Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/02149_11IT.html
Cite as: [2012] NIIT 02149_11IT, [2012] NIIT 2149_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2149/11

CLAIMANT: Shane Cassidy

RESPONDENT: Dromore Glass & Glazing Ltd

DECISION

The decision of the tribunal is that:-

(i) the tribunal was satisfied that the tribunal had jurisdiction to consider the claimant’s claim for a redundancy payment on the grounds that it was just and equitable that the claimant should receive a redundancy payment, pursuant to Article 199 of the Employment Rights (Northern Ireland) Order 1996; and

(ii) the claimant is awarded the sum of £1,236.00 in respect of redundancy pay.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent did not appear and was not represented.

Reasons

1.1 The claimant presented a claim to the tribunal on 19 September 2011, which he confirmed at this hearing was for a redundancy payment. The respondent did not present a response.

The claimant gave oral evidence to the tribunal. Having done so the tribunal found the facts, as set out in the following paragraphs of this decision.

2. The claimant was employed by the respondent as a glazier from 26 July 2004 until 11 November 2010. He was therefore employed for a period of six years. The claimant’s gross and net earnings were £309.00 per week and £250.00 per week respectively.

3. The claimant was made redundant on 11 November 2010, when the respondent ceased trading with immediate effect. The claimant was aged 24 years at the date of the termination of his employment with the respondent, having been born on 27 August 1986.

4.1 Under Article 199 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) it is provided:-

(1) An employee does not have any right to a redundancy payment unless, before the end of a period of six months beginning with the relevant date –

(a) the payment has been agreed and paid;

(b) the employee has made a claim for the payment by notice in writing given to the employer;

(c) a question as to the employee’s right to, or the amount of, the payment has been referred to an industrial tribunal; or

(d) the complaint relating to his dismissal has been presented by the employee under Article 145.

(2) An employee is not deprived of his right to redundancy payment by Paragraph (1) if, during the period of six months immediately following the period mentioned in that paragraph, the employee –

(a) makes a claim for the payment by notice in writing given to the employer;

(b) refers to an industrial tribunal a question as to his right to, or the amount of, the payment; or

(c) presents a complaint relating to his dismissal under Article 145;

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

(3) In determining under Paragraph (2) whether it is just and equitable that an employee should receive a redundancy payment, an industrial tribunal should have regard to –

(a) the reason shown by the employee for his failure to take any such step as is referred to in Paragraph (2) within the period mentioned in Paragraph (1); and

(b) all relevant circumstances.

4.2 There was no doubt, on the claimant’s evidence, the employment of the claimant having terminated on 11 November 2010, that before the end of the period of six months, beginning with the said date of termination, the claimant had not been paid a redundancy payment by the respondent, nor had he made a claim for a redundancy payment by notice in writing given to the respondent nor had he referred any question as to his right to or the amount of any such payment to an industrial tribunal.

4.3 In the circumstances, therefore, the claimant did not have any right to a redundancy payment, unless any of the matters set out in Article 199(2) had been complied with during the subsequent period of six months and it appeared to the tribunal to be just and equitable that the employee should receive a redundancy payment.

4.4 I was satisfied, on the claimant’s evidence, that the claimant, by presenting his claim to the tribunal on 19 September 2011, had referred to the tribunal, within the relevant six month period, following the initial six month period, a question as to his right to, or the amount of, the redundancy payment. The issue then for the tribunal was to determine whether it was just and equitable that the claimant should receive a redundancy payment.

5. In Harvey on Industrial Relations & Employment Law, it is stated at Paragraph 2129, Volume 1:-

“If he takes any one of those steps, then the tribunal may allow the late claim where ‘it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment’. That turn of phrase, and the injunction that the tribunal should have regard to all the circumstances of the case, implies that the tribunal’s discretion is not confined to the procedural question whether the employee had a reasonable excuse for his belated application but extends to a consideration whether the employee is, in a broader sense, deserving of a redundancy payment … . Moreover, the expression ‘just and equitable’ gives the tribunal more leeway than the restrictive formula, ‘not reasonably practicable’, used in connection with unfair dismissal … .”

That same restrictive formula would also be applicable to any claim for breach of contract.

6. I was satisfied, on the claimant’s evidence, that, in the period immediately following the termination of his employment, the claimant was not paid any redundancy payment; and when he telephoned one of the company directors, who told him that due to heavy debts the company was unable to pay to him any redundancy payment, the director referred him to the Redundancy Payments Branch of the Department for Employment & Learning. The claimant was somewhat uncertain about dates but it would appear that, in or about early 2011, he contacted and then sent to the Redundancy Payments Branch of the Department for Employment & Learning (‘the Department’) relevant forms/paperwork in order to make a claim from the Department for a redundancy payment. He does not appear to have received any reply in writing from the Department and, after a few months, he contacted the Department by telephone and he was informed him that his application had been rejected because the respondent had not become insolvent and he would have to make a claim to the tribunal. Unfortunately, the claimant, at that time, took no further action to present a claim to the tribunal and concentrated all his efforts on setting up his own business as a glazier, which he successfully did in or about early September 2010. It was at that time that he employed a former employee of the respondent, Mr Barry McGirr, who told him that he had successfully brought a claim to the tribunal for a redundancy payment and had been awarded a redundancy payment by the tribunal, which is set out in a decision issued on 5 August 2011 (Case Reference No: 1091/11). In light of this, the claimant then presented his own claim for a redundancy payment on 19 September 2011, as set out above. In setting up his own business, I accept the claimant had to spend a considerable period of time organising and obtaining finance and/or appropriate mean of transport. I accept this was difficult and time-consuming, having regard to his comparative youth and the present difficult economic conditions, and for which he deserves considerable credit.

7. The claimant can be heavily criticised for failing to take any action to present a claim to the tribunal, when informed of his ability to do so by the Redundancy Payments Branch, which was probably at a time when this claim would have been in time pursuant to Article 199(1) of the 1996 Order and the matters set out in Article 199(2) of the 1996 Order would not have required to be considered. However, in light of the authorities referred to in Paragraph 5. of this decision, I came to the conclusion that this failure should not prevent him making his claim, in light of the other pressures, referred to above, which were upon him at that time; but also in light of the fact that his fellow employee had brought a successful claim for a redundancy payment against the respondent, the amount of which I understand was later paid by the Department in its role of statutory guarantor. I noted also that the claimant, upon obtaining the information of the successful claim from Mr McGirr, immediately took steps to bring his claim to the tribunal. In the circumstances, I concluded that the claimant had shown it was just and equitable that he should received a redundancy payment, pursuant to Article 199(2) of the 1996 Order.

8. The claimant is therefore entitled to a redundancy payment of £1,236.00 (4 x £309.00).

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

Chairman:

Date and place of hearing: 15 December 2011, Belfast

Date decision recorded in register and issued to parties:

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