Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/730_11IT.html
Cite as: [2011] NIIT 730_11IT, [2011] NIIT 00730_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 730/11

CLAIMANT: Stephen Gerard Quinn

RESPONDENT: Gleeson Roofing Limited

DECISION

The claimant was dismissed by the respondent by reason of redundancy and accordingly I order the respondent to pay the claimant the sum of £4,940.00 in respect the redundancy payment due to him.

Constitution of Tribunal:

Chairman (sitting alone): Miss E McCaffrey

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr Declan Marlow, Solicitor of Murphy and McManus Solicitors.

The Facts

1. On the basis of the documents produced in relation to this matter and following hearing evidence from the claimant and from Mr Gleeson of the respondent company, I make the following findings of fact. The claimant was born on 15 November 1973 and was employed by the respondent as a roofer from April 1997 until 10 January 2011.

2. At the outset of the hearing, I drew to the attention of the parties that an Order had been made by the chairman to accept a late response from the respondent on the basis that it was an oversight not to respond in time. However that Order in my view was erroneously made as the response which was lodged by the respondent at that time did not include the grounds of resistance of the claim. I asked if the respondent could now specify the grounds of resistance of the claim, which was for a redundancy payment. The respondent’s representative indicated that the grounds of the resistance of the claim were first of all, that the claimant had not properly complied with the procedure set out in Article 183(1) to 185 of the Employment Rights (Northern Ireland) Order 1996, and secondly, the respondent’s representative queried whether the appropriate grievance had been raised in accordance with Schedule 3 of the Employment (Northern Ireland) Order 2003. It was explained to the claimant that these were the grounds of resistance of the claim. He was asked if he was prepared to go ahead and deal with the claim, which he indicated that he was. On that basis, I agreed to proceed with the hearing.

3. The claimant’s evidence was that he was paid a net sum of £350 per week. He was not sure of his gross pay as he said he received payslips only sporadically. He said that following the Christmas holidays, he was due back to work on 6 January 2011. On 5 January he received a text message from Mr Gleeson to say that work would not start until Monday, 10 January 2011. On 9 January at 5:30 pm, he received a phone call from Mr Gleeson to say that the claimant was being laid off temporarily for four weeks. Mr Gleeson said that he would be in touch.

4. Towards the end of the four week period, the claimant tried to ring Mr Gleeson on a number of occasions but could get no answer. He eventually reached Mr Gleeson on Saturday, 5 February. At this stage the claimant had already consulted the Citizens Advice Bureau in relation to his situation because he was concerned that he had not heard from the respondent. He said that he had spoken to someone at the CAB and had prepared a letter to go to the respondent. The CAB had indicated that the letter was an appropriate letter to send. When the claimant managed to speak to Mr Gleeson by telephone on Saturday, 5 February Mr Gleeson indicated that he had no work for him and that he was “going to have to let you go”. The claimant asked Mr Gleeson about redundancy and said that Mr Gleeson’s answer was, “No money there, Stevie”. The claimant advised Mr Gleeson that he would have to go down the legal route and said that he would write to him.

5. The claimant indicated that he sent the letter already prepared on his behalf and dated 4 February 2011 to the respondent. He produced a receipt for the letter and said that he had checked the Post Office website to confirm that it had been delivered on 10 February.

The letter reads as follows:

“Dear Mr Gleeson,

I am writing to let you know as on Monday 7^th Feb. I wish to hand in my resignation as I am obliged to do in order to claim my Statutory Redundancy. I have been laid of (sic) now four weeks and am entitled to this. I have been employed with your company this past 13 years. Given this I wish to receive a reply together with payment for all outstanding monies due within 14 days. If payment is not received in full I will have to initiate proceedings with Employment Tribunal. Obviously I do not wish to take this action but unfortunately you leave me no choice.

Yours faithfully,

Stephen Quinn.”

6. The claimant also indicated that he had asked Mr Gleeson if he could give him something in writing to cover an insurance claim in relation to his mortgage repayments. The claimant received a letter from the respondent dated 11 January 2011 as follows:-

“Reference layoff.

Dear Stephen, due to lack of work we have to inform you that we have no work for you from Monday 10^th January 2011. We have been unsuccessful in numerous tenders and are struggling to pick up new work.

Yours faithfully,

Gerry Gleeson, Proprietor.”

The claimant was also issued with his P45 which has a leaving date of 10 January 2011.

7. The claimant also confirmed that he had received his lying week’s pay and holidays worked but no other money. He did not apparently receive any guarantee payment to which he was entitled under layoff and no evidence was given of this by the respondent. His understanding at the end of the phone conversation with Mr Gleeson was that he had been “got rid of”. In cross-examination, it was put to the claimant that his letter of 4 February indicated that he was resigning his job and that he therefore accepted that he was still employed when the letter was sent on 8 February. The claimant said that he didn’t really understand that, that he had simply sent the letter as approved by the CAB but that his clear understanding after his telephone conversation with Mr Gleeson on 5 February was that he had been let go. The claimant did not go back to the CAB for further advice, because he said that it was difficult to get an appointment with the CAB and he felt that he didn’t have time to wait before applying for his redundancy payment. The claimant also indicated in reply to questioning in cross-examination that the letter he had sent was, as he understood it, the standard letter he had to send to get his redundancy payment.

8. Mr Gleeson gave evidence that he had not had any conversation with the claimant on 5 February and that the only correspondence he had received from the claimant was the letter dated 4 February. He did not give any further explanation in relation to the issue of lay-off. Having heard the evidence of both parties, I am satisfied that the conversation of 5 February did take place and that the claimant understood at the end of that conversation that he was being dismissed. I also accept the claimant’s evidence that he did not fully understand the technical import of the phrasing of his letter of 4 February and that he simply sent the letter which he had been advised to send by the CAB, and did not make any changes to it. The claimant’s claim form was received at the Office of the Industrial Tribunals and the Fair Employment Tribunal on 7 March 2011.

Relevant Law

9. Article 183 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:

183.— (1) Subject to the following provisions of this Part, for the purposes of this Part an employee is eligible for a redundancy payment by reason of being laid off or kept on short-time if—

(a) he gives notice in writing to his employer indicating (in whatever terms) his intention to claim a redundancy payment in respect of lay-off or short-time (referred to in this Part as “notice of intention to claim”), and —

(b) before the service of the notice he has been laid off or kept on short-time in circumstances in which paragraph (2) applies.

(2) This paragraph applies if the employee has been laid off or kept on short-time—

(a) for four or more consecutive weeks of which the last before the service of the notice ended on, or not more than four weeks before, the date of service of the notice, or

(b) …”

The employer has the right to give a counter notice to the employee under Article 184 but this was not done in this case. Under Article 185 of the Order an employee must give his contractual notice, or if there is no such contract, then one week’s notice before bringing Tribunal proceedings to claim his redundancy payment. These proceedings may not be commenced until after the period of three weeks from the expiration of the claimant’s notice period.

It is correct that the Employment (Northern Ireland) Order 2003 stipulates a grievance procedure which is to be followed in relation to all claims lodged with the Industrial Tribunals before 3 April 2011. This includes claims in relation to redundancy payments. However I am also conscious of the decision of the Employment Appeal Tribunal in the case of Allen and Ors –v- Murdoch 2009 EAT0361 (9 October 2009) which indicates that in a case of a claim for a redundancy payment, it is not necessary to follow the statutory grievance procedure. The reason for this is that the right to a redundancy payment arises following dismissal, which does not require a grievance to be pursued before a clam can be lodged. Although I am not bound to follow this decision, it has been widely followed both in England and Wales and within this jurisdiction and I consider it appropriate to follow it in this case.

Decision

10. I accept that the claimant was employed by the respondent for thirteen complete years up to early 2011. While the initial indication to the claimant was that he had been laid off, I am also satisfied that the telephone conversation of 5 February 2011 took place and at the end of that conversation the claimant was clear that he had been “let go,” in other words that he had been dismissed. Given that conversation and the fact that Mr Gleeson of the respondent company advised the claimant that there was “no money” and that he had no work for him, I am satisfied that the claimant’s employment was terminated by reason of redundancy. In light of this it is not necessary for me to consider whether the claimant gave notice of his intention to end his employment as he would have been required to do under Article 183 of the Employment Rights (Northern Ireland) Order if he were still on layoff.

11. I accept that the claimant sent the letter which he had previously prepared to the respondent on 8 February 2011 and that that letter erroneously referred to the claimant resigning. I am satisfied however that he had already been dismissed by the respondent during the telephone conversation on 5 February 2011.

12. In light of this I believe that the letter sent by the claimant on the 8 February constitutes a grievance in relation to the respondent’s failure to pay him his redundancy payment. However, in light of the decision in Allen and Ors –v- Murdoch referred to above, I do not believe that it is necessary for the claimant to have lodged a grievance in relation to this matter or to have waited the full 28 day period before lodging a claim. In this case the claimant presented his claim with the Office of Industrial Tribunals on 7 March 2011, which is 27 days after this grievance was lodged. Accordingly, I believe that the claimant is entitled to his redundancy payment which I calculate as follows.

13. The claimant was aged 37 at the date of dismissal and had worked for the respondent for 13 full years. The claimant’s evidence was that he was paid £350.00 per week after tax, but he was not certain of the gross amount. I am satisfied that his gross pay on this basis would exceed the statutory maximum of £380.00 per week, and accordingly I intend to treat the amount of his week’s pay as £380.00 per week for the purposes of the redundancy payment.

14. I therefore calculate the amount due to the claimant as follows:-

13 weeks @ £380.00 - £4,940.00

I order the respondent to pay compensation to the claimant in the sum of £4,940.00 in respect of redundancy payment.

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

Chairman

Date and place of hearing: 28 July 2011, Belfast.

Date decision recorded in register and issued to parties:

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