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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAteer v Vetro-Seal (NI) Limited (Unfair Dismissal) [2004] NIIT 2449_03 (20 April 2004) URL: http://www.bailii.org/nie/cases/NIIT/2004/27.html |
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CASE REF: 2449/03
APPLICANT: Lee McAteer
RESPONDENT: Vetro-Seal (NI) Limited
The unanimous decision of the tribunal is that the applicant's claim against the respondent that he was unfairly dismissed or for a redundancy payment is dismissed.
Appearances:
The applicant was represented by his father.
The respondent was represented by Mr Murphy an employee of the respondent company.
1.1 The applicant was employed from October 2000 as a Glass Decorative Operative by the respondent company. From January 2003 he had been working on and off on a short-time basis due to a downturn in work. On 23 May the applicant was laid off because of further downturn of work.
1.2 On 12, 13 and 16 June 2002 Mr Darren Tate the Production Manager tried to make contact with the applicant by text message on the applicant's mobile telephone asking him to return to work as work was coming in. Finally contact was made on 17 June 2002. Mr Tate asked the applicant to return to work as soon as possible. On the next day 18 June 2002 Mary Blair another employee of the company in the accounts department met the applicant at Springhill Shopping Centre. She was doing the bank lodgement and spoke to the applicant and said that she would see him back in the morning. The applicant replied that he could not come back as he was involved in a training scheme. The applicant then said that he would give Darren Tate a call on his telephone. However no call was ever received from the applicant. The tribunal was impressed with the evidence of Mrs Blair who had a clear recollection of what was said in the Shopping Centre.
1.3 On 20 June the respondent received a letter dated 18 June from the applicant stating that on the advice of the Citizens Advice Bureau he was claiming statutory redundancy as he had been laid off "running into the fourth consecutive week".
1.4 The respondent company replied to that letter on 24 June stating that they were resisting the application for statutory redundancy as the applicant had been offered employment on 17 June 2002.
1.5 The statutory provisions concerning redundancy where there has been lay-off and short time is set out in Article 182 to 187 of the Employment Rights (Northern Ireland) Order 1996.
1.6 The tribunal are satisfied that the applicant was laid off for a certain period of time as defined in Article 182.
1.7 Under Article 182 it is stated that "an employee is eligible for a redundancy payment by reason of being laid off or kept on short-time if –
(a) he gives notice in writing to his employer indicating (in whatever terms) his intention to claim a redundancy payment in respect of lay-off or short-time (referred to in the Part as "notice of intention to claim"), and
(b) before the service of the notice he has been laid off or kept on short time in circumstances in which paragraph (2) applies.
(2) This paragraph applies if the employee has been laid off or kept on short-time:
(a) for four or more consecutive weeks of which the last before the service of the notice ended on, or not more than four weeks before, the date of service of the notice, or
(b) for a series of six or more weeks, (of which not more than three were consecutive) within a period of thirteen weeks, where the last week of the series before the service of the notice ended on, or nor more than four weeks before, the date of service of the notice.
1.8 The applicant wrote to the respondent on 18 June 2002 stating "I am hereby claiming statutory redundancy from yourselves as I have now been laid-off running into the fourth consecutive week". This letter was dated 18 June which was the day after he had been contacted and told that he could restart working. However this letter is not correct as the applicant was laid-off on 23 May and the four weeks would only expire on 20 June. It was held in Allison –v- Drew Simmons Engineering Limited [1985] ICR 488 that an employee's claim will be rejected if he has been laid-off less, even one day less than four weeks at the time he presents his claim. In this case the applicant was in fact writing to his employer two days before the four weeks had expired and as has already been mentioned had been offered a restart prior to his letter being received.
1.9 Under Article 185 of the Order it is stated "An employee is not entitled to a redundancy payment by reason of being laid off or kept on short-time unless he terminates his contract of employment by giving such period of notice as is required for the purposes of this Article before the end of the relevant period". The applicant did not give any such notice of resignation.
1.10 The applicant chose to bring his claim for redundancy payment under Article 183(2)(a). The tribunal did consider whether the applicant would be successful if he had brought his claim under Article 183(2)(b) but the evidence before the tribunal was that the applicant had been employed for more than 6 out of the previous 13 weeks prior to the letter of 18 May 2002. However even if he had been employed for less than 6 out of the 13 weeks he would still have the problem of not having given in his resignation under Article 185.
1.11 The tribunal therefore hold that the applicant is not entitled to a redundancy payment as his notice under Article 183(1) and (2) was given before the end of the fourth week lay off and also because the applicant had been notified that work was available for him. Furthermore, the applicant did not terminate his Contract of Employment by giving the period of notice of one week required under Article 185.
1.12 The tribunal considered the applicant's claim that he was unfairly dismissed but hold that in light of his letter of 18 June 2002 claiming a redundancy payment and as he subsequently requested from the respondent his P45 the applicant was not dismissed but left the respondent's employment of his own choice.
1.13 The applicant stated that he had seen an advertisement for what he considered to be his job in the Job Centre on 23 June 2002. The tribunal are satisfied that the business of the respondent was picking up during the middle of June and they were anxious to re-start the applicant as referred to above but when the applicant persisted in his decision to leave their employment they had no option but to advertise for a new operative.
Chairman:
Date and place of hearing: 20 April 2004, Belfast.
Date decision recorded in register and issued to parties:
