Industrial Tribunals Northern Ireland Decisions

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 2307/10

2308/10

CLAIMANTS: 1. Riciardas Sirutavicius

2. Andrejus Vasilenko

RESPONDENT: Department for Employment and Learning

DECISION

It is the decision of the tribunal that the claimants are entitled as follows:-

1. Mr Sirutavicius for redundancy payment, notice pay and holiday pay in the sum of £4,325.00.

2. Mr Vasilenko for redundancy payment, notice pay and holiday pay in the sum of £5,490.00.

Constitution of Tribunal:

Chairman (sitting alone): Ms W A Crooke

Appearances

Both claimants were represented by Mr Adrian Travers, Solicitor.

The respondent Department did not appear at the initial hearing.

Prior to that hearing the respondent Department indicated that it was aware of the claim of each claimant by completing and forwarding a response in respect of each claim to the tribunal submitting that the correct respondent was Tinnelly International Transport Limited.

At the initial hearing it became apparent to the tribunal that Tinnelly International Transport Limited was in administration and the administrator did not attend or had not instructed representatives in this case.

As a result the tribunal adjourned the hearing to allow certain legal issues which arose in the situation to be addressed.

At the subsequent adjourned hearing Ms Patricia Baird, the representative of the respondent Department did attend in response to a letter forwarded to it by the tribunal in relation to the legal issues.

At this adjourned hearing the administrator did not attend and was not represented. In addition, the administrator made no written submission to the tribunal in relation to the legal issues arising.

Sources of Evidence

1. Both claimants gave evidence on their own behalf at the first hearing. There was a bundle before the tribunal.

The Claim and the Defence

2. Both claimants claimed that they were entitled to redundancy payments, holiday payments and payments in lieu of notice. The respondent did not really dispute this, saving that the proper respondent against whom the order should be made was Tinnelly International Transport Limited and that the Department would pay the claims as soon as possible if the tribunal made a declaration in favour of the claimants.

Facts

3. (1) The first claimant Mr Sirutavicius was employed by Tinnelly International Transport Limited from 3 January 2007 to 4 February 2009. The second claimant Mr Vasilenko was employed by Tinnelly International Transport Limited from 5 January 2006 to 4 February 2009. The first claimant had two years completed years of service with the respondent and the second claimant had three completed years of service.

(2) Both claimants had originally instituted proceedings claiming redundancy payments, holiday payments and payments in lieu of notice along with other reliefs. Two previous claims were brought against Tinnelly International Transport Limited (In Administration), Tinnelly Transport Limited and Kevin Tinnelly. Due to funding difficulties these claims were withdrawn and the claims currently before the tribunal were presented to the tribunal in or around 23 September 2010.

(3) Neither claimant had received any money for holiday payments during the entire course of their employment and both claimants did not receive any notice of the impending redundancy. They both took a holiday on Friday 30 January 2009 and when they returned to work on 4 February 2009 they were told that their services were no longer required. However while they said some other people had been made redundant, the company formerly known as Tinnelly International Transport Limited became Tinnelly Transport Limited and continued to trade.

Mr Sirutavicius’ claim is computed as follows. The weekly statutory maximum at the time in question was £330.00: £330.00 x 1 = £330.00

£330.00 x 1.5 = £495.00

£825.00

The same weekly statutory maximum applies to Mr Vasilenko’s claim and it is computed as follows: 3 x 1 x £330.00 = £990.00

The Relevant Law

4. At the second hearing the representative of the respondent Department submitted in relation to the legal issues and specifically in relation to the liability to pay, that any decision should be made against Tinnelly International Transport Limited in administration

The tribunal rejected that submission on the basis that this company was not party to these proceedings and an award could not be made unless it had been. The tribunal was mindful that the Department has a legal entitlement of subrogation under statute.

5. The tribunal notes that these proceedings were instituted after the company went into administration. Consequently, the consent of the administrator to the existence of these proceedings is required. After the adjourned hearing, by letter dated 6 May 2011, the tribunal wrote to the liquidator on this point and the liquidator provided a copy of a letter not previously seen dated 3 August 2010 which the tribunal considered satisfied the requirement that consent was provided. Accordingly these claims are valid.

The tribunal also heard submissions from Mr Travers on the question of issue estoppel. As the decision in the earlier proceedings was not a decision on the merits of the case, the tribunal did not consider these proceedings to be an attempt to relitigate an issue already decided and consequently the claimants were not precluded from bringing these proceedings by issue estoppel.

6. The relevant law is found in Articles 199, 202(3), 229 and 254 of the Employment Rights (Northern Ireland) Order 1996.

Conclusions

7. The tribunal considered that it was just and equitable to make a declaration in favour of each claimant on entitlement to a redundancy payment. Neither claimant had brought his claim to the tribunal within either the period of six months beginning with the date which was the last effective date of termination – (4 February 2009) or the six months immediately following that period. However both employees had made a claim for the payment by notice in writing, given to the employer by letters dated 29 April 2009. However, as this letter was directed to Tinnelly Transport Limited and not Tinnelly Transport International Limited, it could be argued that these letters did not properly comply with Article 199(1)(6) as not being sent to their employer. However, as it appeared from the evidence that Kevin Tinnelly operated both companies from the same place, we do not consider that it would be just and equitable to reject the claimant’s entitlements purely on the basis of their leaving “International” out of the description of the company. Given that these claimants are of Lithuanian national origin it is understandable that they had some difficulty in navigating their way through the often complex area of insolvency. Given the length of time that it took, we can readily understand that the claimants had some difficulty in complying with the second period of six months as a time limit, as they only had their claim to the Department denied in or around August 2010.

8. The tribunal declares that Mr Sirutavicius is entitled to a payment of one week’s net pay in respect of payment in lieu of notice in the sum of £500.00 which is his weekly net pay as evidenced by the various payslips he produced to the tribunal.

9. The tribunal declares that Mr Vasilenko is entitled to a payment of three weeks’ net pay as a payment in lieu of notice at the rate of £500.00 per week which is his net weekly rate of pay as evidenced by the payslips he produced to the tribunal.

10. Mr Sirutavicius claimed 47 days for holiday pay at the rate of £100.00 per day, being 21 days for 2007, 24 for 2008 and 2 days for 2009, being his statutory entitlement under the Working Time Regulations (NI) 1998. Mr Vasilenko claimed 67 days at the rate of £100.00 per day net, being 20 days for 2006, 21 days for 2007, 24 days for 2008 and 2 days for 2009. By virtue of Article 229(1)c(i) of the Employment Rights (Northern Ireland) Order 1996 the maximum amount of holiday pay that can be claimed is six weeks in all, so the tribunal awards both claimants 30 days holiday at the net rate of £100.00 per day being £3,000.00 in the case of Mr Sirutavicius and £3,000.00 in the case of Mr Vasilenko.

Summary of Compensation

11. Sirutavicius Vasilenko

Redundancy Payment £ 825.00 £ 990.00

Payment in lieu of Notice £ 500.00 £1,500.00

Holiday Pay £3,000.00 £3,000.00

TOTAL £4,325.00 £5,490.00

12. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 17 January 2011 and 27 April 2011, Belfast.

Date decision recorded in register and issued to parties:

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