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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ritchie v A Magee Enterprises Ltd [2012] NIIT 02817_11IT (27 February 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02817_11IT.html
Cite as: [2012] NIIT 02817_11IT, [2012] NIIT 2817_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2817/11
CLAIMANT: Kirsty Eileen Ritchie
RESPONDENT: A Magee Enterprises Limited
DECISION
The claimant is entitled to a redundancy payment, the respondent shall pay the claimant £1,512.00 .The tribunal does not have jurisdiction to entertain the claimant’s breach of contract claim for pay in lieu of notice and holiday pay claim in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and Regulation 30 ( 2 ) of the Working Time Regulations (Northern Ireland ) 1998 regarding the time limits for presenting such claims. The claimant’s claims for pay in lieu of notice and holiday pay are accordingly dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Ms M Bell
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented.
1. The claimant in her claim complained that she had not received a redundancy payment, pay in lieu of notice or holiday pay due to her on termination of her employment.
2. No response was presented by the respondent.
Issues
3. The issues before the tribunal were:
- Is the claimant entitled to a redundancy payment?
- Has the tribunal jurisdiction to entertain the claimant’s claims for pay in lieu of notice and holiday pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and Regulation 30 (2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting such claims? That is,
- Were the claims presented in time? If not,
- Was it not reasonably practicable for the claims to be presented in time? If so,
- Were the claims presented within such further period as the tribunal considers reasonable?
If so,
- Is the claimant entitled to pay in lieu of notice and holiday pay?
Evidence
4. The tribunal considered the claim, and heard oral evidence from the claimant.
Findings of Fact
5. The claimant who was born on 31 July 1974, commenced employment with the respondent as a radio operator on 1 February 2004. The claimant was paid £216 gross per month.
6. The claimant was informed by her boss Mr Gary Anderson on 16 August 2011 that her employment with the respondent company was being terminated from the 17 August 2011 by reason of redundancy because the respondent was facing insolvency and he no longer intended to continue to run the business.
7. The claimant’s effective date of termination was 17 August 2011.
8. No payment was made to the claimant on termination of her employment for redundancy, pay in lieu of notice or holidays accrued due.
9. After termination of her employment the claimant went on honeymoon for three weeks until 14 September 2011.On her return the claimant telephoned the Redundancy Payments Service on a telephone number given to her by Mr Anderson and obtained and submitted to them a claim form for a payment following her redundancy.
10. The claimant did not seek any advice following termination of her employment and gave evidence that she did not think that she needed to, that Mr Anderson had advised her and obtained the Redundancy Payments Service telephone number for her to whom she had submitted a claim and spoken to a number of times.
11. In one of her conversations with the Redundancy Payments Service the claimant was informed that it could only hold her claim form for four weeks pending completion of the respondent’s insolvency and that otherwise it would have to be rejected and she would have to make a claim to the Office of the Industrial Tribunals to pursue the matter. The claimant subsequently received a letter of rejection in November 2011 and immediately went online and completed and submitted her claim to the Office of the Industrial Tribunals.
12. The claimant gave evidence that she was at no time aware that a three month time limit normally applies for pursuing notice and holiday pay claims to tribunal and that it had been a hectic time for her following termination of her employment with getting married, going on honeymoon and looking for a new job which she succeeded in doing after four weeks in another cab firm and that she has since left it and taken on a full time job with the Croft Community.
13. The claimant’s claim was presented to the office of the tribunals on
22 November 2011.
The Law
14. Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 and include if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him.
15. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.
16. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment subject to the time limits set out in Article 7. Whilst longer time limits usually apply for bringing a breach of contract claim in the civil courts, an Industrial Tribunal, under Article 7, shall not however entertain a contract claim unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the applicable period, within such further period as the tribunal considers reasonable.
17. The Working Time Regulations (Northern Ireland) 1998 provide for a worker to have minimum leave in a year and for an employer on termination of employment to make a payment in lieu of leave accrued due but not taken. However, under Regulation 30 (2), an Industrial Tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the date on which it is alleged the payment should have been made, or, within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable to be presented before that period of three months.
Applying the Law to Facts Found
18. On consideration of all the evidence before it the tribunal is satisfied of the following:
Redundancy Payment
19. Based on the claimant’s undisputed evidence, the claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent intending to cease to carry on the business for the purposes of which the claimant was employed by him. On termination of her employment the claimant had seven complete years of service during which she was not below the age of 22. Accordingly the claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows;
7 years continuous employment x 1 x £216 = £1,512.00
Notice and Holiday Pay
20. The claimant’s claims for pay in lieu of notice and holiday pay accrued due were received by the Office of the Industrial Tribunals outside the time limit of 3 months set out under Article 7 of the 1994 Order and Regulation 30 (2) of the 1998 Regulations on 22 November 2011 and so were received out of time. Accordingly the tribunal must decide whether it was not reasonably practicable for the claimant to present her breach of contract claims for pay in lieu of notice and holiday pay to the tribunal within the applicable 3 month time limits, and if satisfied of this, whether the claims were then presented within such further period as the tribunal considers reasonable.
21. It is the claimant’s duty to show precisely why it was that she did not present her complaint in time. The tribunal notes that the claimant did not seek advice as to her rights after her employment ended as she did not consider that she needed to, her evidence was that she was not at any stage aware of the applicable time limits. Ignorance of one’s rights will rarely be an acceptable reason making it not reasonably practicable for not presenting a claim in time. A claimant is generally expected to make suitable enquiries as to their rights, ignorance of the time limits for submission of a claim to the Industrial Tribunal will rarely be acceptable as a reason for delay. A claimant generally aware of their rights is then under an obligation to seek information and advice about how to enforce them. Whilst the tribunal appreciate that it was a busy time for the claimant immediately after her employment ended until her return from honeymoon and obtaining and starting a new job in September 2011, it notes on her evidence she had been informed by Redundancy Payments Service that it would only hold her claim for four weeks and on rejection a claim to the tribunal would then need to be made, that she was able then to access the internet to complete and submit a claim form on the day of receipt of a rejection letter. The tribunal considers that there is no evidence to satisfy it that it was not reasonably practicable for the claimant to present her claims for notice and holiday pay within the required time limit of three months and finds that it accordingly does not have jurisdiction to entertain her pay in lieu of notice and holiday pay claims in view of the provisions of Article 7 of the 1994 Order and Regulation 30 (2) of the 1998 Regulations regarding the time limits for presenting such claims.
Conclusion
22. The claimant is entitled to a redundancy payment under Article 170 of the 1996 Order from the respondent of £ 1,512.00. The tribunal does not have jurisdiction to entertain the claimant’s claims in respect of breach of contract for pay in lieu of notice or holiday pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and Regulation 30 (2) of the Working Time Regulations (Northern Ireland) 1998 respectively regarding the time limits for presenting such claims. The claimant’s claims for notice pay and holiday pay are accordingly dismissed.
23. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.
Chairman:
Date and place of hearing: 7 February 2012, Belfast.
Date decision recorded in register and issued to