments received, or receivable, by the claimant during the notice period) was as specified above.

 

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

 

13.      In these proceedings, the claimant has made no claim in respect of wages or guarantee 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:          23 March 2011, Belfast.

 

Date decision recorded in register and issued to parties: