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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Martin v Systems Encore Ltd Systems Encore Ltd Department for Employment and ... [2012] NIIT 02597_11IT (23 January 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02597_11IT.html
Cite as: [2012] NIIT 2597_11IT, [2012] NIIT 02597_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 2597/11
2643/11
CLAIMANTS: 1. Zena Martin
2. Heather Isobel Crow
RESPONDENTS: 1. Systems Encore Ltd
2. Department for Employment and Learning
DECISION
(A) The decisions in the Martin case are as follows:
(1) The claimant’s claim against Systems Encore Ltd (“the Employer”) is well-founded and it is ordered that the employer shall pay the claimant the sum of £1,022 in respect of wages.
(2) The claimant’s claim in respect of holiday pay is well-founded and it is ordered that the Employer shall pay to the claimant the sum of £55 in respect of holiday pay.
(3) The claimant’s claim in respect of notice pay is well-founded and it is ordered that the Employer shall pay to the claimant the sum of £730 in respect of notice pay.
(4) It is declared that the Employer is liable to make a redundancy payment of £1,369 to the claimant.
(B) The decisions in respect of the Crow case are as follows:
(1) The claimant’s claim in respect of wages is well-founded and it is ordered that the Employer shall pay to the claimant the sum of £1,353 in respect of wages.
(2) The claimant’s claim in respect of holiday pay is well-founded and it is ordered that the Employer shall pay £226 to the claimant in respect of holiday pay.
(3) The claimant’s claim in respect of notice pay is well-founded and it is ordered that the Employer shall pay to her the sum of £2,500 in respect of notice pay.
(4) It is declared that the Employer is liable to make a redundancy payment of £4,761 to the claimant.
(5) The claimant’s statutory guarantee appeals (against decisions made by the Department) in relation to wages, holiday pay and notice pay are dismissed.
(6) Pursuant to Article 205 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), I reiterate that the Employer is liable to this claimant in respect of redundancy pay and I determine that the sum payable to the claimant in respect of redundancy pay, in accordance with Article 203 of the Order, is £4,761.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
Each of the claimants was self-represented.
The Employer was not entitled to participate in either of these cases, because no response had been presented by the Employer.
The Department was represented by Mr P Curran.
REASONS
1. At the end of the hearing, I issued my decision orally. At the same time, I gave reasons orally. Accordingly, what follows is by way of summary only.
2. With the agreement of all of the participating parties, I decided that these two claims should be considered together.
3. I received sworn oral testimony from each of the claimants. I was satisfied that each of the claimants was an honest and reliable witness.
4. In each of these cases, each claimant made claims against the Employer.
5. Both Ms Martin and Ms Crow had made applications to the Department (in the Department’s role as the statutory guarantor in respect of certain debts) for payments in respect of wages, holiday pay, notice pay and redundancy pay. Each claimant’s application had been refused by the Department, because of the limited documentary proof which was available for the purpose of substantiating their respective applications.
6. In these proceedings, (alongside her claims against the Employer), Ms Crow appeals against the Department’s refusal of her statutory guarantee applications.
7. Perhaps through an oversight, Ms Martin had not asked for these proceedings to be extended to include appeals against the Department’s statutory guarantee decisions in her case.
8. Because it seemed likely that any finding of liability against the employer in relation to a redundancy payment would result in the Department having to make a payment in respect of redundancy to Ms Martin (in the Department’s role as statutory guarantor), I invited Mr Curran to participate, on behalf of the Department, in the Martin proceedings. He acceded to that invitation. (The Department has the right to participate, as if it was a party, in any proceedings which may involve a payment out of the Northern Ireland National Insurance Fund. That right is conferred by Rule 51 of the Industrial Tribunals Rules of Procedure).
9. Ms Crow’s appeals against the Department’s statutory guarantee decisions in respect of wages, holiday pay and notice pay must be dismissed for the following reason. The Department has no power to make any statutory guarantee payment in respect of unpaid wages, holiday pay or notice pay unless and until the relevant employer has become “formally” insolvent, and this employer has not, as yet at any rate, become formally insolvent.
10. In each case, I awarded sums in respect of wages and holiday pay on a gross pay basis.
11. Notice pay claims are claims for breach of contract. Accordingly, the amount due in respect of such claims is based on net pay. Furthermore, it is necessary to take account both of any social security payments which a claimant receives (or could have received) during the notice period, and of earnings, from a new employer, received during the notice period.
12. I have applied the principles stated in the last paragraph above in calculating the amount of notice pay due to each of the claimants in this case.
13. My understanding is that Mr Curran does not accept that the duty to take account of “new” earnings, earned during the notice period, is limited to taking account of earnings which were made possible by the early termination of the contract. In essence, he would argue that all “new” earnings during the notice period, should be taken into account, not just those new earnings which were made possible by reason of the termination of the contract.
14. Accordingly, in deciding the amount of notice pay due to Ms Crow in this case, I have been faced with two possibilities:
(1) Either I should take account only of new earnings which were made possible by reason of the termination of the contract without notice; or
(2) I should take account of all the new earnings which were earned during the notice period.
15. In calculating the amount of notice pay due to Ms Crow, I have assumed (without deciding) that it is proper only to deduct those new earnings which have become possible because of the early termination of the contract.
16. I have made that assumption in favour of Ms Crow because no defence to the notice pay claim has been lodged by the Employer, and because the Department currently has no practical interest in the outcome of the notice pay claim against the employer (for the reason specified at paragraph 9 above).
17. The amount payable to the claimant in respect of notice pay seems at present to be of merely academic significance, because the claimants are not confident the company will have the funds to meet the amount of the notice pay awards against it.
18. If the Employer in due course becomes formally insolvent, Ms Crow will no doubt at that stage make an application to the Department in respect of notice pay. If the amount which the Department pays to her at that time is satisfactory to her, the matter will end there. If the amount then paid by the Department is unsatisfactory to her, she will no doubt appeal to an industrial tribunal. In those circumstances, on the basis of full argument from the Department and full argument from the claimant, which may be made at that time, I will of course be willing to reconsider the question as to the amount which is properly due to the claimant in respect of notice pay.
19. In calculating amounts due in respect of redundancy pay, I have taken account of each claimant’s gross weekly pay, age and length of service.
20. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 January 2012, Belfast.
Date decision recorded in register and issued to parties: