Young v Scott Keenan trading as Keenan... [2010] NIIT 545

THE INDUSTRIAL TRIBUNALS

CASE REF: 545/10

CLAIMANTS: Robert Young

RESPONDENT: Scott Keenan trading as

Keenan Inns

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 £2,300.00 in respect of redundancy payment and monies in lieu of notice. The claim for holiday pay under the Working Time Regulations as amended is dismissed. The respondent is ordered to pay to the claimant the sum of £2,300.00.

Constitution of Tribunal:

Chairman: Ms M Sheehan

(sitting alone)

Appearances:

The claimant appeared at hearing and represented himself.

The respondent did not appear and was not represented.

1. The claimant presented a claim form on 16 March 2010 stating that his employment with the respondent was terminated with one weeks notice on 27 December 2009. The claimant alleged that the respondent, since his dismissal, had failed to account to him for notice pay, accrued holiday leave or a redundancy payment. The claimant submitted a complaint in writing to the respondent on 16 February 2010 and having received no response submitted his claim form 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, (b) Is the claimant entitled to pay in lieu of notice and (c) has the respondent failed to pay the claimant monies due in lieu of holidays accrued but not availed of while in employment. The claimant had not indicated in his claim form that he was making a claim for unfair dismissal so no such claim fell to be determined by this tribunal.

Evidence

3. The tribunal considered the claim; documentation received from the claimant and heard the claimant’s oral evidence.

Findings of Fact

4. The claimant who was born on 27 October 1983, commenced employment with Steven Rogan trading as “The Black Boat”, on
1 November 2005 as a chef. In or about the 7 May 2008, there was a “relevant transfer” of the business within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations as revised from Steven Rogan to the respondent Scott Keenan trading as Keenan Inns. At the time of dismissal the claimant was paid approximately £387.47 gross per week, being £300.00 net.

5. The claimant was initially advised on 27 December 2009 by the Manageress of the “Black Boat”, Rachel McWilliams that the kitchen would be closing with effect from 1 January 2010. The next day, 28 December 2009, the respondent advised him his employment would terminate on 1 January 2010 as he could not afford to keep the restaurant running. However the licensed premises were to remain open. The respondent accepted that the claimant was owed four weeks pay in lieu of notice but proposed payments by instalments. The respondent proposed to pay the claimant four weeks pay but to pay it over a period. The respondent paid him for three weeks, and then stopped.

6. The claimant accepts that the restaurant business had not been going well. All kitchen staff were dismissed with effect on the 31 December 2009 but no mention was made to the claimant or any of them of redundancy payments. The claimant did not receive anything in writing from the respondent regarding the situation. The claimant when he did not receive the other monies agreed as due to him sought advice from the Citizens Advice Bureau which led to him writing to the respondent setting out his grievance that he had not been paid four weeks pay in respect of redundancy, insufficient notice of termination of his employment – which entitled him to a “further three weeks full pay” and “one weeks holiday pay” was also due and owing to the claimant.

7. At hearing the claimant advised the tribunal he had taken eight days holiday during the year and was still owed 20 days in respect of holidays accrued but not taken prior to his dismissal. The claimant also advised that on 19 May 2010 he received an undated letter from the respondent, a copy of which he wished to furnish to the tribunal. The claimant denies that the letter accurately reflects any agreement reached between the parties. The letter does appear to acknowledge that full monies due and owing to the claimant were not discharged by the respondent.

8. Since dismissal the claimant did not seek JobSeekers Allowance and gained employment on the 27 January 2010 at a similar weekly wage level.

The Law

9. 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 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.

10. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.

11. 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 weeks’ notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

12. The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulation 13A for a worker to have minimum leave in a year of 5.6 weeks from 1 April 2008, and for the purposes of the regulations that the worker’s leave year begins, where there are no applicable provisions of a relevant agreement, if the worker’s employment began after 23 November 1998, on the date on which that employment began and each subsequent anniversary of that date.

13. Under Regulation 14(2) of the 1998 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement. However payment can only be in respect of the leave accrued in the current leave year.

14. 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

15 On consideration of all the evidence before it the tribunal is satisfied of the following:

16. 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 so far as the restaurant business was concerned. As there was no break in the claimant’s continuity of employment between the1 November 2005 to 31 December 2009, the claimant had four complete years of service, commencing when he was aged 22 years.

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;

4 years continuous employment x 1 x statutory maximum for a weeks pay namely £350.00 = £1,400.00

17. Notice

Article 118B of the 1996 Order implies a minimum notice requirement of four weeks into the claimant’s contract of employment with the respondent. The claimant did not receive proper notice of termination of his employment from the respondent. In the absence of proper notice being given the claimant was entitled to four weeks net pay being £300.00 per week less any monies paid in respect thereof.

There was an apparent conflict between the letter of grievance written by the claimant in February 2010 and his evidence at the tribunal but on the basis of the evidence and documentation given to the tribunal it appeared the respondent had intended to furnish to the claimant two weeks pay in respect of notice and two weeks holiday pay. As the claimant only received three weeks pay from the respondent – and one of those payments was for the week ending 31 December 2009, it would appear the respondent had in fact only discharged monies in respect of the two weeks holiday pay and one weeks notice. On that basis the tribunal was satisfied, on the balance of probabilities, that the claimant was still owed three weeks net pay being £300.00 x 3 - £900.00 in lieu of notice.

18. Holidays

The respondent did pay to the claimant on termination of his employment two weeks payment in lieu of leave accrued due under the Working Time Regulations. The tribunal could only assume that this may have been in respect of leave accrued in the earlier holiday year – as in the absence of contractual terms and conditions, the claimant’s holiday year under the statutory provisions commenced on the 1 November of each year. Accordingly as of the 31 December 2009, the claimant had accrued due holidays for approximately one out of twelve months of the holiday year, rounded up amounting to 2 days holiday accrued. On that basis the tribunal did not consider that any further payment could be ordered in respect of holiday leave accrued but not availed of prior to the termination of his employment.

Conclusion

19. The claimant is entitled to a statutory redundancy payment, and payment in lieu of his statutory minimum notice entitlement.

20. Summary of Compensation Awarded

Redundancy Payment £1,400.00

Notice £ 900.00

TOTAL £2,300.00

21. 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:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Young v Scott Keenan trading as Keenan... [2010] NIIT 545_10IT (05 July 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/545_10IT.html Cite as: [2010] NIIT 545_10IT

Industrial Tribunals Northern Ireland Decisions