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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cromie v Perry McKee Homes Limited [2013] NIIT 02520_12IT (07 March 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/2520_12IT.html
Cite as: [2013] NIIT 2520_12IT, [2013] NIIT 02520_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2520/12
CLAIMANT: Aaron Cromie
RESPONDENT: Perry McKee Homes Limited
DECISION
The decision of the tribunal is that the claimant is entitled to a statutory redundancy payment of £2,870.00. 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. The claimant’s holiday payment complaint is dismissed following its withdrawal.
Constitution of Tribunal:
Chairman (Sitting alone): Ms M Bell
Appearances:
The claimant was represented by Mr James Anderson, Barrister at Law, instructed by Gordon Bell and Sons Solicitors.
The respondent was not in attendance.
THE CLAIM AND RESPONSE
1. The claimant in his claim complained that he was due a redundancy payment, notice pay and holiday pay following 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.
3. The claimant’s holiday pay claim was withdrawn at the outset of the hearing and it was confirmed at hearing that the claimant was employed by Perry McKee Homes Limited and accordingly the proceedings against the second, third and fourth named respondents, Alan McKee, Perry McKee and Mary McKee are dismissed.
ISSUES
4. The issues for the tribunal were:-
- 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?
EVIDENCE
5. The tribunal considered documentation produced by the claimant and heard oral evidence from him.
FINDINGS OF FACT
6. The claimant who was born on 6 December 1984 commenced a placement with the respondent as an apprentice bricklayer in 2001; he subsequently became employed as a bricklayer by the respondent in early 2003. The claimant was normally paid approximately £410.00 gross per week being £318.06 net.
7. Due to a downturn in available work the claimant was laid off from 11 May 2012 until 31 July 2012. After he was initially laid off the claimant gave evidence that he approached the respondent to enquire whether he was entitled to a redundancy payment but was told that he was ‘still on the books’. The claimant returned to work at the respondent’s request from 31 July 2012 until 2 August 2012 after which the respondent again had no further work for him to do.
8. The claimant’s effective date of termination was 2 August 2012.
9. Following termination of his employment the claimant tried without success to obtain his P45 and payment from the respondent of monies owing to him.
10. On or around 24 or 25 November 2012 the claimant sought advice from a solicitor who was visiting his mother about another matter. The claimant gave evidence that he was advised by his solicitor that time limits applied for tribunal claims but the claimant was not aware what these were. The claimant did not seek any advice prior to this.
11. The claimant presented his claim to the office of the industrial tribunals on 14 December 2012.
THE LAW
Redundancy Pay
12. 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.
13. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.
Notice Pay
14. 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.
15. Hence, for the time limit to be extended for a breach of contract claim for failure to give adequate notice, 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.
Applying the Law to Facts Found
16. On consideration of all the evidence before it the tribunal is satisfied on a balance of probabilities of the following:-
Redundancy Pay
17. 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 building work having diminished. The claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows:-
4 years x 0.5 x £410.00
5 years x 1 x £410.00 = £2870
Notice Pay
18. The claimant’s breach of contract claim for the respondent’s failure to give him notice should have been presented to the tribunal at the latest by 1 November 2012, it was not however received until 14 December 2012, some six weeks after the expiry of the three month time limit beginning with the effective date of termination.
19. 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 evidence he was aware from prior to the effective date of termination of his potential entitlement to a redundancy payment, that after the effective date of termination he approached the respondent for monies owing to him but was not aware of applicable time limits for the presentation of his complaints to tribunal and did not seek any advice until late November 2012. Ignorance of ones rights and time limits for their enforcement are rarely acceptable reasons for delay. In this case, particularly in light of the claimant’s awareness of his entitlement to a redundancy payment the tribunal considers that he ought to have investigated matters further and sought information and advice on his rights and their enforcement, the claimant chose not however to seek any advice until late November. 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 for notice pay to the tribunal within the applicable three month time limit and the tribunal accordingly does not have jurisdiction to entertain the claimant’s notice pay complaint.
CONCLUSION
20. The decision of the tribunal is that the claimant is entitled to a statutory redundancy payment of £2,870.00. 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. The claimant’s holiday pay complaint is dismissed following its withdrawal.
21. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 February 2013, Belfast.
Date decision recorded in register and issued to parties: