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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Martin v Gary Trueman [2013] NIIT 01730_12IT (10 January 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1730_12IT.html
Cite as: [2013] NIIT 1730_12IT, [2013] NIIT 01730_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1730/12
CLAIMANT: Craig Martin
RESPONDENT: Gary Trueman
DECISION
The decision of the tribunal is that the claimant is entitled to a statutory redundancy payment of £1,610.44 and that when proceedings were commenced the respondent was in breach of his duty to provide the claimant a written statement of employment particulars and shall pay the claimant £432.00 in respect thereof. The tribunal does not have jurisdiction to entertain the claimant’s breach of contract claim in respect of notice in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 or holiday pay claim in view of the provisions of Article 30(2) of the Working Time Regulations (Northern Ireland) 1998 or guarantee payment claim in view of the provisions of Article 66(2) of the Employment Rights (Northern Ireland) Order 1996 regarding the time limits for presenting such claims. The claimant’s notice, holiday pay and guarantee payment complaints are dismissed.
Constitution of Tribunal:
Chairman (Sitting alone): Ms M Bell
Appearances:
The claimant appeared in person.
The respondent appeared in person.
1. The claimant in his claim complained that he did not have a contract of employment, had not received a redundancy payment, proper notice, holiday pay or a guarantee payment due to him on termination of his employment.
2. No response was presented by the respondent in accordance with the Industrial Tribunals (Constitution and rules of Procedure) Regulations (Northern Ireland) 2005. It was confirmed to the respondent that he was not entitled to take part in the proceedings as a response had not been entered in the proceedings. Mr Trueman confirmed that he did not seek to contest the claimant’s claim at hearing but simply to confirm that the claimant was owed monies but that he had not been in a position to pay same.
3. It was established at hearing that the claimant was employed and paid personally by Mr Gary Trueman and the title of the respondent in these proceedings is accordingly amended from ‘Gary Trueman – Heritage Kitchens’ to ‘Gary Trueman’.
ISSUES
4. The issues for the tribunal are:-
- Is the claimant entitled to a redundancy payment?
- Has the tribunal jurisdiction to entertain the claimant’s breach of contract complaint for notice pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limits for presentation of a claim?
- Has the tribunal jurisdiction to entertain the claimant’s holiday pay complaint in view of the provisions of Article 30(2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting claims?
- Has the tribunal jurisdiction to entertain the claimant’s guarantee payment complaint in view of the provisions of Article 66(2) of The Employment Rights (Northern Ireland) Order 1996 regarding the time limits for presenting claims?
- Was the respondent in breach of his duty when proceedings commenced to provide a written statement of employment particulars?
EVIDENCE
5. The tribunal heard oral evidence from the claimant and briefly heard from the respondent.
FINDINGS OF FACT
6. The claimant who was born on 11 July 1985 commenced employment on 1 September 2002 as a joiner. The claimant was paid weekly by cheque drawn on an account in the name of the respondent and Christine Trueman and understood his employment to be with Mr Trueman personally. The claimant was not provided with a written contract of employment at any time by the respondent and did not receive payslips. The tribunal finds that the claimant was employed by the respondent personally. The claimant was normally paid approximately £247.76 gross per week being £216.00 net.
7. Due to a downturn in available work the claimant was laid off from 28 February 2012 until 8 June 2012 during which time he was not paid by the respondent.
8. On the 8 June 2012 the respondent informed the claimant that he had no choice but to let him go due to the downturn in work. The claimant’s effective date of termination was the 8 June 2012.
9. Following termination of his employment the claimant tried without success to obtain payment from the respondent of monies owing to him.
10. The claimant sought advice from the Labour Relations Agency (LRA) and confirmed that he was repeatedly advised that there was a three month time limit for presentation of his notice, holiday and guarantee payment claims to an Industrial Tribunal whilst a six month time limit applied for his redundancy payment.
11. No payment was forthcoming from the respondent so on the LRA’s advice the claimant delivered a letter by hand on 13 August 2012 to him seeking payment. On receipt of the letter the respondent gave a verbal assurance that payment would be made to the claimant at the end of the following week, however this did not happen and nothing further was heard from the respondent.
12. The claimant was fully aware that the expiry of the three month time limit for presentation of his notice , holiday and guarantee payment claims was approaching and on his own evidence the lady in the LRA kept reminding him of this but despite this he knowingly let it pass as he did not want to go to tribunal.
13. The claimant presented his claim to the office of the industrial tribunals on 10 September 2012.
THE LAW
Redundancy Pay
14. Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include the fact that the requirements of that business for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.
15. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.
Notice Pay
16. Article 7 of the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 provides that an industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented:-
(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or
(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which is terminated, or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.
Holiday Pay
17. Under Article 14 of the Working Time Regulations (Northern Ireland) 1998 a worker is entitled to compensation related to entitlement to leave where his employment is terminated during the course of the leave year to be calculated in accordance with the formula set out at Regulation 14 (2). Under Regulation 30 a complaint may be presented where his employer has failed to pay him any part of an amount due under Regulation 14(2). However Regulation 30 (2) provides that an industrial tribunal shall not consider such a complaint unless it is presented before the end of three months beginning with the date on which it is alleged that the payment should have been made, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
Guarantee Payment
18. Articles 60 to 63 of The Employment Rights (Northern Ireland) Order 1996 provide for the right of an employee to a guarantee payment subject to limits set out therein in respect of days he would normally be required to work in accordance with his contract of employment but for which he is not provided with work for reasons including a diminution in the requirements of the employer’s business for work of the kind which the employee is employed to do. However under Article 66(2) an industrial tribunal shall not consider a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
19. Hence, for the time limit to be extended for a holiday pay claim, breach of contract claim for failure to give adequate notice, or guarantee payment claim, the tribunal first must be satisfied that it was not reasonably practicable for the complaint to have been lodged within the three month limit. Secondly, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. It is clear that the tribunal must be satisfied on the issue of reasonable practicability before it considers whether the further period within which the claim is lodged was otherwise reasonable. The onus to satisfy the tribunal that it was not reasonably practicable for the complaint to have been lodged within the three month limit is on the claimant.
Failure to provide written statement of employment particulars
20. Article 33(1) of the 1996 Order requires that where an employee begins employment with an employer the employer shall give to the employee a written statement of particulars of employment.
21. Under Article 27(3) of The Employment (Northern Ireland) Order 2003, where the industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate (being any of those jurisdictions listed in Schedule 4) and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) of the 1996 Order the tribunal shall increase the award by the minimum amount, being equal to two week’s pay, and if it considers just and equitable in all the circumstances, increase the award by the higher amount instead, being equal to four week’s pay. The jurisdictions listed in Schedule 4 include redundancy payments and breach of employment contract on termination.
Applying the Law to Facts Found
22. On consideration of all the evidence before it the tribunal is satisfied on a balance of probabilities of the following:-
Redundancy Pay
23. The claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the requirements of the respondent for employees to carry out joinery work in the place where the claimant was employed having diminished. The claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows:-
5 years x 0.5 x £247.76
4 years x 1 x £247.76 = £1,610.44
Notice, Holiday and Guarantee Payment
24. The claimant’s breach of contract claim for the respondent’s failure to give him sufficient notice, holiday pay and guarantee payment claims should have been presented to the tribunal at the latest by 7 September 2012, they were not however received until 10 September 2012, some 3 days after the expiry of the three month time limit beginning at best with the effective date of termination.
25. The onus to satisfy the tribunal that it was not reasonably practicable for the complaint to have been lodged within the three month time limit is on the claimant. On the claimant’s own admission he was fully aware of the applicable time limits for the presentation of his complaints, was aware that the time limit was about to pass as the LRA advisor repeatedly reminded him of this, but that he allowed it to pass as he did not want to have to go to tribunal. There is no evidence before the tribunal from which it is persuaded that it was in the circumstances of this case not reasonably practicable for the claimant to present his claim to the tribunal within the applicable three month time limit and the tribunal accordingly does not have jurisdiction to entertain the claimant’s notice, holiday or guarantee payment complaints.
Failure to provide a written statement of particulars of employment
26. The tribunal has made an award in respect of the claimant’s redundancy payment claims and finds that when the proceedings were begun the respondent was in breach of his duty to give the respondent a written statement of employment particulars and awards the claimant an amount equal to two weeks’ pay, being £432.00.
CONCLUSION
27. The decision of the tribunal is that the claimant is entitled to a statutory redundancy payment of £1,610.44 and that when proceedings were commenced the respondent was in breach of his duty to provide the claimant a written statement of employment particulars in respect of which the respondent shall pay the claimant £432.00. The tribunal does not have jurisdiction to entertain the claimant’s breach of contract claim in respect of notice in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 or holiday pay claim in view of the provisions of Article 30(2) of the Working Time Regulations (Northern Ireland) 1998 or guarantee payment claim in view of the provisions of Article 66(2) of the Employment Rights (Northern Ireland) Order 1996 regarding the time limits for presenting such claims. The claimant’s notice, holiday pay and guarantee payment complaints are dismissed.
28. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 27 November 2012, Belfast.
Date decision recorded in register and issued to parties: