Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 16690/18

 

 

CLAIMANT:              Ryan Hugh Gallery

 

RESPONDENT:      Eoin McCaughley trading as Avondale Fitted Furniture

 

 

DECISION

 

The decision of the tribunal is that the claimant is entitled to an award of £16,438.00 in respect of a redundancy payment, notice pay and unpaid wages.

 

 

CONSTITUTION OF TRIBUNAL:

 

Employment Judge (sitting alone):       Employment Judge Wimpress

 

 

APPEARANCES:

 

The claimant appeared in person and was not represented.

 

The respondent did not attend the hearing and was not represented.

 

 

TITLE OF PROCEEDINGS

 

1.         It is clear from the evidence presented by the claimant that the respondent was trading as Avondale Fitted Furniture.  The title of the proceedings is therefore amended to Eoin McCaughley trading as Avondale Fitted Furniture.  No prejudice accrues to Mr McCaughley as he is no longer operating at its business premises and the claim form was sent to his home address.

 

SOURCES OF EVIDENCE

 

2.         The tribunal heard oral evidence from the claimant and received a number of documents from him including bank statements, P60s and correspondence with HMRC.  No payslips were available as these were not provided by the respondent.

 

THE CLAIM AND THE RESPONSE

 

3.         The claimant brought claims for a redundancy payment, notice pay, holiday pay and arrears of pay following the termination of his employment with the respondent.  The respondent did not file a response and did not attend the hearing.  I am satisfied that the claim form was posted to the respondent.

 

 

 

THE ISSUES

 

4.         Whether the claims brought by the claimant for a redundancy payment, notice pay, holiday pay and arrears of pay have been made out.

 

THE FACTS

 

5.         The claimant’s date of birth is 7 February 1982 and at the date when he was made redundant he was aged 36.  The claimant commenced employment with the respondent as a joiner/cabinet maker on 1 September 1998 and continued to work for the respondent until 21 September 2018 and thus had 20 completed years of service.  The respondent business operated out of premises at 35B Derryall Road, Portadown.  The claimant worked a 40 hour week on a Monday to Friday basis with overtime at nights and at weekends when the business was doing well.  The claimant was paid £350.00 per week or £1,400.00 per month net.  The claimant’s daily rate of pay after tax was therefore £70.00.  As indicated above the respondent did not provide the claimant with payslips and the claimant was therefore unable to provide the tribunal with written evidence as to his gross pay.  However, having considered the claimant’s P60s for earlier years and correspondence from HMRC which indicates that the respondent operated a PAYE system it is possible to estimate gross pay and this works out at £422.00 per week.

 

6.         It is clear that the respondent business was in difficulties from May 2018 and according to the claimant he was last paid in May 2018.  The claimant's employment subsequently terminated when Mr McCaughley announced on Friday 21 September 2018 that he was closing down the business.  The claimant asked Mr McCaughley about redundancy pay and he replied that he hadn’t the money to pay it.

 

7.         The claimant gave evidence that he was allowed 25 days paid holiday per year with holidays being required to be taken when the business closed down for set periods during the course of year – two days at Easter, May Day, two weeks in July, two days at Halloween and two weeks at Christmas.  The claimant’s claim in respect of unpaid wages is confined to 3 months’ pay due and owing to him. 

 

THE LAW

 

8.         Redundancy is defined in Article 174 of the 1996 Order as follows:

 

“174    (1)  For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if a dismissal is wholly or mainly attributable to –

 

(a)       the fact that his employer has ceased or intends to cease –

 

(i)        to carry on the business for the purposes of which the employee was employed by him, or

 

(ii)       to carry on that business in the place where the employee was so employed, or

 

(b)       the fact that the requirements of that business -

 

(i)        for employees to carry out work of a particular kind, or

 

(ii)       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.”

 

9.         Article 197 makes provision for the calculation of a redundancy payment as   follows:

“197.   (1)  The amount of a redundancy payment shall be calculated by:-

(a)      determining the period, ending with the relevant date, during which the employee has been continuously employed,

(b)      reckoning backwards from the end of that period the number of years of employment falling within that period, and

(c)      allowing the appropriate amount for each of those years of employment.

(2)  In paragraph (1)(c) “the appropriate amount” means:-

(a)       one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one,

(b)     one week's pay for a year of employment (not within
sub-paragraph (a)) in which he was not below the age of twenty-two, and

(c)       half a week's pay for each year of employment not within sub-paragraph (a) or (b).”

10.      Articles 198 and 199 also contain important provisions in respect of                 redundancy.

“198.   (1)  Any question arising under this Part as to:-

(a)       the right of an employee to a redundancy payment, or

(b)       the amount of a redundancy payment, shall be referred to and determined by an industrial tribunal.

(2)  For the purposes of any such reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.

199.    (1)  An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date:-

(a)       the payment has been agreed and paid,

(b)       the employee has made a claim for the payment by notice in writing given to the employer,

(c)       a question as to the employee's right to, or the amount of, the payment has been referred to an industrial tribunal, or

(d)       a complaint relating to his dismissal has been presented by the employee under Article 145.

(2)  An employee is not deprived of his right to a redundancy payment by paragraph (1) if, during the period of six months immediately following the period mentioned in that paragraph, the employee:-

(a)       makes a claim for the payment by notice in writing given to the employer,

(b)       refers to an industrial tribunal a question as to his right to, or the amount of, the payment, or

(c)       presents a complaint relating to his dismissal under Article 145, and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

(3)  In determining under paragraph (2) whether it is just and equitable that an employee should receive a redundancy payment an industrial tribunal shall have regard to:-

(a)       the reason shown by the employee for his failure to take any such step as is referred to in paragraph (2) within the period mentioned in paragraph (1), and

(b)       all the other relevant circumstances.”

11.      Notice Pay

 

Article 118 of the Employment Rights (Northern Ireland) Order 1995 makes provision in relation to notice periods as follows:-

 

"118.   (1)  The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more -

 

(a)       is not less than one week's notice if his period of continuous employment is less than two years,

 

(b)       is 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, and

 

(c)       is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.

 

(2)  The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week."

 

 12.      Unauthorised Deduction from Wages

 

Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides as follows:

 

"An employer shall not make a deduction from wages of a worker employed by him unless - (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction".

 

Article 45(3) of the 1996 Order provides as follows:

 

"Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion".

 

13.       Breach of Contract

 

The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 confers jurisdiction on industrial tribunals to hear claims for breach of contract and Article 3(c) provides as follows: -

 

"Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for sum due in respect of personal injuries) if - ...

 

(c)       the claim arises or is outstanding on the termination of the employee's employment."

 

 14.     Holiday Pay

 

The Working Time Regulations (Northern Ireland) 2016 ("the 2016 Regulations") provide under Regulations 15 and 16 for a worker to have minimum leave in a year of 5.6 weeks or 28 days.  Under Regulation 17 of the 2016 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.

 

CONCLUSIONS

 

15.       I am satisfied that the claimant's claims for a redundancy payment, arrears of pay and notice pay are made out.

 

(i)            Redundancy Payment

The claim in respect of redundancy pay has been brought within the time limit set out in Article 199(1) of the 1996 Order.  Using the statutory formula (half a week’s pay for each full year under the age of 22 and 1 week’s pay for each full year when he was 22 or older, but under 41) the claimant is entitled to17 weeks redundancy pay.

(ii)          Notice Pay

 

In accordance with the Article 118 formula the claimant is entitled to 12 weeks’ notice pay.

 

(iii)         Arrears of Pay

 

I am satisfied that the claimant is entitled to 3 months arrears of pay either on the basis of breach of contract or unauthorised deduction from wages.

 

(iv)         Holiday Pay

 

The amount claimed in respect of holiday pay was not specified in the claim form or quantified by the claimant in his evidence to the tribunal.  It is also apparent from the claimant’s evidence that the respondent’s holiday arrangements did not comply with the 2016 Regulations under which the claimant should have received 28 days annual holiday.  In view of the manner in which holidays were arranged in the respondent’s business it is unfruitful to attempt to apply the statutory formula to the claimant’s situation.  There is clearly a degree of overlap between the claim in respect of unpaid wages and holiday pay in terms of timing.  I am not satisfied that the claimant is due payment in respect of any untaken leave.  In any event it seems to me that the award that I have made in respect of arrears of pay would be duplicated if I made an award of holiday pay as this would inevitably include the two week July holiday.  In these circumstances I am not satisfied that it would be appropriate to make a separate award in respect of holiday pay.

           

AWARD

 

16.       Redundancy Pay     

 

17 x £422.00             =          £7,174.00

 

Notice Pay                

 

12 x £422.00             =          £5,064.00

 

Arrears of Pay           

 

3 x £1,400.00            =          £4,200.00                

 

            Total                                      £16,438.00

 

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

 

 

 

 

Employment Judge:

 

Date and place of hearing:  30 January 2019, Belfast.

 

Date decision recorded in register and issued to parties: