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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McShane v AJC Security Systems Ltd (in l... Tony Collins Department for Employment and ... [2014] NIIT 329_14IT (04 August 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/329_14IT.html
Cite as: [2014] NIIT 329_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 329/14
CLAIMANT: Joanne Mary McShane
RESPONDENTS: 1. AJC Security Systems Ltd (in liquidation)
2. Tony Collins
3. Department for Employment and Learning
DECISION
The unanimous decision of the tribunal is as follows:
(A) The claimant’s claim against AJC Security Systems Ltd (“the Company”) are not well-founded. Accordingly, those claims are dismissed.
(B) The claimant’s claim against Mr Tony Collins (“Mr Collins”) in respect of redundancy pay is well-founded and it is declared that Mr Collins is liable to make a redundancy payment of £1,350 to the claimant.
(C) The claimant’s unfair dismissal claim against Mr Collins is well-founded and it is ordered that Mr Collins shall pay to the claimant the sum of £3,132 in respect of that unfair dismissal.
(D) The claimant’s appeals, against decisions made by the respondent Department (in its role as the statutory guarantor in respect of certain debts), are dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Buggy
Members: Ms D Adams
Ms T Madden
Appearances:
The claimant was self-represented.
The Company was debarred from participating in the proceedings, because it had not presented a response.
Mr Collins was not present or represented.
The respondent Department was represented by Mr Peter Curran.
REASONS
1. In these proceedings:
(1) The claimant makes claims for redundancy pay and for unfair dismissal pay, either against the Company or against Mr Collins.
(2) The claimant made an application to the Department, in the Department’s role as the statutory guarantor in respect of certain employment debts. That application was unsuccessful. In these proceedings, the claimant also appeals against the Department’s decisions in respect of her application.
2. Accordingly, in essence, these proceedings incorporate two separate causes of action:
(1) The claimant makes claims against the employer (whoever that is).
(2) The claimant appeals against the Department’s decisions.
3. The claimant told us that she was now of the view that there had been a relevant transfer (within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations (“TUPER”), on 28 June 2013, of the entity to which the claimant was assigned at the time of that relevant transfer.
4. The implications of that contention, on the part of the claimant, are as follows. First, if there has been a relevant transfer (within the meaning of TUPER), of an entity to which the claimant was assigned at the time of the transfer, the Department must have been correct in refusing the claimant’s applications. (Mr Collins is not formally insolvent, although the Company is). Secondly, if there was a relevant transfer of the entity to which the claimant was assigned at the time of the transfer, then any liability which the Company would otherwise have had in relation to the claimant must have transferred to Mr Collins.
5. Mr Collins was not present at this hearing. We consider that there was no good reason for his absence. (There was no medical evidence on the specific questions of his fitness to attend, or to participate in, this hearing).
6. We decided to go ahead with the main hearing, in the absence of Mr Collins. We took account of the information about the case which had been made available to us by the parties.
7. We were satisfied that on 28 June 2013, there was a relevant transfer of the entity to which the claimant was then assigned. Accordingly, as a result of that transfer, any liabilities which the Company had had in relation to the claimant thereby were transferred to Mr Collins. Accordingly, two consequences follow:
(1) Any claims by the claimant against the Company must be dismissed:
(2) The claimant’s appeal, against the Department’s refusals of her applications, must be dismissed. (Mr Collins is not formally insolvent at present; therefore, the Department currently has no power to make any payment to the claimant in respect of any employment debt other than redundancy pay, and, in practice, it was not under an obligation to make a payment to the claimant in respect of redundancy pay prior to the issuing of this Decision).
8. In arriving at our conclusions on the TUPER issues, we took account, in particular, of the following matters. First, the kind of business being carried out by the Company, before the putative relevant transfer, and the kind of business being carried out by Mr Collins, afterwards, were substantially the same. Secondly, there was no gap between the cessation of business by the Company and the commencement of the “new” business by Mr Collins. Thirdly, the “old” business and the “new” business traded from the same office. Fourthly, many of the staff of the Company immediately became staff members of Mr Collins’ “new” business.
Redundancy pay
9. Mr Collins does not deny that the claimant was dismissed on 28 June 2013. A dismissal is presumed to be a dismissal on the ground of redundancy until the contrary is proven. The contrary has not been shown, much less proven, in this case. Therefore, there is adequate proof that the claimant was dismissed because of redundancy.
10. The claimant is entitled to a redundancy payment of £1,350. In calculating the amount of that payment, we have taken account of the claimant’s age, her length of service, and the fact that, at the date of dismissal, her gross weekly salary was a sum in excess of the then statutory weekly gross pay maximum of £450.
Unfair dismissal
11. Article 145(2) of ERO sets out the time-limits in respect of a claim for unfair dismissal.
12. There is a primary time-limit of three months, beginning on or about the effective date of termination of employment. In this case, the EDT was 28 June 2013. Therefore, in this case, the primary limitation period expired on or about 28 September 2013. The claimant did not present her claim within the primary limitation period.
13. On the basis of her sworn testimony, we are satisfied that the reason for her delay was that she did not know that she might be able to make an unfair dismissal claim against Mr Collins under TUPER. The question for us was as follows: was that reasonable ignorance, which was such as to render it not reasonably practicable for the claimant to put in her claim within the primary time-limit?
14. On balance, we are satisfied that the relevant ignorance was indeed reasonable ignorance, and that it did indeed make it not reasonably practicable for the claimant to present her claim within the primary time-limit. In arriving at that conclusion, we have taken account of the fact that the law on transfer of undertakings is complex, and that it is still often misunderstood.
15. Because we are satisfied that it was not reasonably practicable to present the claim within the primary time-limit, we have power to allow the claim of unfair dismissal to be presented, despite the fact that it was not presented within the primary time-limit. The next issue is for us to decide whether nor not the claim has been presented within a further “reasonable” period. We are so satisfied, in light in particular of the following considerations. First, the claim form was lodged within eight months of the date of dismissal. Secondly, the reason for the delay was the claimant’s lack of knowledge about TUPE, a lack of knowledge that persisted throughout most of the period of delay, even after the expiry of the primary limitation period. Thirdly, we are satisfied that Mr Collins has been in no way prejudiced by the lateness of the bringing of the claim (as distinct from being prejudiced by the bringing of the claim at all).
16. The requirements of the statutory dismissal procedure, as set out in regulations which have been made under Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“ERO”), were not complied with. That makes the claimant’s dismissal an unfair dismissal. (See Article 130A(1) of ERO).
17. Because the claimant has been awarded a redundancy payment by us, she is not entitled to the basic award element of unfair dismissal compensation.
18. In correspondence with the Office of the Industrial Tribunals, Mr Collins asserted that he offered employment to the claimant in January 2014. There is a difference of opinion, between the claimant and Mr Collins, on the question of whether or not she was indeed offered a suitable job, in January 2014. We are sure that the claimant’s view of events, in respect of that matter, is correct. She allowed us to listen to the voicemail from Mr Collins, when he made the relevant offer. It is clear that he was only offering one or two mornings of work, for a couple of hours on each of those days.
19. She accepts that the compensatory award element of her unfair dismissal award should be limited to eight weeks net pay. That amounts to £2,832. (Her net weekly pay, at the relevant time, was £354). To that, the sum of £300 is added (for loss of statutory rights).
Summary
20. Accordingly, in summary, the position is as follows:
(1) The claimant is entitled to a redundancy payment of £1,350 from Mr Collins.
(2) The claimant is entitled to an unfair dismissal award of £3,132.
Recoupment
21. The Recoupment Regulations apply in respect of the unfair dismissal award. The prescribed period was the period from 1 May 2014 until 30 June 2014. The prescribed amount was £2,832. The dismissal award exceeds the prescribed amount by £300.
Interest
22. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 1 July 2014, Belfast.
Date decision recorded in register and issued to parties: