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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kelso v IPS Industrial Packaging Servi... [2010] NIIT 456_10IT (24 June 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/456_10IT.html Cite as: [2010] NIIT 456_10IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 456/10
CLAIMANT: Dorinda Kelso
RESPONDENTS: IPS Industrial Packaging Services Limited
DECISION
The decision of the tribunal is that the claimant is entitled to an award of £2,493.00 in respect of a redundancy payment.
Constitution of Tribunal:
Chairman (sitting alone): Mr Wimpress
Appearances:
The claimant was unrepresented and appeared on her own behalf.
The respondent did not appear and was not represented
The Claim and the Response
1. In a claim form dated 3 March 2010, the claimant sought a redundancy payment in respect of the termination of her employment with the respondent on 31 August 2009. In its response the respondent admitted that the claimant was dismissed by reason of redundancy but denied that she was entitled to a redundancy payment on the basis that she had refused an offer of suitable alternative employment. The respondent’s legal representatives, Messrs Halliwells LLP, wrote to the tribunal office on 12 May 2010 and advised that the respondent would not be attending the hearing due to its financial position but was content that the hearing should proceed in its absence. The letter also noted that the previous first named respondent, Mr Mark Whitworth, had been dismissed from the proceedings.
Sources of Evidence
2. The tribunal received a small bundle of documents from the claimant and heard oral evidence from her. The tribunal also took into account the contents of the response form and the submissions incorporated in same.
The Facts
3. The claimant’s
date of birth is 21 October 1949. The claimant commenced employment as an
administrative assistant with Industrial Packaging Services on
1 May 2003 where she was one of two employees. The firm was purchased by Mr.
Whitworth on or about 1 March 2008 and it became a limited company known as IPS
Industrial Packaging Services Limited. The claimant’s employment continued
with the new company. The claimant was paid £1,200 per month gross which
equates to £277.00 per week gross.
4. On 1 September 2009 the respondent’s business closed down. When the claimant arrived at work at 10.30 am after a hospital appointment the place was in disarray with computer equipment having been ripped out and removed. Later the same day Mr Whitworth phoned the claimant and asked her whether she would be willing to contact customers in order to get money in. He told her that he would reimburse her for telephone calls. The claimant initially agreed but changed her mind having given some further thought to the matter. She emailed Mr Whitworth the next day and advised that she was not prepared to do it as it made her feel uncomfortable. The claimant also asked Mr Whitworth about a redundancy payment and holiday pay. In her evidence to the tribunal, the claimant was adamant that there was no discussion of an alternative job as such with hours and wages.
5. On or about 17 September 2009, Mr Whitworth wrote to the claimant thanking her for her hard work over the last eighteen months and enclosing a cheque for £553.84 which represented accrued holiday pay and two weeks notice pay. The cheque was signed by Mr Whitworth for on behalf of Centrepac Limited which was another business in which he had an interest. The claimant duly cashed the cheque without difficulty.
6. On 22 November 2009, the claimant sent an email to Mr Whitworth advising that she wished to make a claim for redundancy and seeking the contact details of the person dealing with it. The claimant also wrote to a Mr Liam Leroy of SB Corporation Solutions Ltd on 8 December 2009 and asked him to provide relevant details regarding her redundancy. Mr. Whitworth replied to the claimant on
11 December 2009 and advised that he had forwarded her email to Mr Leroy. Mr Leroy did not respond to the claimant but made it known elsewhere that he was only representing Centrepac Limited.
7. The claimant has not worked since the respondent’s business closed down and she is now retired.
The Law
8. The relevant statutory provisions are found in Articles 170, 174,197,198 and 199 of the Employment Rights (Northern Ireland) Order 1996.
170. (1) An employer shall pay a redundancy payment to any employee of his if the employee—
(a) is dismissed by the employer by reason of redundancy, or ...
174. (1) For the purposes of this 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 –
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed by him, or
(b) the fact that the requirements of that business—
(i)
for employees to carry out work of a particular kind,
or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.
(6) In Paragraph (1) “cease” and “diminish” mean cease and diminish
either permanently or temporarily and for whatever reason.
197. (1) The amount of a redundancy payment shall be calculated by—
(a) determining the period, ending with the relevant date, during
which the employee has been continuously employed,
(b) reckoning backwards from the end of that period the number
of years of employment falling within that period, and
(c) allowing the appropriate amount for each of those years of
employment.
(2) In paragraph (1)(c) “the appropriate amount” means—
(a) one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one,
(b) one week's pay for a year of employment (not within sub-paragraph (a) in which he was not below the age of twenty-two, and
(c) half a week's pay for each year of employment not within sub-paragraph (a) or (b).
198. —(1) Any question arising under this Part as to—
(a) the right of an employee to a redundancy payment, or
(b) the amount of a redundancy payment, shall be referred to
and determined by an industrial tribunal.
(2) For the purposes of any such reference, an employee who
has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.
199.—(1)An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date—
(a) the payment has been agreed and paid,
(b) the employee has made a claim for the payment by notice in writing given to the employer,
(c) a question as to the employee's right to, or the amount of, the payment has been referred to an industrial tribunal, or
(d) a complaint relating to his dismissal has been presented by
the employee under Article 145.
(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, or
(c) presents a complaint relating to his dismissal under
Article 145, 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 an 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.
9. Accordingly, in order to succeed in his claim for a redundancy payment it is necessary for the claimant to demonstrate that he or she has complied with Article 199 (1)(b) of the 1996 Order. To do this it is necessary for the claimant to make a claim for the payment by notice in writing given to the employer within six months of the relevant date. The relevant date in this case is 1 September 2009 being the date on which the claimant’s employment terminated. I am satisfied that the claimant’s email of 22 November 2009 and letter of 8 December 2009 constitute compliance with the requirements of Article 199 (1)(b).
10. In their submissions to the tribunal, Messrs Halliwells LLP submitted that the claimant was not entitled to a redundancy payment because she unreasonably refused an offer of alternative employment with another company owned by Mr. Whitworth. No evidence was advanced to support this contention and in view of the claimant’s firm evidence that no offer of alternative employment was made to her, I am satisfied that she is correct in this regard.
Award
11. Based on the claimant’s age at the time when she was made redundant which was 59 and her six completed years of service, I am satisfied that the claimant is entitled to a redundancy payment as follows:
£277.00 x 6 x 1.5 = £2,493.00
Total Award £2,493.00
12. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 19 May 2010, Belfast
Date decision recorded in register and issued to parties:
