Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/02602_11IT.html
Cite as: [2012] NIIT 02602_11IT, [2012] NIIT 2602_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2602/11

CLAIMANT: Colin McPherson

RESPONDENT: B Mullan & Sons Contractors Limited

DECISION

The decision of the tribunal is that the respondent is hereby ordered to pay to the claimant a total sum of £2,886.00 (gross) in respect of pay in lieu of notice.

Constitution of Tribunal:

Chairman (Sitting alone): Ms J Turkington

Appearances:

The claimant appeared and was represented by Mrs L McLaughlin.

The respondent appeared and was represented by Mr Sam Kelly.

THE CLAIMS

The claimant brought the following claims before the tribunal:-

1. A claim for breach of contract in respect of the respondent’s failure to pay notice monies.

2. A claim in respect of the respondent’s failure to pay a statutory redundancy payment to the claimant upon termination of his employment.

THE ISSUES

The issues to be determined by the tribunal were:-

3. The correct identity of the respondent. This issue was raised at the beginning of the hearing and all parties agreed that the correct respondent was B Mullan & Sons Contractors Limited. The title of the proceedings is hereby amended accordingly.

4. Whether the respondent failed to provide the required period of notice to the claimant or to pay the claimant in lieu of notice and, if so, the amount of pay in lieu of notice due to the claimant.

5. The claimant confirmed at the outset of the hearing that he has now received a statutory redundancy payment from the respondent and this aspect of the claim has therefore been resolved.

SOURCES OF EVIDENCE

6. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by both parties and the submissions made by both parties.

CONTENTIONS OF THE PARTIES

7. There was little, if any, dispute between the parties in relation to the facts of the case. The respondent contended in its response form and at the hearing that it had in June 2009 given formal written notice of termination to the claimant and that this notice was still valid and effective when the claimant’s employment was terminated in September 2011.

8. The claimant’s representative rejected this contention and pointed out that there was a gap of some 18 months between the written notice relied upon by the respondent and the eventual termination of the claimant’s employment. It was contended on behalf of the claimant that this notice was no longer valid and the respondent was required to give fresh notice of termination. The claimant’s representative also pointed out that the failure to give clear notice of termination meant the claimant did not have an opportunity to look for alternative work before the termination of his employment.

FACTS OF THE CASE

Having considered the claim form and response form, and having heard the claimant’s evidence and considered the documents submitted by the parties, the tribunal found the following relevant facts:-

9. The claimant started his employment as a tar mixer man with the respondent on 28 July 2000.

10. The claimant worked 39 hours per week on average and he was paid £7.40 per hour gross.

11. On or about 29 January 2010, the claimant received a letter from the respondent which indicated that his position was to be made redundant and notice of 9 weeks would commence with immediate effect. However, the claimant’s employment did not terminate at the end of this period of 9 weeks. The claimant’s employment continued thereafter with the claimant continuing to work and receive pay as before. The claimant did not receive any further formal letters from the respondent nor were there any formal meetings with him concerning his employment with the respondent.

12. On 15 September 2011, the claimant received a letter signed by the Managing Director of the respondent stating that, with effect from 23 September 2011, his position would become redundant. The letter further stated that the claimant “had already worked his period of notice”. The claimant’s employment did then terminate on 23 September 2011.

13. On 19 September, the claimant wrote to the respondent stating that he was objecting to the company’s decision not to award him a period of notice. He contended that he was entitled to 10 weeks notice. He asked for this to be rectified with immediate effect. The claimant did not receive any specific response to this letter.

STATEMENT OF LAW

14. By Article 118 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), the notice required to be given by an employer to terminate the contract of employment of an employee is one week’s notice for each year of continuous employment between 2 years and 12 years.

15. To be effective, notice must be expressed to expire on a certain specified or ascertainable day, or upon the occurrence of a specified event (see Morton Sundour Fabrics Ltd v Shaw (1966) 2 ITR 84; Burton Group Ltd v Smith [1977] IRLR 351). Accordingly, mere warning that his or her job will come to an end at some point in the future does not constitute notice of dismissal (Devon County Council v Cook [1977] IRLR 188; International Computers Ltd v Kennedy [1981] IRLR 28).

CONCLUSIONS

16. In this case, essentially the only matter in dispute between the parties was whether the notice of termination of employment given by the respondent in January 2010 was still effective in respect of the eventual termination of the claimant’s employment in September 2011.

17. The tribunal has concluded that the position can be analysed as follows. Upon the expiry of the 12 weeks notice given in January 2010, the respondent, to its credit, found that it was able to continue the claimant’s employment. The claimant’s employment continued by mutual agreement. The claimant was not notified that the notice period was being extended. That notice therefore expired without being implemented. The tribunal believes that from 2010 onwards, the claimant would have been aware in general terms that his employment remained in jeopardy. However, the claimant was not aware that his employment was to terminate on a particular date in the future. The tribunal considers the position to be similar to that in the cases of Cook and Kennedy referred to at para 15 above in which the employees had been warned that their job would come to an end at some point in the future. That does not constitute notice of termination.

18. Accordingly, the tribunal has concluded that the notice of termination given to the claimant in January 2010 had expired and was no longer valid at the date of termination of the claimant’s employment on 23 September 2012.

19. The claimant therefore received only 1 weeks notice of termination, that is from 15 September 2011 to 23 September 2011. In view of his length of service, the claimant was entitled to receive 11 weeks notice. The claimant is therefore entitled to pay in lieu of notice calculated as follows:-

10 weeks multiplied by £288.60 per week (gross) = £2,886.00 (gross)

20. The respondent is therefore order to pay to the claimant the sum of £2,886.00 (gross) by way of pay in lieu of notice.

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

Chairman:

Date and place of hearing: 7 March 2012, Belfast.

Date decision recorded in register and issued to parties:

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