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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> York v Miss Lorna Mitchell, t/a Portg... Mr Laurence Lyness Portglenone Country Pies Limit... [2012] NIIT 00932_12IT (05 December 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/932_12IT.html
Cite as: [2012] NIIT 00932_12IT, [2012] NIIT 932_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 932/12
CLAIMANT: Allan York
RESPONDENTS: 1. Miss Lorna Mitchell, t/a Portglenone Country Pies
2. Mr Laurence Lyness
3. Portglenone Country Pies Limited
DECISION
It is the decision of the tribunal that the claimant’s claims for redundancy payment, payment in lieu of notice, and arrears of pay are well-founded. The respondent is ordered to pay the claimant the total sum of £6,010.50 which comprises the following sums:-
Redundancy Payment: £2,580.00
Payment in Lieu of Notice: £1,368.40
Arrears of Pay: £ 342.10
Automatic Unfair Dismissal: £ 1720.00
The claimant’s claim for holiday pay was allowed in part. The respondent is ordered to pay the claimant the sum of £136.84 in respect of holiday pay.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mr E Grant
Mr J Magennis
Appearances:
The claimant appeared in person and represented himself.
The respondents did not appear and did not instruct any representation but provided a response to the claimant’s ET1 and written representations.
PRELIMINARY MATTERS
1. At the outset, the tribunal considered whether the respondent to the claimant’s claim had been correctly described. In the respondent’s response it was stated that the correct respondent to the claimant’s claim was Portglenone Pies Ltd rather than Lorna Mitchell t/a Portglenone Country Pies. The claimant confirmed that he was employed by Portglenone Country Pies and indeed his written contract of employment stated his employer’s name was “Portglenone Meats and Country Pies”. He confirmed that he was employed by the Country Pies end of the business and indeed produced a dishonoured cheque drawn on the account of Portglenone Country Pies Ltd. The tribunal therefore accepts that the correct respondent to the claimant’s claim is Portglenone Country Pies Ltd and not Lorna Mitchell and Laurence Lyness. Accordingly Mr Laurence Lyness and Lorna Mitchell are dismissed as respondents to this case.
SOURCES OF EVIDENCE
2. The claimant gave evidence on his own behalf and he also provided certain documents for the perusal of the tribunal.
3. The respondent filed a response and provided written representations.
THE CLAIM AND THE DEFENCE
4. The claimant claimed that he was entitled to a redundancy payment, a payment in lieu of notice, arrears of pay and holiday pay. The respondent denied the claimant’s claims.
THE RELEVANT LAW
5. The relevant law relating to the entitlement to a redundancy payment is contained in Article 174 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).
6. The law in relation to deductions from wages is contained in Article 45 of the Employment Rights (Northern Ireland) Order 1996. The entitlement to paid leave is contained in the Working Time Regulations (Northern Ireland) 1998. The entitlement to a period of paid notice is contained in Article 118 of the Order.
THE FACTS
7. The claimant claimed that he was employed by the respondent as a baker from 24 October 2007. He explained that from early in January 2012, the claimant and fellow workers noticed that there were difficulties both in receiving their wages and with suppliers.
8. On 26 March 2012, the claimant was told by Lorna Mitchell of the respondent that the business would be closing that Friday. This was corroborated to an extent by Ms Mitchell’s Notice to Terminate dated 30 March 2012, to Norman Montgomery, saying the pie end of the business was closing. Although Ms Mitchell was to provide the claimant with the money due to him, she failed to do so.
9. It was contended by the respondent that the claimant had given notice to it by a telephone call to Norman Montgomery. The claimant denied this and the tribunal preferred his evidence as it was given in person, and not by a handwritten statement alone.
10. Around this time the claimant went to help out another bakery during his one week’s holiday. Ms Mitchell argued that that was in breach of his contract of employment but the claimant argued that he was not undertaking work in competition to the respondent, because this new bakery was a bakery baking bread and the respondent baked pies.
11. The claimant denied that he had given a week’s notice either to Norman Montgomery (the Delivery Van Man) or to Lorna Mitchell.
12. No steps were taken to discipline the claimant by Lorna Mitchell. The requirements of the Statutory Disciplinary and Dismissal procedures in Schedule One of the Employment (NI) Order 2003 were not triggered or complied with by the respondent so if the claimant’s activities in paragraph 10 were a breach of contract Ms Mitchell did not dismiss him for it.
CONCLUSIONS
13. The claimant was redundant. The department of the respondent company in which he worked had closed down. At the time of the redundancy the claimant had four completed years of service and all of those four years fell into the band where he was not below the age of 41 and as a consequence the multiplier is 1.5. The claimant’s gross weekly wage was £432.81 so the weekly statutory maximum of £430.00 applies:-
|
£430.00 x 4 x 1.5 = |
£2,580.00 |
14. Pursuant to the Employment (NI) Order 2003 the claimant is also entitled to receive payment in respect of four weeks gross pay on the grounds that he was automatically unfairly dismissed on statutory procedural grounds:-
|
£430.00 x 4 = |
£1,720.00 |
15. The claimant is also entitled to receive a payment in respect of notice and this is calculated on the basis of his net weekly wage which was £342.10:-
|
4 weeks x £342.10 = |
£1,368.40 |
16. The claimant claimed that he had 10 days holidays accrued but untaken at the time of dismissal. The holiday year ran from January to December in each year and under the contract of employment and indeed under the Working Time Regulations (Northern Ireland) 1998, holidays cannot be carried from one holiday a year to another. The respondent’s Ms Mitchell supplied a computation giving the claimant an entitlement of one day, based on a change in hours worked. As this alleged change was not reflected in the claimant’s written contract, the tribunal prefers the claimant’s evidence on this head of claim. The claimant had accrued seven days in the new holiday year by the time of his termination of employment. As the claimant admitted that he had taken five days’ holiday, then this leaves a balance of two days’ holiday accrued untaken at the date of dismissal and this is computed as follows:-
|
£342.10 ÷ 5 x 2 = |
£136.84 |
17. The claimant also claimed to be entitled to the sum of £342.10 being a cheque dated 26 March 2012 which was returned to the claimant marked “Refer to Drawer” being in respect of his penultimate week’s work and the tribunal finds this claim is well-founded.
18. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 29 August 2012, Belfast.
Date decision recorded in register and issued to parties: