THE INDUSTRIAL TRIBUNALS
CASE REFS: 199/04
200/04
APPLICANTS: Charles Pearson
Gillian Pearson
RESPONDENTS: 1. DEL Redundancy Payments Service
2. Alexander Gill & Sons Ltd
DECISION
The unanimous decision of the tribunal is that it would be just and equitable for the applicants to receive redundancy payments, notwithstanding the fact that their applications were received outside the six month time limit.
Appearances:
The applicants represented themselves.
The first named respondents were represented by Ms K. Dobbin of DEL Redundancy. Payments Service.
The second named respondents were represented by Ms M. Kelly of Mary Kelly Solicitors.
REASONS
- The tribunal heard evidence from the second named applicant, Mrs Pearson. Neither respondent called evidence. The tribunal found the following facts.
- The second named respondent, a limited company, went into liquidation on 6 February 2003. The first named applicant, Mr Pearson, had worked for the company for thirteen years, the second named applicant, Mrs Pearson, for sixteen years, prior to and up until its going into liquidation.
- Both applicants were supplied with application forms (RP1s) by the liquidator, Philip Gill & Co, to permit them to claim redundancy payments, and Gill & Co, undertook to forward the completed forms to Redundancy Payments Service. Both applicants completed the forms in late March 2003. They forwarded them to the address provided by the liquidator, being Philip Gill & Co, The McDonald Building, Mill Street, Comber.
- When in late August – early September the applicants had still not had any response Mrs Pearson made a number of attempts to contact the liquidator to make enquiry about their applications for redundancy payments. Eventually she was advised by the liquidator at the end of October – early November that the application forms, despite being correctly addressed, had been wrongly delivered to a vacant office next door to the liquidator's office and had lain undiscovered for several months. However, when they were discovered they were forwarded to Redundancy Payments Service.
- Mrs Pearson referred the tribunal to correspondence from Redundancy Payments Service (RPS) dated 12 November 2003 acknowledging receipt of her application for redundancy payment. Mrs Pearson then referred the tribunal to further correspondence from RPS dated 14 January 2004 advising her that her application had been rejected because it had not been submitted to RPS within the required six month time limit. Mr Pearson had received correspondence in the same terms. Both applicants were advised by RPS that if they disagreed with the decision they should apply to an industrial tribunal. Both applicants promptly lodged claims with the tribunal.
The Law
- Article 201 of the Employment Rights (Northern Ireland) Order 1996 provides that where an employee is entitled to a redundancy payment but the employer is insolvent the employee may apply to the Department for payment. Article 199 lays down the time limits for making application for redundancy payment. Paragraph (1) provides that an employee does not have any right to a redundancy payment unless the employee has made a claim for payment by notice in writing given to the employer before the end of a period of six months from the relevant date.
- Paragraphs (2) and (3) of Article 199, qualifying the time limit, provide as follows:-
(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 …
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 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.
- The issue for the tribunal to determine therefore was whether it was just and equitable that the applicants should receive a redundancy payment. Under the six month time limit prescribed by the Order at Article 199(1) the applicants' applications for redundancy payments, received on 11 November 2003, were outside the time limit set by the Order. However, the tribunal concluded on the evidence of the correspondence placed before it, and on the oral evidence of Mrs Pearson, that the applicants had taken all reasonable steps to pursue their claims for redundancy payments. They initially made their applications in good time. They acted promptly to press the liquidator when they realised there had been a delay in the handling of their claims. They also acted promptly to refer their claim to tribunal when they received notice that their applications had been refused. In virtue of the 'just and equitable' discretion conferred upon it by Paragraph (2) of Article 199, and taking account of the reasons shown for delay by the applicants in Mrs Pearson's evidence – reasons that were uncontested by the respondents – the tribunal unanimously decided that it was just and equitable that the applicants should receive a redundancy payment.
Chairman:
Date and place of hearing: 3 March 2005, Belfast.
Date decision recorded in register and issued to parties:
