Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/342_13IT.html
Cite as: [2013] NIIT 342_13IT, [2013] NIIT 00342_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 342/13

CLAIMANT: Fred McIlwaine

RESPONDENT: Stewart Worthington, t/a S W Contracts

DECISION

(A) The claimant’s holiday pay claim is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £2,144.00 in respect of holiday pay.

(B) The claimant’s claim for notice pay is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £2,432.28 in respect of notice pay.

(C) The claimant’s redundancy pay claim against the respondent is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £4,522.63 in respect of redundancy pay.

(D) The claimant’s claim for a guarantee payment is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £117.50 in respect of a guarantee payment.

Constitution of Tribunal:

Chairman (Sitting alone): Miss E M McCaffrey

Appearances:

The claimant was self-represented.

The respondent was debarred from participating in the hearing because the respondent did not present a response within the relevant time-limit.

REASONS

1. There was some confusion initially in relation to the time-limits within which this claim had to be brought accordingly. I advised the claimant that I would give a written decision in relation to this matter.

2. The claimant was employed by the respondent as a painter from 23 August 2011 until the respondent ceased trading on 28 November 2012. I make this finding as a finding of fact. The claimant’s claim form indicated that his employment ended on 19 August 2011 when he was laid off. He received one guarantee payment from his employer on 26 August 2011 and although he was due to receive further guaranteed payments every 13 weeks he did not receive any further payment. He had no further contact with his employer. He wrote to Mr Worthington on 16 May 2012 asking for his guaranteed payments, his holiday pay and for redundancy payment. He received no response whatsoever from his employer. He had received a letter from his employer prior to being laid off on 19 August and indicating that “whenever the workload picks up we will contact you in writing to notify you of a date to restart work”. No such contact was forthcoming from the respondent. The claimant subsequently lodged a claim seeking his redundancy payment and seeking payment of his holiday pay and guaranteed payments from the respondent. At that stage he believed that the respondent had “declared himself bankrupt” but in fact there was no evidence that this had occurred.

3. At the hearing the claimant produced a letter from the respondent addressed to the claimant dated 28 November 2012. This letter reads as follows:-

“Dear Fred,

As you are probably aware our workload has diminished over the past few months to the point where the company cannot continue to trade and will soon be made insolvent. We have therefore no alternative but to stop trading and to terminate your employment. Please accept this letter as notice of termination of employment with effect from Friday 9^th November 2012.

We do not have any funds with which to make redundancy payments but we can confirm that you were employed by the company from 8^th August 2000 until 19^th August 2011. This service would have entitled you to 12 weeks redundancy pay at your weekly rate of £335.01. Until the company is legally declared insolvent we cannot provide you with forms to claim this redundancy but in the meantime you may wish to contact the Labour Relations Agency… or your local Citizens Advice Bureau to discuss your options.

Your P45 and reference is enclosed.

Finally we would like to thank you for your service and if we can be of any further assistance please do not hesitate to contact us.

Yours sincerely

S Worthington”

4. The claimant’s evidence was that he had approached the respondent for a letter in relation to the ending of his employment and he had finally received the letter dated 25 November 2012 together with his P45 on 3 April 2013. The P45 indicates that the claimant’s leaving date was 19 August 2011. Clearly the letter is contradictory and it differs from the claimant’s evidence. The tribunal office had also received a letter dated 26 March 2013 from Springmount Financial on behalf of the respondent in which they stated, “we act for the above which ceased trading in November 2012 and has now vacated the premises as 34 Flush Park, Belfast”. Having considered this matter, the claimant’s evidence that he had not been dismissed from his employment but had simply been laid off, the contents of the respondent’s letter and the accountant’s letter, I find that the claimant’s employment terminated on 28 November 2012 when the respondent ceased trading. Accordingly, given that the claimant’s claim form was received at the Office of the Industrial Tribunals on 11 February 2013, I find that his claims were lodged in time.

5. The claimant advised that he was paid £335.01 per week gross, £273.69 net and this was confirmed by payslips. The claimant confirmed that he was aged 44 at the date his employment ended and that he had 12 complete years of service.

6. On this basis I make the following awards in favour of the claimant:-

(1)	Holiday Pay
	The claimant’s annual holiday entitlement was 29 days which he had been unable to take. Because he had been laid off for more than a year, he had accrued the right to a further three days holidays over the Halloween period in 2012. He is therefore entitled to 32 days holidays at £67.00 per day =	£2,144.00

(2)	Notice Pay
	The claimant had 12 years service. While laid off he received a weekly social security benefit of £71.00 per week. I therefore direct that the respondent shall pay to the claimant notice pay as follows:- £273.69 - £71.00 = £202.69 per week x 12 =	£2,432.28

(3)	Redundancy Pay
	The claimant had 12 complete years of service and was aged 44 at the date of his dismissal. He had 9 years of service during which he was entitled to one week’s pay for each year of service and three years service during which he was entitled to 1½ weeks pay for each year of service by way of redundancy payment. I direct the respondent to pay to the claimant a redundancy payment as follows:- £335.01 x 13.5 =	£4,522.63

(4)	Guarantee Payment
	The claimant’s right to a guarantee payment is set out in Article 60 and following of the Employment Rights (Northern Ireland) Order 1996.

	Article 63 makes it clear that an employee is entitled to a guarantee payment every three months for a period of up to five days.

	The amount of the guaranteed payment is reviewed on an annual basis and at the time of the claimant’s dismissal it was £23.50 per day. Anyone wishing to claim a guarantee payment to which they are entitled must bring their claim within a three month time-limit beginning on the day when the payment became due. Accordingly, I find that the claimant can only bring such a claim in relation to the last guarantee payment to which he would have been entitled from the respondent.

	I therefore order the respondent to pay to the claimant a guarantee payment calculated as follows:- £23.50 x 5 =	£117.50

7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 8 April 2013, Belfast.

Date decision recorded in register and issued to parties:

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