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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCann v Seamus Toner Seamus Toner TMA Contracts Ltd Seamus Toner Niall McAllister [2012] NIIT 00311_12IT (27 June 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/311_12IT.html
Cite as: [2012] NIIT 00311_12IT, [2012] NIIT 311_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2866/11
311/12
314/12
CLAIMANTS: 1. Lyndsay Kyle
2. Roisin McCann
3. Kevin Kearney
RESPONDENTS: 1. TMA Contracts Ltd
2. Seamus Toner
3. Niall McAllister
DECISION
The Kyle case
(A) None of the claimant's claims against TMA Contracts Ltd is well-founded. Accordingly, all of those claims are dismissed (because Ms Kearney was never employed by that company).
(B) The claimant’s claim against Mr Toner for holiday pay is well-founded and it is ordered that he shall pay to the claimant the sum of £720 in respect of holiday pay.
(C) The claimant’s claim against Mr Toner in respect of notice pay is well-founded and it is ordered that he shall pay to the claimant the sum of £300 in respect of notice pay.
(D) The claimant’s redundancy pay claim against Mr Toner is well-founded and it is declared that he is liable to make a redundancy payment of £540 to the claimant.
(E) None of the claimant’s claims against Mr McAllister is well-founded. Accordingly, all of those claims are dismissed.
The McCann case
(A) The claimant's claim against Mr Toner in respect of notice pay is well-founded and it is ordered that he shall pay to the claimant the sum of £2,089 in respect of notice pay.
(B) The claimant's claim against Mr Toner in respect of redundancy pay is well-founded and it is declared that he is liable to make a redundancy payment to the claimant of £3,400.
(C) None of the claimant’s claims against Mr McAllister is well-founded. Accordingly, all of those claims are dismissed.
The Kearney case
(A) The claimant’s notice pay claim against Mr Toner is well-founded, but the claimant is not entitled to any award in respect of notice pay.
(B) The claimant's redundancy pay claim against Mr Toner is well-founded and it declared that he is liable to make a redundancy payment of £3,600 to the claimant.
(C) None of the claimant’s claims against Mr McAllister is well-founded. Accordingly, all of those claims are dismissed.
Constitution of Tribunal:
Chairman (Sitting alone): Mr P Buggy
Appearances:
Each of the claimants was self-represented.
TMA Contracts Ltd had not presented a response to these proceedings and accordingly was debarred from participating in these proceedings.
Mr Toner was not present or represented at this hearing.
Mr McAllister was not present or represented at this hearing.
REASONS
1. These three cases were consolidated by order dated 18 April 2012.
2. Ms Kyle is the only one of the three claimants to have made a claim against TMA Contracts Ltd.
3. In their respective claim forms, Ms McCann and Mr Kearney made claims only against “Toner McAllister Contracts”. I am satisfied that this is merely a trade name for the unincorporated partnership of Seamus Toner and Niall McAllister. Accordingly, in the McCann and Kearney cases, I have decided that the title of the respondent should be amended so as to substitute “Seamus Toner” and “Niall McAllister” for “Toner McAllister Contracts”.
4. On 23 March 2012, Mr McAllister’s solicitors, Mallon McCormick, wrote to the Office of the Industrial Tribunals. In that letter, they accepted that Mr McAllister had been in partnership with Mr Toner, t/a Toner McAllister Contracts. They asserted that Mr McAllister had “left the partnership” on or about 8 July 2011.
5. In the course of their letter, Mallon McCormick made the following points:
“2. We understand from our client that a payment was made to Mr Kevin Kearney of £3,000 by way of cheque on 22 August 2011. It is our client’s belief that on the basis of the attached letter that this was made in full payment of any redundancy claim he may have had. This may have to be clarified with Mr Kearney.
3. We further understand that a payment was made to Mrs Roisin McCann also on 22 August 2011 of £2,500 by way of cheque. Our client is not aware of what this was in respect of but has made a not unreasonable assumption that this was also in respect of a redundancy payment. This may also have to be clarified by Ms McCann.”
6. By letters dated 26 April 2012, the respondent, Seamus Toner, wrote to the Office of the Industrial Tribunals to support the claims (of Ms Kyle, Ms McCann and Mr Kearney) against his business, in respect of notice pay and in respect of redundancy pay.
7. Mr Toner sent three letters in all.
8. In the letter in respect of the McCann case, Mr Toner made the following comments:
“However, a lump-sum payment of £2,500 was made to Roisin before the business actually ceased trading. For the avoidance of doubt, this was not a redundancy payment but merely money outstanding in wages and expenses.”
9. In the letter in relation to the Kearney case, Mr Toner made the following comments:
“However, a lump-sum payment of £3,000 was made to Kevin while the business continued to trade. For the avoidance of doubt, this was not a redundancy payment but merely money outstanding in wages and expenses.”
10. In a letter dated 16 April 2012, Mallon McCormick enclosed copies of the cheques which had been paid to Ms McCann and Mr Kearney.
11. In the same letter, that firm made the following comments:
“As [Mr McAllister] had left the company before these payments had been made, he has no further knowledge of anything that took place and due to the insolvency of the company our client can offer no further assistance to the Tribunal.
Please note our client will not be in [a position] to attend the hearing and his involvement in this process is at an end.”
12. I am satisfied that, until July 2011, the relevant business had been run as an unincorporated partnership and that, at that time, the two partners were Mr Toner and Mr McAllister. Every partner in an unincorporated partnership is liable jointly with any other partner for all debts and obligations of the firm incurred while he is a partner. (See “Halsbury’s Laws of England”, Volume 35, paragraph 65.)
13. I note that, in this case, it
appears that the partnership had been dissolved by the time that the relevant
debts (the debts which are the subject of the claims by the claimants in these
proceedings) had been incurred. In those circumstances, it seems to me to be
clear that all the claims against Mr McAllister are not
well-founded.
14. Ms McCann is Mr Toner’s sister. The cheque which was given to Ms McCann on 22 August was not accompanied by any note which explained what the cheque was for. According to the claimant's testimony, it was given to her, not for redundancy, but as a way of repaying her for hours which she had put in, without pay, during periods of maternity leave.
15. I have reservations about the credibility of that aspect of Ms McCann’s evidence. My reservations in relation to that aspect of her evidence caused me to have concerns about the reliability of her testimony generally.
16. Mr Kearney is Mr Toner’s uncle. Mr Kearney told me that the cheque which he was given, after the termination of his employment, was a cheque to reflect the fact that he had worked for three to four days per week, for Mr Toner, throughout the five or six week period immediately after the termination of his employment.
17. I have reservations about the credibility of that aspect of Mr Kearney’s evidence. My reservations in relation to that aspect of his evidence caused me to have concerns about the reliability of Mr Kearney’s evidence generally.
18. Ms Kyle told me that she is not related in any way to Mr Toner or to Mr McAllister. I regarded her evidence as being plausible, internally consistent and generally reliable.
19. Although I have doubts about the reliability of some aspects of the testimony of Ms McCann and Mr Kearney respectively, the reality is that the relevant respondent (Mr Toner) has sent letters to the Office of the industrial tribunals endorsing the notice pay and redundancy pay claims of Ms McCann and Mr Kearney.
20. It is true that there seem to be substantial grounds for believing that any claims awarded against Mr Toner will not be enforceable, in practice, against him. However, in the event of Ms McCann or Mr Kearney invoking the statutory guarantee (by applying to the Department for Employment and Learning in that Department’s role as the statutory guarantor in respect of concern employment debts), it seems that the Department, which has not participated in these proceedings, will not be bound by the outcome of these proceedings. (See Secretary of State for Employment v Globe Elastic Thread Co Ltd [1979] IRLR 327 and Jones v Secretary of State for Employment [1982] 1 ICR 389).
21. Against that background, and for those reasons, I have decided that each of the claims of Ms McCann and Mr Kearney, against Mr Toner, is well-founded, and I have calculated the amounts due to them, in respect of the relevant claims, on the basis of their respective sworn oral testimonies, on the assumption that all of their sworn testimony has been truthful and accurate.
Notice pay generally
22. Notice pay, in each case, has been calculated on the following basis. First, I have identified the net weekly pay, which the relevant claimant would have received during the notice period, if proper notice had been given. From that amount, I have deducted any amount in respect of any remuneration received from “new” employment during the notice period, along with the amount of any social security benefits which became payable to the relevant claimant, because of the termination by the respondent of the claimant’s employment, or the amount of any benefits which would have been receivable by that claimant if the claimant had claimed those benefits.
The amounts awarded (Kyle)
23. In Ms Kyle’s case, I was satisfied that, at the termination of her employment, she was due payment in respect of 12 days of accrued holiday leave which she had not taken. Her gross daily pay was £60. Accordingly, the amount due to her in respect of holiday pay is £720.
24. Ms Kyle was entitled to notice pay of £300. That sum is calculated as follows. First, because a claim for notice pay is a claim for breach of contract, it has to be calculated on the basis of net weekly pay. (The claimant’s net weekly pay was £165.) Secondly, from that amount, it is necessary to deduct the amount of any salary gained from new employment (if that new employment became possible on account of the termination of the old employment), and any sum received, or receivable, by way of social security benefits. I have calculated, that throughout the claimant's notice period, she was entitled to receive £65 per week in Job Seekers Allowance. Because the claimant was employed by the respondent for more than three years and less than four years, she was entitled to three weeks notice, and she received none.
25. Ms Kyle was entitled to redundancy pay of £540. That sum has been calculated in the following manner. First, I was satisfied that the claimant’s gross weekly pay was £180. Secondly, I was satisfied that she had been between 22 and 41 years of age throughout her entire period of service with the business. Thirdly, I was satisfied that the claimant had been employed for more than three years in the business, but for less than four years.
The amounts awarded (McCann)
26. I am satisfied that Ms McCann had been employed by the business for 10 full years and for less than 11 years. I was satisfied that her weekly gross pay was £340 and that her weekly net pay was £276. I have calculated that, throughout her notice period, she was entitled to receive job seekers allowance of £67.50 per week.
27. I was satisfied that, throughout the period of her employment with the respondent, she was more than 21 years of age and less than 41 years of age.
28. I am satisfied that she had received no advance notice of the termination of her employment.
The amounts awarded (Kearney)
29. I was satisfied that Mr Kearney had been employed by the business for more than five years, and less than six years, at the time of the termination of his employment. I have concluded, for the purpose of the present proceedings, that he received no due notice of the termination of his employment. I am satisfied that his weekly wage was £480 gross and £372 net.
30. I have concluded that the claimant's gross notice pay entitlement was £1,860 (which is based on net weekly pay, during the notice period, of £372). However, from that must be deducted the amounts which were paid to the claimant in respect of work allegedly carried out by him, for Mr Toner, during the notice period. According to Mr Kearney’s own sworn oral testimony in these proceedings, the £3,000 cheque, which was paid to him on 22 August, covered work carried out by him during the notice period. Accordingly, Mr Kearney’s notice pay entitlement is reduced to nil.
31. Mr Kearney’s redundancy pay entitlement has been calculated on the following basis. First, I have noted that he was paid £480 gross per week. However, the amount of a weeks pay, for redundancy pay calculation purposes, has to be reduced (See Article 23 of the Employment Rights (Northern Ireland) Order 1996). As so reduced, the amount of gross weekly pay, for redundancy pay purposes, is £400. So I have calculated the claimant’s redundancy pay entitlement on the basis of £400 per week. He was employed by the business for five full years, but less than six years. If he had received the due notice, he would have been entitled to redundancy pay based on six years of employment. Therefore, pursuant to Article 180(5) of the 1996 Order, I have calculated his redundancy pay entitlement on the basis of a deemed service of six years. Throughout his period of employment in the business, the claimant was aged more than 41 years of age. Accordingly, the multiplier, for the purposes of calculating redundancy pay, is nine.
Interest
32. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 8 May 2012, Belfast.
Date decision recorded in register and issued to parties: