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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McTaggart v The personal Representative of... [2013] NIIT 00893_12IT (10 January 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/893_12IT.html
Cite as: [2013] NIIT 00893_12IT, [2013] NIIT 893_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 893/12
CLAIMANT: Sean McTaggart
RESPONDENT: The Personal Representative of Eamon Hassan (Deceased) T/A EC Hassan
DECISION
The claimant was dismissed from his employment and is entitled to a redundancy payment and payment in lieu of notice from the respondent, the respondent shall pay the claimant £8,100.00. At commencement of these proceedings the respondent was in breach of the employer’s duty to provide the claimant with a statement of employment particulars however the tribunal considers that it would be unjust or inequitable to make an award under Article 27 of the Employment (Northern Ireland) Order 2003 in the circumstances of this case.
Constitution of Tribunal:
Chairman (Sitting alone): Ms M Bell
Appearances:
The claimant was represented by Mr Sean Mullen, Barrister-at-Law, instructed by Campbell & Co Solicitors.
The respondent was represented by Mr Richard Sheils, Barrister-at-Law, instructed by Mallon McCormick Solicitors.
1. The claimant in his claim sought a redundancy payment and payment in lieu of notice following being made redundant on 2 March 2012 having been employed by Mr Eamon Hassan under an unwritten contract of employment as a full time skilled labourer until Mr Hassan was killed in an accident on 31 December 2011. At hearing an award was sought under Article 27 of the 2003 Order for the respondent’s failure to provide the claimant with a written statement of employment particulars.
2. In its response the respondent resisted the claimant’s claim on the basis that the claimant left the work yard on 7 March 2012 and never returned, was never made redundant and there was plenty of work for the claimant to do had he so wished it. At hearing an award under Article 27 of the 2003 order was resisted based on there being exceptional circumstances which would make an award unjust or inequitable.
ISSUES
3. The issues before the tribunal were:-
- Was the claimant dismissed? If so:-
- Is the claimant entitled to a redundancy payment?
- Is the claimant entitled to pay in lieu of notice?
- Should an award be made in view of the provisions of Article 27 of the 2003 Order applicable where the employer was in breach of his duty to the employee to provide a statement of particulars of employment under Article 33(1) of the Employment Rights Order when the proceedings were begun?
EVIDENCE
4. The tribunal considered the claim, response, documentation provided by the claimant and heard oral evidence from the claimant and from Mr Declan McTeague, a former employee of the respondent.
FINDINGS OF FACT
5. The claimant who was born on 5 October 1955, commenced employment with Mr Eamon Hassan as a skilled labourer on 20 October 2001. The claimant was paid £340.00 gross per month, being £300.00 net and had a company car.
6. From approximately June 2011 the respondent was undertaking the renovation and extension of a house in Killinchy, County Down. Whilst working on this job the respondent paid the claimant an additional £60.00 each week to cover his travel expenses.
7. The claimant considered Mr Hassan a friend. Throughout his period of employment with Mr Hassan prior to his death the claimant did not raise any complaint about the failure to provide him with a written statement of particulars of employment and the lack thereof did not give rise to any dispute.
8. Around
Christmas 2011 the respondent had approximately thirteen men made up of
sub-contractors and five employees working on the house renovation in
Killinchy. Work stopped on 23 December 2011 when they broke for two
weeks holidays and was due to recommence on 9 January 2012. On 31 December 2011
Mr Hassan was killed in an accident. At Mr Hassan’s funeral Mr McTeague,
a joiner and the respondent’s longest serving employee, told the claimant and
other workers that he would sort matters out and let them know when to come
back to work. Mr McTeague subsequently rang the claimant during the week
commencing 9 January 2012 and informed him that they would be
returning to work on 16 January 2012 and so the claimant and other
workers all returned to work on the Killinchy job. Mr McTeague, following
Mr Hassan’s death, effectively stood in and continued the running of the
business dealing with employees and subcontractors. The claimant, following Mr Hassan’s
death, dealt only with Mr McTeague and did not have any contact with Mrs Ann Hassan,
widow and personal representative of Mr Hassan deceased.
9. The Killinchy job was due to complete by the end of April 2012 and as the work neared completion and jobs were finished off subcontractors were laid off, firstly the joiners, then the plasterers, eventually just leaving the respondent’s five employees. Two of the respondent’s employee’s then left to go to other work, leaving only the claimant, Mr Paul McMullan and Mr McTeague.
10. The claimant was aware of three other potential jobs that Mr Hassan had lined up before his death, a job in County Down which, as the Killinchy job was coming to an end, Mr McTeague informed him that the owner of that job had asked Mr McTeague go back to it and finish it himself, a job they had been involved in on and off over the years on the Newtownards peninsula, which Mr McTeague informed the claimant in mid to late February 2012 that they would not be going back to and a job closer to home which the claimant understood another contractor had since started on.
11. The claimant gave evidence that accordingly he and Mr McMullan approached Mr McTeague on Thursday, 1 March 2012 and asked if there was anything for them the next Monday and where they stood but were told by Mr McTeague that he could not see anything for them. Whereas Mr McTeague denied that any approach was made to him or that a conversation took place and gave evidence that the claimant came to no longer work for the respondent as when they were going home one day in the van the claimant said, ‘that’s me on Friday’, he asked the claimant if he had other work and the claimant said he was happy to take a month off as the extra travel to County Down was taking a toll on him, and that there had been no prior discussion with the claimant about his job going forward. On balance the tribunal is persuaded that the claimant’s account is correct.
