Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   1264/12

 

 

 

CLAIMANT:                      Dominic Fitzpatrick

 

 

RESPONDENT:                J J MacMahon Building Contractor Limited

 

 

 

DECISION

The decision of the tribunal is that the claimant is entitled to redundancy pay in the sum of £12,900.  The claimant is further entitled to notice pay in the sum of £4,752.

 

Constitution of Tribunal:

Chairman (sitting alone):           Mrs Ó Murray

 

         

Appearances:

The claimant appeared in person.

 

The respondent was represented by Mr Sean MacMahon.

 

 

REASONS

 

1.       The claimant’s claim was for redundancy pay together with notice pay.

 

2.       I heard evidence from Mr Fitzpatrick on his own behalf and heard evidence from Mr MacMahon on behalf of the company and had regard to the documentation to which I was referred.

 

3.       The claimant was laid off on 31 August 2011 and did not work for the company thereafter.  The claimant received a guarantee payment of approximately £100 every 13 weeks during the period of lay off.

 

4.       On 16 January 2012 the claimant wrote to the respondent stating that he intended to claim redundancy and giving notice to terminate his contract of employment.  The claimant gave 12 weeks’ notice of his intention to resign and stated that his contract would come to an end on 9 April 2012.  The claimant’s letter of 16 January 2012 complies with the provisions of ERO in relation to temporary lay off as outlined in Chapter III of ERO.

 

5.       The respondent served a counter-notice on 24 January 2012 denying the redundancy and advising that the claimant had resigned.

 

6.       Mr MacMahon indicated that, at the time of the service of the counter-notice, the company was looking for new work but that no new contracts were in the offing.  It was not therefore the case that the claimant was reasonably likely to have been given paid work for a continuous period of 13 weeks within four weeks of the counter-notice. 

 

7.       I am satisfied from the evidence that there was a redundancy at the time of the claimant’s notice.  I am further satisfied that there was no reasonable likelihood of full employment at the time of the counter-notice.

 

8.       In addition I am satisfied that the resignation communicated on 16 January to expire on 9 April 2012 constituted constructive dismissal.

 

9.       The contract provided the following in relation to temporary lay off:

 

                  “It is the policy of the firm to provide regular work for all employees and to avoid the necessity for temporary lay-offs wherever possible.  There are, however, in the Construction Industry, circumstances where temporary periods of lay-off are unavoidable.  Employees may be laid off temporarily from time to time.  Employees will, however, be given as much notice of impending temporary lay-offs as is practicable in the circumstances of each particular case and will be notified in writing of the reason for the temporary lay-off.  Each individual contract of employment will continue during periods of temporary lay-off.  Payment during periods of temporary lay-off for inclement weather will be in accordance with the provisions of the General Working Rules Agreement for the Building and Civil Engineering Industry, NI and in other circumstances, the Guarantee Payments provisions of the Industrial Relations (No 2) (NI) Order 1976, as amended from time to time, shall apply.

 

                  It is a condition of employment that, if, in the shop or on the job, work is temporarily not available to an operative in his own occupation, he shall hold himself ready and willing to perform work in any other building and civil engineering industry occupation of which he is capable or at any other site or shop where work is available.”

 

10.     I have considered the relevant paragraphs of Harvey on Industrial Relations and Employment Law and the three cases named in Harvey which appear to be relevant to the position in this case namely A Dakri & Co Ltd v Tiffen 1981 IRLR 57; Kenneth MacRae and Co Ltd v Dawson 1984 IRLR 5 and McClory and Others v Post Office 1993 1ALL ER 457.

 

11.     I am satisfied that it is appropriate in the circumstances of this case to imply a term in the contract to the effect that the lay off is to be for not more than a reasonable time.  My principal reasons for so finding are as follows:

 

          (1)    The claimant had already taken a cut  in pay and a demotion from foreman/ joiner to joiner.

 

          (2)    The claimant had had to sign on for Job Seeker’s Allowance.

 

          (3)    The period of lay off had by the date of the claimant’s notice exceeded 19 weeks with no prospect of paid work.

 

          (4)    Mr MacMahon agreed that trading conditions were very difficult given the recession in the building trade.  

 

12.     As a consequence the claimant’s notice of resignation dated 16 January 2012 amounted to a dismissal.  The reason for dismissal was redundancy and the claimant was entitled to 12 weeks’ notice to expire on 9 April 2012.  The EDT is therefore 9 April 2012.

 

13.     At the date of the EDT the claimant had 26 complete years of service, his gross pay was £540 per week and his net pay was £396 per week.  At the date of dismissal the claimant was aged 61 years.

 

14.     The statutory redundancy pay due is therefore £12,900.

 

15.     The claimant was entitled to the statutory notice of 12 weeks’ net pay and the claimant is therefore awarded £4,752 in that regard.

 

16.     The total sum awarded to the claimant is therefore £17,652.

 

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

 

 

 

 

Chairman:

 

 

Date and place of hearing:  5 September 2012, Belfast.             

 

 

Date decision recorded in register and issued to parties: