Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/429_12IT.html
Cite as: [2012] NIIT 429_12IT, [2012] NIIT 00429_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 429/12

CLAIMANT: Sean McAuley

RESPONDENT: William R Farquhar trading as W R Farquhar & Company

DECISION

The unanimous decision of the tribunal is that the claimant in this case was dismissed by reason of redundancy and is entitled to receive a redundancy payment and pay in lieu of notice. I order the respondent to pay the claimant the sum of £6337.60 by way of compensation, calculated as at the final paragraph of this decision.

Constitution of Tribunal:

Chairman (sitting alone): Miss E McCaffrey

Appearances:

The claimant appeared in person.

The respondent had not lodged a response and did not appear at the hearing.

The Issue:

1. The issue for the tribunal to decide was whether the claimant had been made redundant by the respondent and whether he was entitled to redundancy pay and notice pay. In the course of the hearing the claimant also raised the issue of unfair dismissal but this had not been raised as part of his claim previously.

2. The first issue in this matter was to clarify the name of the respondent. The claimant produced a P60 which he had received from the respondent, showing the name and address of his employer as William Robert Farquhar rather than W R Farquhar and Company. I therefore order that the name of the respondent should be amended to read “William Robert Farquhar trading as W R Farquhar and Company”.

3. The claimant was employed by the respondent as a labourer from 19 May 2004 until early December 2011. He was aged 61 at the date of the termination of his employment.

4. The claimant had attended a meeting regarding possible redundancies in May 2011, when the respondent put staff on notice of the possibility of redundancy. The claimant was off sick at this time and was only able to return to work in November 2011. On 25 November, he went up to the respondent’s yard to tell him that he was due to come back to work. The respondent said there would be somebody there for him on Monday morning to pick him up. The claimant waited for the van to pick him up on Monday morning, but no one came. The claimant then rang the respondent to ask what was wrong but the call was cut off. The claimant phoned on a regular basis all week but was unable to reach the respondent. The claimant then went to see the respondent the following Saturday, 3 December 2011 and at that stage the respondent told the claimant that he had no work for him.

5. The claimant advised that he had not received any itemised pay slip from the respondent nor had he received written Terms and Conditions of Employment. The claimant advised that he had worked out from the P60 he had received that his gross pay was £298.00 per week and his net pay was £263.00 per week.

Decision

6. The claimant’s claim form outlined claims for a redundancy payment, failure to pay notice pay and holiday pay. He had not made any claim for unfair dismissal and although he raised this at the hearing, it was pointed out to him that as his claim did not include a claim for unfair dismissal and was currently undefended, it would not be appropriate for the claim to be amended at this stage without the respondent being notified. Similarly, I declined to amend the claim to include a claim for written terms and conditions of employment and failure to provide itemised pay statements as these issues were not previously raised and would now be out of time.

7. I find that the claimant was made redundant by the respondent on 3 December 2011. The claimant’s claim was lodged in the Office of the Industrial Tribunals on 2 March 2012 and I therefore find that the claim was lodged in time in respect of his redundancy payments claim, claim for notice pay and claim for holiday pay.

8. The claimant advised that there were usually two days holidays at Easter and they were paid for holidays at Christmas and in July, but it depended very much on the work load whether or not they actually got the holidays. In the year before he was made redundant, the claimant advised he only had two days’ holidays at Easter. In accordance with the Working Time Regulations (NI) 1998 (as amended) and established case law, I find that the claimant is entitled to accrue holiday pay when off on sick leave and therefore was entitled to a total of 28 days holiday during the year prior to his dismissal. As he received two days holiday at Easter, he is entitled to a balance of 26 days pay in lieu of holidays.

9. I find that the claimant was dismissed by reason of redundancy and was dismissed without notice and I therefore order the respondent to pay to the claimant compensation as follows:

(a) Redundancy payment - The claimant had 7 years service all over the age of 42 and is therefore entitled to 1.5 weeks gross pay for each year of service.

Gross pay £298.00 x 7 x 1.5 = £3129.00

(b) Notice pay - The claimant is entitled to 1 week’s notice for each year of service or 1 week’s net pay in lieu.

£263.00 x 7 = £1841.00

(c) Holiday pay

26 days at (263.00/5 = £52.60 per day) = £1367.60

Total = £6337.60

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

Chairman:

Date and place of hearing: 23 May 2012, Belfast

Date decision recorded in register and issued to parties:

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