12. On Friday, 2 March 2012 a change was requested to the kitchen on the Killinchy job and so Mr McTeague asked the claimant to return to work for two days the following week to attend to this, which the claimant did, on 6 and 7 March 2012.
13. On the afternoon of 7 March 2012 the claimant went back to the respondent’s work yard, Mr McTeague asked the claimant if he had anything to get out of the car, the claimant removed his things and the company car was taken away and parked. Mr McTeague paid the claimant for the two days worked and the claimant’s wife collected him at the end of the day. Mr McTeague did not ask the claimant to return to do any other work and despite giving evidence that there were a lot of jobs on ‘the sheet’ that clients were happy for them to do and to keep going, did not at any stage show the claimant the job sheet and said of the claimant, ‘I wasn’t pushing the man as I thought he wasn’t fit for it.’
14. The following week the claimant went to sign on the dole and spoke to Mr McTeague on the telephone afterwards about having done so, as there was a potential issue about him not having a p45 from his employer. Mr McTeague and the claimant kept in touch with each other during April and May 2012 but contact stopped after the claimant presented his claim.
15. Mr McMullan last worked for the respondent in or around the end of March 2012.
16. No new employees were advertised for or recruited by the respondent in April 2012.
17. The respondent’s business, despite Mr McTeague evidence that there was available work but insufficient workers to do it, closed on 30 April 2012 and an auction of equipment took place in June 2012.
18. The claimant presented his claim to the tribunal on 16 May 2012.
19. Following presentation of his claim the claimant was sent an invoice for joinery work that Mr Hassan had carried out on the claimant’s home five years previously which he gave evidence had been paid for in full at the time, the claimant also gave evidence that there had been a letter sent initially stating that he had not had employment with the respondent.
THE LAW
20. 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 is dismissed as set out at Article 171 include where the contract under which he is employed by the employer is terminated by the employer (whether with or without notice). An employee who is dismissed shall be taken to be dismissed by reason of redundancy under Article 174 in circumstances which include if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind, or 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. Article 197 sets out how the amount of the redundancy payment shall be calculated.
21. Article 118 of the 1996 Order provides an employee the right to minimum notice from his employer to terminate the contract of employment of not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years.
22. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.
23. Article 33 of the 1996 Order provides that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment as provided therein. Under Article 27 of The Employment (Northern Ireland) Order 2003 in proceedings before an industrial tribunal in respect of specified jurisdictions which include redundancy payments, if the tribunal makes an award to the employee in respect of the claim, and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33 of the 1996 Order the tribunal shall increase the award by the minimum amount equal to two week’s pay to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount equal to four week’s pay instead. The tribunal’s duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.
APPLYING THE LAW TO FACTS FOUND
24. Where the fact of dismissal is disputed it is for the employee to satisfy the tribunal on this point. Mr McTeague disputed having discussed with the claimant at any stage his employment ‘going forward’ and in particular that he was approached by the claimant in the company of Mr McMullan to ask what the position was. The claimant’s failure to bring Mr McMullan as a witness to corroborate his version of events was put to the claimant, the claimant explained he thought it unfair to put Mr McMullan in the position of having to take sides. There appears to be considerable bad feeling generated between parties since the presentation of the claimant’s claim. Mr McTeague’s recollected conversation with the claimant resigning by saying ‘that’s me on Friday..’ does not sit entirely at odds with the claimant’s version of his employment having come to an end due to no more work being available for him. Mr McTeague referred to there being plenty of other work but confirmed that he did not show the job sheet to the claimant nor asked the claimant about doing other work despite apparently there being too much work for one man. Despite the alleged available work, the last work done by the respondent’s business was in or around 30 April 2012, after which it closed and an auction of equipment followed. In considering the question of fact as to who terminated the claimant’s contract the tribunal found the claimant credible in his evidence and on balance prefers the evidence of the claimant. The tribunal is persuaded that the claimant’s contract of employment was in the circumstances terminated by the respondent in circumstances mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind had ceased or diminished or were expected to cease or diminish. Accordingly the claimant is entitled to a statutory redundancy payment under Article 170 and calculated in accordance with Article 176 of the 1996 Order of £5,100.00.
25. The requirement to give statutory minimum notice is an implied term in the contract of employment, the claimant did not receive notice to terminate his contract of employment and sustained a loss of 10 weeks net pay, the respondent shall pay the claimant £3,000 in respect thereof.
26. The tribunal is persuaded that in light of the claimant having been personally employed by Mr Hassan, his intervening death prior to the commencement of these proceedings, the claimant’s lack of dealings with Mrs Hassan during his employment and the claimant’s redundancy claim appearing to arise as a consequence of Mr Hassan’s death, that exceptional circumstances apply such that it would be unjust or inequitable to make an award under Article 27 of the 2003 Order in this case as a result of the breach of the employer’s duty to provide a written statement of particulars of employment when the proceedings were begun.
CONCLUSION
27. The claimant was dismissed from his employment and is entitled to a redundancy payment and payment in lieu of notice from the respondent, the respondent shall pay the claimant £8,100.00. At commencement of these proceedings the respondent was in breach of the employer’s duty to provide the claimant with a statement of employment particulars however the tribunal considers that it would be unjust or inequitable to make an award under Article 27 of the Employment (Northern Ireland) Order 2003.
28. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 5 December 2012, Belfast.
Date decision recorded in register and issued to parties: