15
Kinney v Complete Homecare Ltd (Breach of Contract/Redundancy Pay/Holiday Pay/Payment in lieu of notice) [2004] NIIT 3966_03 (3 February 2004)
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THE INDUSTRIAL TRIBUNALS
CASE REF: 3966/03
APPLICANT: Arthur Kinney
RESPONDENT: Complete Homecare Limited
DECISION
The unanimous decision of the tribunal is that the applicant was dismissed by reason of redundancy. Further the applicant's dismissal without notice was in breach of his contract of employment. The respondent is therefore ordered to pay to the applicant the sum of £2482.04.
Appearances:
The applicant appeared in person.
There was no appearance either by or on behalf of the respondent.
SUMMARY REASONS:
The correct name of the parties is as detailed above and the title of the proceedings is amended accordingly.
- The originating application of the applicant alleged that the applicant was dismissed without notice as a result of redundancy and was owed monies for holiday pay, pay in lieu of notice and in respect of the redundancy. The respondent had failed to enter a Notice of Appearance or attend at the hearing. The applicant had lodged an application to the Redundancy Payments Branch, which had been turned down. The tribunal in reaching its decision considered the originating application, the oral evidence of the applicant and documentation furnished to the tribunal by the applicant.
- From the evidence presented the tribunal made the following findings of fact:
- The respondent employed the applicant (DOB 6 September 1950) from 1 September 1998 until 28 May 2003 as a plasterer. There was no written contract of employment or statement of terms and conditions of employment. At the time of the applicant's dismissal his weekly rate of net pay was £250.51 and the weekly gross rate of pay was £320.
- On 29 May 2003 the respondent informed all the employees including the applicant that their employment was terminated without notice as the business was ceasing to trade. Normally employees of the company received due notice of the termination of their employment. The applicant received in his final pay packet his week's wages and a payment of 200 in respect of holiday pay.
- The applicant's annual holiday entitlement with the respondent was 2 weeks over the "July fortnight", 2 days at Halloween, 2 days at Christmas, 1 week at Easter and Public Holidays. The holiday year rant from 1 April to 31 March. In the year 2003/2004 the applicant had taken 6 annual and 1 statutory days. The applicant's claim is that he is entitle to paid annual leave in accordance with the Working Time Regulations (NI) 1998.
- The material provisions on entitle to annual leave and compensation related to entitlement to leave are found at Regulations 13 and 14 of the Working Time Regulations (NI) 1998. Accordingly at the date of termination of employment the applicant had received paid holiday leave, which exceeded the leave entitlement, accrued under the Regulations. The tribunal concluded that the respondent is not required to make any further payment to the applicant in respect of annual leave. Accordingly that element of the applicant's complaint is dismissed.
- The tribunal concluded that the applicant's dismissal satisfied the requirements of Article 174(1)(a) of the Employment Rights (Northern Ireland) Order 1996. The applicant also satisfied the provisions of Article 199(1)(c) of the Employment Rights (Northern Ireland) Order 1996. The relevant date for the purpose of redundancy payment is 25 June 2005. Accordingly under Article 197 of the Employment Rights (Northern Ireland) Order 1996 the applicant is entitled to £1480.
- The respondent is also ordered to pay to the applicant an additional 4 weeks net pay amounting to 31002.04 in respect of the respondent's breach of contract in terminating the applicant's employment without notice.
- The applicant made no claim in respect of Jobseeker's Allowance or Income Support and accordingly the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply.
- This decision is a relevant decision under the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: 3 February 2004, Belfast
Date decision recorded in register and issued to parties:
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