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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAtee v Kilkeel Joinery Works [2012] NIIT 02638_11IT (23 February 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02638_11IT.html
Cite as: [2012] NIIT 2638_11IT, [2012] NIIT 02638_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2638/11
CLAIMANT: Alexander McAtee
RESPONDENT: Kilkeel Joinery Works
DECISION
The decision of the tribunal is that the claimant is entitled to a redundancy payment of £6,578.25 together with £2,640.00 notice pay, totalling £9,218.25.
Constitution of Tribunal:
Chairman (sitting alone): Mr S A Crothers
Appearances:
The claimant appeared and represented himself.
The respondent did not appear and was not represented.
THE CLAIM
1. The claimant claimed that he was entitled to a redundancy payment and notice payment.
THE ISSUES
2. The issues before the tribunal were as follows:-
(1) Whether the claimant is entitled to a sum in respect of notice pay.
(2) Whether the claimant is entitled to a redundancy payment.
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant and considered relevant documentation presented by him in the course of the hearing.
FINDINGS OF FACT
4. Having considered the evidence insofar as same related to the issues before, the tribunal made the following findings of fact, on the balance of probabilities:-
(i) The claimant
commenced employment with the respondent on 1 June 1976 until
24 May 2011. The claimant’s date of birth is
26 September 1959. He was aged 51 at the effective date of
termination of employment on
24 May 2011 and had worked for the respondent for 34 complete years.
His average gross wage per week was £263.13, and his net weekly wage, insofar
as it could be established in evidence, was £220.00.
(ii) In the course of the hearing, the tribunal took into account the response entered by the respondent which acknowledges that the claimant is entitled to a redundancy payment. However, it disputes his notice pay claim on the basis that he terminated his employment.
(iii) The tribunal was shown an exchange of correspondence between the respondent and the claimant and, separately between the respondent and the claimant’s solicitor. The latter correspondence includes a calculation by the respondent of the redundancy payment due to the claimant. In correspondence from the respondent to the claimant dated 30 May 2011, the respondent states as follows:-
“We are in receipt of your letter of 24 May and note you wish to terminate your employment with this company.
As you know we are hoping for an increase in orders but to date this has not materialised and in the present economic downturn prices have dropped and cash flow is a problem.
The total redundancy payment due to you is £6,578.25 but it is impossible for us to pay this in full at the present time. We can therefore offer you payments of £75.00 per week increasing this amount as and when cash flow permits.
We trust this is acceptable to you and look forward to receiving your confirmation.
Yours sincerely
for Kilkeel Joinery Works
Samuel J Graham
Partner”
(iv) The tribunal is satisfied that the claimant was made redundant by the respondent and therefore dismissed, and that he is also entitled to 12 weeks’ notice payment.
THE LAW
5. (i) Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-
“170. - (1) An employer shall pay a redundancy payment to any employee of his if the employee:-
a. Is dismissed by the employer by reason of redundancy, …
(2) Paragraph (1) has effect subject to the following provisions of this Part (including, in particular, Articles 175 - 179, 184 - 187, 190 - 196 and 199).”
(ii) Article 180(5) of the Order provides as follows:-
“Where -
a. the contract of employment is terminated by the employer;
b. the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as defined by the previous provisions of this Article).
For the purposes of Articles 23(3), 190 and 197(1) the later date is the relevant date.”
(iii) Article 180(6) provides that “the material date” means the date when notice of termination was given by the employer, or where no notice was given, the date when the contract of employment was terminated by the employer.
(iv) Article 197
of the Order provides for the amount of redundancy payment.
(v) The tribunal also considered the provisions of the Order relating to unlawful deductions from wages, together with the relevant provisions of the Working Time Regulations 1998 (as amended), insofar as relevant.
(vi) The provisions in relation to breach of contract are contained in the Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994.
CONCLUSIONS
6. Having applied the relevant principles of law to the findings of fact, the tribunal concludes as follows:-
The claimant is entitled to
12 weeks’
notice pay x £220 x 12 = £2,640.00
Redundancy pay - £263.13 x 25 = £6,578.25
Total = £9,218.25
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 12 January 2012 and 17 February 2012.
Date decision recorded in register and issued to parties: