Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/1156_12IT.html
Cite as: [2012] NIIT 01156_12IT, [2012] NIIT 1156_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1156/12

CLAIMANT: Eamonn Moore

RESPONDENT: The Elevate Group Ltd

DECISION

The decision of the tribunal is that the tribunal does not find the claimant’s respective claims for redundancy pay, holiday pay and for pay in lieu of notice to be well-founded. These claims are dismissed by the tribunal. The tribunal does find the claimant’s claim for unpaid wages to be well-founded. The tribunal Orders the respondent to pay to the claimant the sum of £3,014.28 in respect of the claim for unpaid wages.

Constitution of Tribunal:

Chairman (Sitting alone): Mr J V Leonard

Appearances:

The claimant was self-represented.

There was no appearance by or on behalf of the respondent.

REASONS

1. In his claim to the tribunal dated 21 June 2012, the claimant claimed against the respondent, respectively, notice pay, holiday pay, unpaid wages and redundancy pay. By response dated 23 July 2012, Mr Liam Ward, as a Director of the respondent company, confirmed that the claimant was an employee of the respondent company but contended that there had been no dismissal of the claimant by the respondent. It was contended in the response that the claimant had not been made redundant but, rather, that the claimant had been laid off, by agreement and that the claimant had thereafter declined a formal offer of recommencement of employment and the claimant had commenced employment with another employer. The tribunal heard oral evidence and submissions from the claimant. Accordingly, taking account of the material evidence, both oral and documentary, the tribunal had to determine the respective claims made by the claimant.

THE TRIBUNAL’S FINDINGS OF FACT

2. In consequence of the evidence, both oral and documentary, the tribunal on the balance of probabilities determined the following material facts:-

a. The claimant commenced employment with the respondent on 5 May 2003. The claimant was employed for 37.5 hours each week and his gross pay, before deductions, was £2,930.00 each month; his normal take home pay being £2,177.00 each month, that latter figure equating to £502.38, weekly.

b. The respondent encountered financial difficulties in January 2012. The claimant was notified by the respondent that the respondent was unable to pay normal wages. A period of lay off was offered to the claimant on 25 January 2012. There was no evidence of any contractual entitlement on the respondent’s part to lay off the claimant without pay.

c. The respondent contended in the response that the claimant had accepted the lay off proposal. The claimant confirmed in his evidence to the tribunal that the foregoing was correct; the claimant did accept this lay off proposal emanating from the respondent, but the matter was silent as to any express agreement that that lay off was to be without pay; in the reality that was the case.

d. The claimant’s contention in his claim form was that the respondent advised that if it could not either supply the claimant with work or pay his wage within four weeks, the claimant would be entitled to consider himself redundant.

e. The claimant commenced alternative employment on 19 March 2012.

f. The respondent’s contention, as detailed in the response, was that, notwithstanding the respondent contacting the claimant during the weeks following the lay off, the claimant did not respond to these contacts and indeed there was no further contact from the claimant until the respondent
e-mailed the claimant on 16 June 2012 to invite the claimant to meet to discuss recommencing employment. It was contended in the respondent’s response that the claimant met with the respondent for discussions on 18 June 2012 and that there was a formal offer made by the respondent to the claimant on 20 June, which offer was declined by the claimant on 22 June. The respondent contended that the claimant was not invited to apply for redundancy. However, the respondent did concede that redundancy information documentation (Form RP1) had been furnished by the respondent to the claimant. However, it was further contended that the latter was purely for information purposes and that this was not done with an intention to induce the claimant to take redundancy. An e-mail dated 9 February 2012 sent from Mr Ward to the claimant appears to have had enclosed, as an attachment, a copy of Form RP1 and the content of the
e-mail mentioned considering three options, these being, firstly, bearing with the company “through these hard times”, as it was put, secondly, accepting a lay off which might last six weeks or so and, thirdly, seeking redundancy. The claimant had sent an e-mail, the day before, 8 February 2012, to Mr Ward including the words, “I would like to advise that if you are making redundancies, I want to be considered immediately”.

g. On the claimant's claim form it is stated that the employment ended on 10 February 2012. The respondent's response form stated that the employment ended on 15 February 2012. The evidence was that claimant had claimed Jobseeker’s Allowance from 10 February 2012 until 19 March 2012. The claimant commenced alternative employment on 19 March 2012. No details of that employment were otherwise provided on the claim form, nor did the claimant provide any supplemental details in his oral evidence, save to say that the gross pay indicated in that new employment was £2,083.00 per month (the pay in the employment with the respondent having been £2,930.00 gross per month). The respondent did not dispute these foregoing figures in its response.

h. The tribunal sought from the claimant an explanation as to his own understanding, in basic terms, concerning the manner in which his employment with the respondent might have come to an end. The claimant reiterated in his oral evidence to the tribunal (confirming to an extent what had been earlier stated by him in his claim form, save that he stated “six weeks” in his oral evidence rather than “four weeks”) that the respondent was supposed to get back to him within six weeks from the lay off date. In that respect, in accordance with the claimant’s evidence, the applicable period of six weeks ran from 9 February 2012 to 21 March 2012.

i. At no time does the claimant appear to have contacted the respondent expressly to contend that there had been any repudiation of contract by the respondent or that the contract was to be deemed determined by action or default on the part of the respondent after a specific period of time had expired. Indeed the claimant expressly confirmed to the tribunal that he did not at any stage state in any manner, whether expressly or by implication, that the claimant was acknowledging any repudiation of contract and accordingly accepting the respondent’s deemed repudiation of contract which would have accordingly brought the contract to an end by such means. In regard to the statutory lay off provisions, the only document in writing which might possibly be deemed an endeavour to fulfil the statutory requirement specified in the provisions of Chapter III of the Employment Rights (Northern Ireland) Order 1996 (see below) is that part of the content of the e-mail of 8 February 2012 sent to Mr Ward which includes the words, “I would like to advise that if you are making redundancies, I want to be considered immediately”. There is no evidence that the claimant fulfilled any further statutory requirements of Chapter III of the 1996 Order.

j. The claimant applied for a redundancy payment and he filled in the Form RP1 in mid-March. His claim was rejected by the Department. There was no evidence that the claimant was paid anything by the respondent in respect of the month of January 2012 and thereafter up to the deemed date of the conclusion of this employment. The tribunal did not need to determine any other findings of fact for the purposes of its determination in the case.

THE APPLICABLE LAW

3. In relation to redundancy pay, Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that an employer shall pay a redundancy payment to any employee in the event that 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 forth in Article 174 of the 1996 Order. This provides as follows: “For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to (a) the fact that his employer has ceased or intends to cease (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business — (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”

In respect of lay off, Article 183 of the 1996 Order provides as follows:

(1) Subject to the following provisions of this Part, for the purposes of this Part an employee is eligible for a redundancy payment by reason of being laid off or kept on short-time if —

(a) he gives notice in writing to his employer indicating (in whatever terms) his intention to claim a redundancy payment in respect of
lay-off or short-time (referred to in this Part as “notice of intention to claim”), and —

(b) before the service of the notice he has been laid off or kept on
short-time in circumstances in which paragraph (2) applies.

(2) This paragraph applies if the employee has been laid off or kept on
short-time —

(a) for four or more consecutive weeks of which the last before the service of the notice ended on, or not more than four weeks before, the date of service of the notice, or

(b) for a series of six or more weeks (of which not more than three were consecutive) within a period of thirteen weeks, where the last week of the series before the service of the notice ended on, or not more than four weeks before, the date of service of the notice.

Chapter III, Articles 185 (requirement of employee’s resignation upon statutory notice being given by the employee) to 189, of the 1996 Order make further provisions regarding lay off and entitlement to redundancy payments, including employer’s counter notices, resignation on notice, dismissal and likelihood of full employment. Time limits are strictly construed.

In relation to unauthorised deduction of wages, Article 45(3) of the 1996 Order provides that: "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion". There was no valid distinction to be drawn between a deduction from a sum due, and
non-payment of that sum, as far as the relevant statutory provision was concerned.

TRIBUNAL’S DECISION

4. This case, to an extent, typifies a regrettable situation that is all too commonly encountered now in the construction industry and allied professions, with very much reduced operating revenues and with consequent difficulties in regard to the retention and remuneration of professional and other staff engaged in the industry. The case also illustrates a situation that is sometimes encountered where the employer and the employee affected do not appear to engage in a process of clear and timely communication. What is clear is that the respondent encountered cash flow difficulties; it was mutually agreed that the claimant would be laid off with effect from 25 January 2012. The tribunal has no doubt that the financial position encountered by the claimant presented difficulties. The claimant signed on for Jobseekers Allowance promptly (claimed from 10 February 2012). He actively sought alternative employment. Thankfully, he was fortunate enough to secure alternative employment on 19 March 2012, albeit at a lower wage.

5. The claimant’s contention as set forth in his claim form was that the respondent’s Director, Mr Ward, had stated to him that if the respondent could not supply the claimant with work or a wage within a period of four weeks the claimant would be entitled to consider himself redundant. The tribunal then noted that this stated period was changed to “six weeks” in the evidence of the claimant given orally. The respondent’s contention made in the response is that it had contacted the claimant during the weeks following the lay off but that the claimant did not respond. There was thus a conflict between the documentation and the claimant’s oral evidence upon that point. The respondent’s contention indeed was that the claimant did not inform the respondent at the time that other employment had been secured. Notwithstanding that, is quite clear that, whatever view the claimant might have privately at the time taken or might now take of things, the claimant did not expressly or by implication adopt the position that the contract of employment had been unilaterally repudiated by the respondent, with such repudiation being accepted by the claimant, save that the claimant did take steps to secure alternative employment, being successful in that regard on 19 March 2012. The claimant did not, upon the evidence, give notice as required in writing under Article 183 of the 1996 Order to the respondent, as employer, indicating his intention to claim a redundancy payment in respect of lay-off for the reason that the statutory notice required is conditional, in accordance with Article 183 (1) (b) of the 1996 Order, upon the employee, before the service of the notice, being laid off for four or more consecutive weeks prior to the date of service of the statutory notice (or other provisions as stipulated) and any deemed notice, such as it is, was contained in the e-mail sent by the claimant on 8 February 2012. There was no evidence of the claimant sending any other notice designed to fulfil or fulfilling the statutory requirements. It is also a stipulation that an employee under these provisions is entitled to a redundancy payment by reason of being laid off only if he terminates his contract by resignation, upon giving the statutory period of notice such as is provided for by Article 185 of the 2006 Order. These are the only provisions entitling a redundancy payment to be made in the absence of a termination by the employer.

6. As these forgoing provisions are not applicable upon the facts, the issue then presents itself for consideration - under what circumstances and by what means in this case was the employment contract determined (other than by an employee's resignation under Article 185 entitling a redundancy payment to be made)? The tribunal has considerable sympathy for the claimant, when one considers the position in which he was placed. Nonetheless, absent in this case is any express or clearly implied determination or repudiation of contract by the respondent. The respondent purported to lay off the claimant and the claimant accepted that suggestion expressly. That is quite a permissible course of action under the circumstances presenting themselves to the respondent as an employer encountering the business circumstances applicable in this case. It is to be noted that the respondent’s Mr Ward it seems made some endeavours to maintain contact with the claimant culminating in a meeting being held on 18 June 2012. In these circumstances (and in the absence of any applicability of the Article 185 provisions) the tribunal has difficulty in seeing how the contract was terminated, save in some manner in connection with the action of the claimant in securing alternative employment, which he did on 19 March 2012. However, in the claimant's claim form it appears to be accepted by him that the employment terminated on 10 February 2012 at which time the claimant sought Jobseekers Allowance. The respondent's contention is that the employment terminated on 15 February 2012. Neither party appears to be contending that the action of the claimant in securing alternative employment on 19 March 2012 was the effective cause of the determination of the contract of employment. On the claimant's own case, accordingly, it must be that the claimant terminated the employment at the time when he sought Jobseekers Allowance, that is to say 10 February 2012, at which time the contract of employment was determined upon the case made out by the claimant.

7. In order to secure a redundancy payment, any claimant must satisfy the tribunal that it is the employer who effectively terminated the contract, or in the alternative the provisions of Article 183 and following of the 1996 Order must effectively be brought into play. This is so for the reason that there must be an effective dismissal by the employer before any redundancy becomes effective, or the 1996 Order Chapter III (lay off) provisions must apply to “trigger” a redundancy entitlement by an employee’s resignation under the prescribed circumstances. These two are the only available routes to a redundancy payment entitlement. The tribunal is not satisfied that there was a dismissal by the employer under the circumstances of this case nor that the Chapter III provisions were effective, upon the facts. The claimant is certainly entitled to raise a claim for unpaid wages up to the date of termination of employment, for there was no evidence of any contractual entitlement on the respondent’s part to lay off the claimant without pay. There is no evidence that the claimant was paid any wages from the start of January 2012 up to termination of employment. The tribunal’s award in respect of wages is as set out below. However, the claimant would not be entitled to any redundancy payment, nor indeed to any pay in lieu of notice as the employer did not effectively dismiss the claimant, upon the facts.

8. The claimant’s claim for holiday pay was not the subject of any evidence and accordingly is not sustainable. Therefore, the tribunal does not find the claimant’s respective claims for redundancy pay, holiday pay and for pay in lieu of notice to be well-founded. These claims are dismissed by the tribunal. The tribunal does find the claimant’s claim for unpaid wages to be well-founded. There was no evidence of any contractual entitlement on the respondent’s part to lay off the claimant without pay. The normal take home (nett) pay was £2,177.00 each month, or £502.38, weekly. It appears that the claimant was not paid wages at all for a period from the start of January 2012 to 10 February 2012, being a period of 6 weeks. That equates to 6 x £502.38 = £3,014.28. The tribunal thus Orders the respondent to pay to the claimant the sum of £3,014.28 in respect of this claim for unpaid wages.

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

Chairman:

Date and place of hearing: 14 August 2012, Belfast.

Date decision recorded in register and issued to parties: