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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Boyd v W J McWilliams, D Kullas and M... [2010] NIIT 1192_10IT (09 November 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/1192_10IT.html Cite as: [2010] NIIT 1192_10IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1192/10
CLAIMANT: Barbara Boyd
RESPONDENT: W J McWilliams, D Kullas and M Merries as the Committee members and representatives of the trustees of the Royal British Legion Club, Donaghadee.
DECISION
The decision of the tribunal is that the correct name of the parties is as detailed above and the title of the proceedings is ordered to be amended accordingly. Further the claimant is owed the sum of £7,092.03 in respect of redundancy payment and monies in lieu of notice. The respondent is ordered to pay to the claimant the sum of £7,092.03.
Constitution of Tribunal:
Chairman (sitting alone): Ms M Sheehan
Appearances:
The claimant was unrepresented and appeared at hearing.
The respondent was represented at hearing by Mr W McWilliams and Mr M Merries.
1. The claimant presented an originating complaint on 27 April 2010 that her employment with the respondent was terminated without notice on 22 October 2009. The claimant alleged that the respondent since her dismissal had failed to account to her for notice pay or a redundancy payment. The claimant submitted a complaint in writing to the respondent on 23 October 2009 and 1 November 2009. Having received no response the claimant submitted her originating complaint to the Office of the Industrial Tribunals and Fair Employment Tribunal.
Issues
2. The issues for the tribunal were:-
(a) Is the claimant entitled to a redundancy payment? and
(b) Is the claimant entitled to pay in lieu of notice?
The claimant had not indicated in her claim form that she was making a claim for unfair dismissal.
Evidence
3. The tribunal considered the claim; documentation received from the claimant and heard the claimant’s oral evidence and evidence from the representatives of the respondent.
Findings of Fact
4. The claimant who was born on 12 February 1952, commenced employment with the Royal British Legion Club Donaghadee, on 11 July 1998 as a Bar Stewardess. At the time of dismissal the claimant was paid approximately £277.50 gross per week, being £228.48 net.
5. The claimant was advised on 22 October 2009 by the Chairman of the Royal British Legion Club Donaghadee, Mr McWilliams, to close the premises. Since that date the premises have remained closed. No further trading has taken place on the part of the respondent.
6. The respondent accepted at hearing that the claimant was owed eleven weeks pay in lieu of notice but had been unable to make any payments. The respondent had no funds to continue operating the club – even with the use of unpaid volunteers.
7. The claimant had been provided with a Statement of Terms and Conditions of Employment. A signed copy was produced at hearing which was dated 4 September 2001. The terms included provision that the claimant would be entitled to one week’s notice of termination for each complete year of service, subject to a maximum of twelve weeks notice.
8. The claimant accepts that the respondent business had not been going well. The claimant did not receive anything in writing from the respondent regarding the situation. The claimant when she did not receive any monies due to her put in writing to the respondent her grievance that she had not been paid pay in lieu of notice and the monies due in respect of redundancy.
9.
Since dismissal the claimant did
seek Jobseekers Allowance from
25 October 2009 until 25 November 2009 inclusive. The claimant gained
employment on 26 November 2009 at a similar weekly wage level.
The Law
10. Article 170 of the Employment Rights (Northern Ireland) Order 1996 (referred to as the 1996 Order) 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 redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include 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.
11. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.
12. Under Article 118B of the 1996 Order an employer is required to give minimum notice to terminate the contract of employment of a person of 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 12 years.
13. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.
Applying the Law to Facts Found
14. On consideration of all the evidence before it the tribunal is satisfied of the following:
15. Redundancy Payment
The claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent having ceased trading as licensed premises on 22 October 2009. As there was no break in the claimant’s continuity of employment from 11 July 1998 to 22 October 2009, the claimant had eleven complete years of service, commencing when she was aged 46 years. This entitled her to one and a half weeks’ pay for each year of service.
While it was clear to this tribunal that the respondent had failed to adhere to the statutory dismissal procedures, the claimant had not submitted a claim for unfair dismissal, so no finding could be made in respect of same.
The claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order and the Employment Rights (Increase of Limits) Order (Northern Ireland) 2009 No.45 as follows;
11 years continuous employment x 1.5 x a weeks pay namely £277.50 = £4,578.75
16. Notice
Article 118B of the 1996 Order implies a minimum notice requirement of eleven weeks into the claimant’s contract of employment with the respondent. The claimant did not receive proper notice of termination of her employment from the respondent, in accordance with her terms and conditions of service. In the absence of proper notice being given the claimant was entitled to eleven weeks net pay being £228.48 per week, amounting to £2,513.28.
Conclusion
17. The claimant is entitled to a statutory redundancy payment, and payment in lieu of her statutory minimum notice entitlement.
18. Summary of Compensation Awarded
Redundancy Payment £4,578.75
Notice £2,513.28
TOTAL £7,092.03
19. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 are not applicable to this award.
20. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21 September 2010, Belfast.
Date decision recorded in register and issued to parties:
