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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sweeney v Robert McCausland t/a Down Win... [2013] NIIT 1792_13IT (05 December 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1792_13IT.html
Cite as: [2013] NIIT 1792_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1792/13
CLAIMANT: Malachy Sweeney
RESPONDENT: Robert McCausland
t/a Down Windows Systems
DECISION
The decision of the tribunal is that:-
(1) the title of the respondent is ordered to be amended to Robert McCausland t/a Down Windows Systems;
(2) the tribunal was satisfied that it was just and equitable that the claimant should receive a redundancy payment pursuant to Article 199(2) of the Employment Rights (Northern Ireland) Order 1996;
(3) the claimant’s claim for a redundancy payment is well founded and it is declared the respondent is required to pay to the claimant the sum of £5,108.40, by way of a redundancy payment, to which he is entitled under the Employment Rights (Northern Ireland) Order 1996.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Appearances:
The claimant did not appear and was not represented.
The respondent was debarred from participating in the hearing, as he had not presented a response within the relevant time limit.
Reasons
1. The claimant presented a claim to the tribunal for a redundancy payment on 9 October 2013. The respondent did not present a response to the said claim. Further there was no counterclaim presented to the tribunal by the respondent.
2. The claimant, who was born on 30 December 1966, was employed by the respondent from 30 May 2003 until 18 January 2013 as a window fitter. He had therefore completed nine full years’ service and was aged 47 on 18 January 2013.
3. The claimant gave oral evidence and I am satisfied that, on the basis of his evidence, on the date of his said redundancy, 18 January 2013, that the respondent informed him, in writing, that he was making him redundant. I further accept, at the said date, the respondent had also informed the claimant, in writing, that he was owed by way of redundancy the sum of £4,895.55 (see later); and since the claimant owed him the sum of £1,000 in relation to the purchase of a van by the claimant from the respondent, which purchase was not disputed by the claimant, he would pay him the balance of £3,895.55, by way of instalments. The respondent had financial difficulties, due to the downturn in work, which had resulted in the claimant’s redundancy. No monies were paid to the claimant by way of instalments or otherwise. The relationship between the claimant and the respondent remained good, despite the fact that the claimant had had to be made redundant by the respondent and, over the following months, the claimant spoke to the respondent on a number of occasions about the money due and owing to him by the respondent. He promised on many occasions to pay but has not done so. In view of these promises the claimant did not pursue the claimant for monies due and owing to him, following his redundancy; but by September/October 2013, after chatting to another former employee of the respondent, he came to the conclusion that he had no alternative but to bring proceedings in the tribunal due to the failure of the respondent to pay to him. Until then, the claimant had not realised there was any time limit for tribunal proceedings nor did he make relevant enquiries about such matters, as he was reasonably confident the respondent would pay in due course.
4. Under Article 199 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order), it is provided as follows:-
(1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date—
(a) the payment has been agreed and paid,
(b) the employee has made a claim for the payment by notice in writing given to the employer,
(c) a question as to the employee’s right to, or the amount of, the payment has been referred to an industrial tribunal, or
(d) a complaint relating to his dismissal has been presented by the employee under Article 145.
(2) An employee is not deprived of his right to a redundancy payment by paragraph (1) if, during the period of six months immediately following the period mentioned in that paragraph, the employee—
(a) makes a claim for the payment by notice in writing given to the employer,
(b) refers to an industrial tribunal a question as to his right to, or the amount of, the payment, or
(c) presents a complaint relating to his dismissal under Article 145,
and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.
5. The claimant’s employment terminated, as set out above, on 18 January 2013 but his claim was not made to the tribunal until 9 October 2013. His claim was therefore not made until after the period of six months beginning with the relevant date, namely 18 January 2013, but was made during the period of six months immediately following the said period of six months referred to above. I am satisfied that the claimant, due to his good relationship with the respondent, and recognising the respondent had financial difficulties, was prepared to give the respondent some extended period of time to pay; but, when it became apparent that the respondent was not going to make any payment, he decided he required to bring a claim to the tribunal. I was satisfied that, although, the claimant had brought a claim to the tribunal within the second period of six months referred to in Article 199(2) of the 1996 Order, it was just and equitable, in the above circumstances, that he should receive the redundancy payment due to him from the respondent under the 1996 Order.
6. The claimant does not dispute that the sum of £1,000 is due and owing by him to the respondent for the purchase of the said van. However, since there is no counterclaim by the respondent and the claimant’s claim is for a statutory redundancy payment, how or when any such sum for the purchase of the van is paid by the claimant to the respondent is not a matter for these proceedings. Given the statutory calculation for the redundancy payment, pursuant to the 1996 Order, it is not for this tribunal to deduct any such sum from the redundancy payment found to be due and owing by the respondent to the claimant under the 1996 Order.
7. On foot of his claim form and the payslip/P45 documents produced to me at the hearing by the claimant, I was satisfied, on his unchallenged evidence, at the date of his redundancy, he was receiving from the respondent the sum of £425.70 gross per week. He was therefore entitled to a redundancy payment of £5,108.40 (which is calculated as follows – 12 x £425.70). I was not satisfied, in the circumstances, on the evidence before me, the redundancy payment due to the claimant, was £4,895.55, as set out in writing by the respondent on 18 January 2013.
8. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 3 December 2013, Belfast
Date decision recorded in register and issued to parties: