Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    90/14  

 

 

CLAIMANT:                          Allana-Lea Gilpin

 

 

RESPONDENTS:               1.    Department for Employment and Learning

                                                         (Redundancy Payments Service)

 

                                                2.    The House of Brindle Ltd (In liquidation)

 

 

 

 

DECISION

 

The decision of the tribunal is that the claimant’s claim is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge McCaffrey

 

 

Appearances:

 

The claimant was represented by Mr D Calvert.

 

The first-named respondent was represented by Mr N Cruikshanks of the Department of Employment and Learning.

 

The second-named respondent did not appear and was not represented.

 

 

 

1.0       THE ISSUES

 

1.1       This claim had originally been lodged seeking by way of an appeal against the decision of the Redundancy Payments Service of the first-named respondent not to pay the claimant certain amounts which she claimed she was entitled to following the liquidation of her employer, the second-named respondent.  At the date of the hearing, the only outstanding issue was whether the claimant was entitled to arrears of pay which she said she was due for the period from 11 July to 20 August 2011.

 

1.2       On the RP1 form which the claimant had lodged with the first-named respondent on 22 December 2012, she indicated that she had two breaks in her employment, one from 9 July 2011 to 2 October 2011 due to a temporary shortage of work, and the other from 9 April 2012 to 13 September 2012 due to temporary shortage of work.  It is the first of these periods which is relevant for the purposes of this claim.

 

1.3       Later in the form in answer to the question “Are you owed wages/salary?”, the claimant claimed arrears of pay from 11 July 2011 to 20 August 2011.  This was a period of 30 days for which the claimant claimed.  The claim form lodged by the claimant, received in the Office of the Industrial Tribunals on 23 December 2013, refers to various matters but does not address the discrepancy in the dates set out in the RP1 form.  In the response lodged by the first-named respondent, the respondent notes that in the RP1 form the claimant has claimed that she has owed arrears of pay for a period during which she states she was laid off due to a temporary shortage of work.  The Department therefore refused to pay the amount claimed by the claimant on this basis and also on the basis that information received by and from the liquidator confirmed that all wages were paid up to the date of termination of the business.  The second-named respondent was subject to a compulsory liquidation order on 13 September 2012.  Mr Calvert, who represented the claimant and is her father, was a director of the second-named respondent, which was a family firm.

 

1.4       At the initial hearing on 21 February 2014, the claimant did not attend and the matter was postponed to allow her to attend to give evidence on her own behalf.  At the second hearing, it was put to the claimant that the dates on the RP1 form were inconsistent.  She said that it was an error and she apologised for this.  It was her assertion that the shop closed to the public on 9 July 2011 but she remained working for a number of weeks to dismantle the displays and then to reconstruct displays for Christmas merchandise (in August).  She indicated that she continued this work until 20 August.  She also “signed on” to claim Jobseeker's Allowance on Monday, 15 August, and indicated that she had never claimed Jobseeker's Allowance before, that she was unclear as to whether she was entitled to Jobseeker's Allowance or not when laid off and she was seeking advice from the JSA authorities.  Her claim form for Jobseeker's Allowance was produced to me and I note that the form indicates “TAM:08/08/2011”.  This was put to the claimant and she indicated that she had not known what “TAM” stood for until the respondent had written to her in March 2014 to indicate that her claim had been “Taken as Made” from 8 August 2011.  Accordingly, the first-named respondent refused her claim for arrears of pay during a period in which she was receiving Jobseeker's Allowance.

 

1.5       The claimant indicated that she first received a payment of Jobseeker’s Allowance on 25 August 2011.  That payment was for £115.72 and she received subsequent payments of Jobseeker's Allowance until she resumed work after the temporary lay-off in October 2011.  When this was raised with the claimant in correspondence before the date of the hearing, she wrote back to the respondent acknowledging that her start-date for JSA consideration was 8 August 2011, the first three days were waiting days and she had then been paid thereafter.  Her letter goes on:-

 

                        “I fully understand and accept I am unable to claim wages in arrears for the period between 11 August to 20 August 2011.  My apologies for this error.  I hope my explanation now corrects the position.  When all of this is taken into account my claim for arrears would therefore be from week ending July 16^th to Wednesday 10^th August 2011 when recalculated.”

 

1.6       Earlier in the letter she indicated that she had called the Social Security Office to apply for Jobseeker's Allowance on 15 August 2011 as she knew her job would end temporarily on 20 August 2011.  At no point in that correspondence did the claimant clarify why her claim was made from 8 August 2011.

 

1.7       The only record produced to me in relation to the hours allegedly worked by the claimant in July and early August 2011 was a copy of a letter which the claimant said she had sent to the second respondent when she resumed work in October 2011.  This is a short statement of the hours which the claimant indicated she had worked during the weeks from 11 July until 20 August.  In her evidence to the tribunal the claimant said that she generally worked during those weeks from 10.00 am to 5.00 pm with a half hour lunch break, this means that on each day she worked approximately six and a half hours, but the hours she has claimed in her letter of 24 August 2011 do not accurately reflect this.  There is no other source of confirmation of these hours.  There was no record kept in the respondent’s wages book and no timesheets were produced.  Mr Calvert in his evidence indicated that it had been agreed that the claimant would be paid this amount at a later date, but he agreed that his brother, who was at work during the period of layoff was paid his wages for this period as he felt that it was important to honour his contract.

 

 

2.0       REASONS AND DECISION

 

2.1       This claim relates to a period when the second-named respondent’s premises were closed and staff had been placed on a temporary layoff.  During a temporary layoff staff would not be entitled to any payment, apart from the guarantee payment set out in legislation.  It was the claimant’s case that she had, exceptionally, come into work and carried out work at the request of the second-named respondent and that it was agreed that she would be paid for this amount at a later date.  It is also relevant to note that she is the daughter of David Calvert, a Director and one of the owners of the second-named respondent.

 

2.2       At the hearing on 21 March, the claimant apologised promptly for the misunderstanding which she said had occurred when the RP1 form had been completed.  She did not however give any explanation as to how this had occurred except that it was an error.  When she was asked about her claim form for Jobseeker's Allowance she was unable to give any explanation as to why her claim was marked “treat as made” on 8 August 2011.  When she was asked if she had any paperwork relating to the date her claim for Jobseeker's Allowance began she indicated that she would have to go back and look at it.   She also accepted she was not entitled to receive Jobseeker's Allowance if in work and that she had been employed until 20 August 2011.  I do not find the claimant to be a credible witness in relation to these matters.  She seemed to dismiss the substantial errors made in relation to the dates of her layoff and not to realise that there was any discrepancy in relation to the dates.  Furthermore, she could not clarify why the form completed for her Jobseeker's Allowance claim showed a “treat as made” date as 8 August 2011.  She seemed to think that the whole matter would be cured if she simply indicated that she was not any longer claiming arrears of pay from 10 August (after the three day waiting period) until 20 August.

 

2.3       The position was compounded by Mr Calvert’s evidence to the tribunal.  He indicated that he had spoken to the claimant close to the last week she had worked in August 2011, telling her that she would need to get things cleared up by 20 August and that she should consider if there were any other ways of getting money as she would be laid off temporarily.  He then said that the claimant took the day on 15 August to go to the Social Security Agency and “made arrangements regarding her money”.  His memory of the exact dates of the layoff was hazy, he was not able to give any clear explanation as to why his brother, Kenneth Calvert (who worked in the business for some time during the period of layoff) was paid while the claimant was not and he indicated that he had not paid any guaranteed payments to those who had been laid off as “we didn’t operate that”.

 

2.4       In his final submissions Mr Calvert said that he did not know what all the fuss was about as the problem was simply to do with errors on the forms.  As far as the discrepancy with dates on the Jobseeker's Allowance claim form was concerned, he indicated that it was due to his daughter’s inexperience of claiming because she had never claimed anything before in her life.  He went on to submit that the claimant should be paid arrears of wages, including the three waiting days after her Jobseeker's Allowance claim had been lodged, even though it had been clarified that no benefit was paid for the first three days of unemployment.

 

2.5       I do not accept the evidence given by the claimant and her father, Mr Calvert.  It is clear that not only is the paperwork contradictory, but so was their oral evidence to the tribunal.  I do not accept that the claimant was working as she says she was during the month from 9 July until 20 August 2011.  There are no independent records to show that she worked or that it was agreed she would be paid later.  It is also notable that the claimant was not paid these arrears of pay when she resumed work after lay-off in October 2011 and she does not seem to have raised the issue at all during the following year until she made her claim to the Redundancy Payments Service after the second respondent ceased trading.  It is clear that the claimant made an incorrect (and arguably fraudulent) claim for Jobseeker's Allowance from 8 August 2011.  She appeared not to know why this date appeared on the form, but it can only have appeared because staff at the Social Security Agency were informed that this was the date from which she was claiming Jobseeker's Allowance, and for no other credible reason.  Accordingly, I find that the first-named respondent, in the absence of any independent, convincing evidence that the claimant was indeed working during this period and was entitled to be paid arrears of wages, was perfectly entitled to withhold payment.  The Redundancy Payments Service has a responsibility to ensure that public money is not paid out erroneously.  I do not find the claimant’s evidence credible in this matter and accordingly her claim is dismissed.

 

 

 

 

 

 

 

Employment Judge:

 

Date and place of hearing:        21 March 2014, Belfast.

 

Date decision recorded in register and issued to parties: