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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCavigan v Department for Employment and ... [2013] NIIT 02892_11IT (08 February 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/2892_11IT.html
Cite as: [2013] NIIT 02892_11IT, [2013] NIIT 2892_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2981/11
CLAIMANT: Nuala McCavigan
RESPONDENT: Department for Employment and Learning
DECISION ON REVIEW HEARING
The tribunal’s decision to dismiss the claim is confirmed.
Constitution of Tribunal:
Chairman: Mr Travers
Appearances:
The claimant appeared in person and was not represented
The respondent was represented by Mr Cruikshanks, an executive officer employed by the respondent
REASONS
1. The claim originates from the claimant’s redundancy from her employment with Keith Hamilton t/a Keith Hamilton Building Supplies. The claimant contends that a five day working week rather than a three day working week should have been used as the basis of the respondent’s calculation of her entitlement following Mr Hamilton’s bankruptcy.
2. The claimant did not attend the original hearing. She has satisfied the tribunal that she did not have notice of that hearing and consequently her application for review has been considered.
3. At the conclusion of the review hearing the tribunal informed the parties that its earlier decision to dismiss the claim would be confirmed.
4. The claimant was employed by Keith Hamilton t/a Keith Hamilton Building Supplies from October 1995 to February 2011. Mr Hamilton was declared bankrupt on 3rd June 2011 and subsequently the respondent made payments to the claimant in respect of her claims for a redundancy payment, notice pay and holiday pay. The claimant disputes that the payments made to her by the respondent represent her full entitlement. The claimant contends that a five day working week rather than a three day working week should have been used as the basis of the respondent’s calculations.
5. The tribunal has considered all the information now available to it, including the claimant’s oral representations. The tribunal notes that during the later period of her employment with Mr Hamilton the claimant’s working hours were adjusted contrary to her wishes and ultimately she found herself working a three day rather than a five day week. It appears from the claimant’s email that she last worked a five day week sometime around March/April 2010, almost one year before her employment with Mr Hamilton came to an end. The claimant however did not resign and continued to work for Mr Hamilton under the shorter working hours until she was made redundant. The claimant told the tribunal that she didn’t voice an objection to her shorter working hours because she “thought that the place was going to close”.
6. The respondent calculated the claimant’s entitlement to payments on the basis of the average of her last 12 weeks pay, excluding as too low for the purposes of the calculation the one week where her pay was £76.71. The average weekly pay thus calculated was £254.60 and it was on this basis that the respondent made payments to the claimant. The method of calculation used by the respondent was in accordance with its statutory obligation.
7. In all the circumstances of the case the tribunal is satisfied that the respondent performed the calculations correctly and that the claimant has been paid her entire entitlement by the respondent. Consequently the decision to dismiss the claim is confirmed.
Chairman:
Date and place of hearing: 11th September 2012 sitting at Belfast
Date decision recorded in register and issued to parties: