Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   60/12

 

 

 

CLAIMANT:                      Marion Connolly

 

 

RESPONDENT:                Department for Employment and Learning

 

 

 

WRITTEN REASONS

1.       Torcross Ltd (“the company”) was dissolved in November 2011.

 

2.       The claimant asserts that she was employed by the company from September 1980 until October 2011.  She says that she last worked for the company on 25 August 2010, but was laid off on that date, and her employment came to an end, because of a notice which she served upon the company in October 2011.

 

3.       She says that, because of the service of that notice, and because no counter-notice was served by the company, she became entitled to a redundancy payment from the company, which the company did not pay.

 

4.       Against that background, she applied to the Department for Employment and Learning (in the Department’s role as the statutory guarantor in respect of redundancy payments) for a payment equivalent to the amount of redundancy payment which she would have received if the company had paid it to her.

 

5.       The Department refused her application.

 

6.               The claimant accordingly brought these proceedings against the Department, pursuant to Article 205 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).

 

7.       Article 205(1) is to the following effect.  Where on an application made to the Department for a payment equivalent to a redundancy payment, it is claimed that an employer is liable to pay a redundancy payment, there shall be referred to an industrial tribunal:

 

                  “… any question as to the liability of the employer to pay the [redundancy payment] …”

 

8.       The hearing in respect of this claimant’s Article 205 reference took place on 31 May 2012. 

 

9.       My decision was that I was not satisfied that the company was liable to pay the redundancy payment.  At the end of the hearing, I announced my decision.  At the same time, I gave oral reasons for that decision.  Subsequently, this claimant requested written reasons for that decision.  These are my written reasons.

 

10.     Below, I repeat the reasons which I have already given orally (at the end of the hearing).  However, in this document, those reasons have been contextualized and amplified. 

 

11.     The oral testimony in this case consisted of the testimony of the claimant and of her sister Ms Janice McGrellis.  (Ms McGrellis was also making an Article 205 appeal in her own case).  It was agreed between the Department and this claimant that the evidence in the McGrellis case should be regarded as also being evidence in this case.

 

12.     I also saw some miscellaneous documents.  

 

13.     The claimant does not claim that she was dismissed by the company.  Instead, she claims that she was laid off by the company, in August 2010, and that she continued to be employed by the company thereafter, as a laid-off employee, throughout the period from August 2010 until October 2011.  She asserts that, with effect from October 2011, she resigned from her employment, pursuant to Article 185 of the Order, and that the employer served no counter-notice. 

 

14.     Articles 183-185 of the Order are to the following effect.  (1)  At some point during a period of lay-off, or very shortly thereafter, the employee must serve on her employer a written “notice of intention to claim” a redundancy payment by reason of lay-off (“an NIC”).  (2)  That employee is also required to give one week’s statutory notice of termination of her contract (or the minimum notice required by her contract, if greater).  That notice must be given within four weeks after the service of the NIC.  (3)  If the NIC has been served, and no counter-notice is served, and the notice of resignation has been served, then the employee thereby becomes entitled to a redundancy payment.

 

15.     Accordingly, in the context of this Article 205 application, the main issues were as follows.  (1)  Was the claimant still employed by the company in October 2011?  (2)  Had she been laid off in or about August 2010?

 

16.     On both of those issues, the oral testimony which I received in this case was of crucial importance.  There was no documentation, from any source other than the claimant and her sister, Ms Marion Connolly, which supported the proposition that this claimant had been laid off in August 2010, or that she continued to be employed by the company from September 2010 until October 2011.  There was evidence which indicated the contrary (indicated that the claimant had ceased to be paid by the company long before August 2010).  That evidence consisted of the HMRC contributions record, in respect of tax deducted, and in respect of national insurance paid, in relation to the claimant’s employment with the company.  Mr Cruickshanks, for the Department, told me, and I accepted that the HMRC record showed that no deductions, and no contributions, were made in respect of the claimant in relation to any period after 31 March 2010. 

 

17.     In the context of any Article 205 application, the onus of proof is upon the appellant.  I did not regard this claimant’s evidence as being credible.  For that reason, her appeal failed.  At the end of the hearing, I gave some examples of the reasons why I did not find her evidence to be credible. 

 

18.     First, she said that she did not know anything about the circumstances in which the company had ceased to operate its supermarket at Stratfoyle, in the autumn of 2010, and that she did not know anything about the circumstances in which the company was dissolved (in November 2010).  I found that evidence to be incredible, against the following background. 

 

19.     Earlier during the hearing, as a result of an enquiry which I made, it became clear, for the first time, that the claimant and her sister, Ms McGrellis, are sisters of the two men who controlled the company.  Earlier during the hearing, I was also told that there was no family feud, between the brothers who owned the company and the two sister-applicants; it was just that the family were not good communicators. 

 

20.     Secondly, I noted that, in her oral testimony during this hearing, this claimant said that she was laid off during August 2010; however, in her application to the Department, and in her industrial tribunal claim form, she had asserted that she was laid off during the autumn of 2009.

 

21.     I was not provided with copies of any response from the company to the alleged NIC or to the alleged notice of resignation.  (I was told there had been none).  Furthermore, this claimant told me that she had had no conversations with her brothers in relation to the NIC or in relation to the notice of resignation.

 

 

 

Chairman:

 

 

Date:                      August 2012