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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McClements v O'Neill [2009] NIIT 665_08IT (14 January 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/00665.html Cite as: [2009] NIIT 665_08IT, [2009] NIIT 665_8IT |
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The decision of the tribunal is that the respondent shall pay the claimant a redundancy payment of £2,708.48. The tribunal dismisses the claimant’s claim for notice pay.
Constitution of Tribunal:
Chairman (Sitting Alone): Ms Bell
1. The claimant complained in her claim that she had not received a redundancy payment following closure of the respondent’s business and 8 weeks of her 12 week notice entitlement.
2. No response to the claim has been accepted from the respondent in accordance with the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
ISSUES
3. The issues for the tribunal were whether the claimant was entitled to:-
a redundancy payment;
pay in lieu of notice.
EVIDENCE
4. The tribunal considered the claim, documentation and correspondence from the claimant and heard oral evidence from the claimant.
FINDINGS OF FACT
5. The claimant, born on 28 May 1971, was employed by the respondent as a senior care assistant from 1 November 1989 in Antrim Coast Private Nursing Home until the respondent decided to cease carrying on his business on 31 October 2007.
The respondent gave the claimant notice of termination of her employment by letter dated 28 September 2007.
The claimant made a claim in writing to the respondent in respect of her redundancy payment and notice on 30 October 2007 and subsequently received a reply from the respondent dated 26 November 2007 assuring her that a redundancy payment would be made, as at the hearing date the claimant had not heard from the respondent since.
The claimant was contracted to work 30.5 hours per week at £5.55 gross per hour.
The claimant’s claim was received by the Industrial Tribunal on 29 April 2008.
THE LAW
6. Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his if the employee is dismissed by the employer by reason of a redundancy.
7. Under Article 174 of the 1996 Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him, or to carry on that business in the place where the employee was so employed.
8. Article 197 of the 1996 Order sets out how the amount of a redundancy payment shall be calculated.
9. The Industrial Tribunal has jurisdiction to hear contract claims for the recovery of damages under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 subject to the time limits set out in Article 7. Under Article 7 an Industrial Tribunal shall not entertain a contract claim unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the applicable period, within such further period as the tribunal considers reasonable.
APPLICATION OF LAW TO THE FACTS
10. The tribunal is satisfied from the claimant’s undisputed oral and documentary evidence that the claimant was dismissed by reason of redundancy the respondent having ceased to carry on his business for the purposes of which the claimant was employed on 31 October 2007.
11. At 31 October 2007 the claimant had 17 complete years of service 15 years of which she was not below 22 years of age and 2 years of which she was below 22 years of age. Accordingly the claimant is entitled to a redundancy payment calculated as follows:-
15 x £169.28 x 1 = £2,539.20
2 x £169.28 x 0.5 = £168.28
£2,708.48
12. Whilst the claimant was clearly entitled under her contract and by statute to a minimum of 12 week’s notice but only received 4, the tribunal is not satisfied that it has jurisdiction to hear her contract claim, it having been presented out of time, and even if the Tribunal were satisfied by reason of the claimant’s mothers serious illness in January 2008 that it was not reasonably practicable for it to be presented within three months of termination of the claimant’s employment, the Tribunal is not satisfied that the contract claim was presented within a reasonable period of time thereafter.
13. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.
Chairman:
Date and place of hearing: 17 October 2008, Belfast
Date decision recorded in register and issues to parties:
