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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGreevy v James Smyth T/A Maxol Scarva R... [2010] NIIT 02138_10IT (28 February 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/02138_10IT.html Cite as: [2010] NIIT 02138_10IT, [2010] NIIT 2138_10IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2138/10
CLAIMANT: Orla McGreevy
RESPONDENT: James Smyth T/A Maxol Scarva Road Filling Station
DECISION
The decision of the tribunal Chairman sitting alone is that the claimant’s claims are well founded and the respondent is ordered to pay to the claimant the total sum of £809.97.
Constitution of Tribunal:
Chairman (Sitting Alone): Ms Julie Knight
Appearances:
The claimant appeared and represented herself.
The respondent did not appear nor was represented
Issues:
1. Was the claimant entitled to a redundancy payment, notice pay and holiday pay?
Evidence
2. The claim was considered heard together with the claims of her former colleagues. The tribunal considered the oral and documentary evidence, including proof of earnings, of the claimant and her former colleagues before reaching a decision.
Facts
3. The tribunal found the following facts to be proven on a balance of probabilities:
4. The claimant was employed by the respondent as a customer assistant from 1 September 2007 until her effective date dismissal on 20 May 2010. She was not given written terms and conditions of her employment. Her employer did not permit her to take paid holidays. On 20 May 2010 the claimant was handed a letter by the respondent advising of his intention to enter into an Individual Voluntary Arrangement with his creditors and terminating her employment without any prior notice and without complying with the statutory dismissal procedures prescribed by Article 17 of the Employment (NI) Order. The respondent closed his business the same day. The IVA was approved on 11 November 2010.
5. At the effective date of dismissal the claimant was 29 years old and had 2 full years’ service. Her average gross and net weekly pay figures were £83.68 and £66.65 respectively. Her net daily rate of pay was £22.31 and she worked on average three days per week. The respondent has not responded to the claimant’s requests for a redundancy payment or notice pay. The claimant lodged her complaint with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 2 September 2010. No response was entered by or on behalf of the respondent.
The Law and Conclusions
6. Article 170 of the Employment Rights (NI) Order (the “1996 Order”) provides the right to receive a redundancy payment where, as in the present case, the employment is terminated by reason of redundancy.
7. Article 118 of the 1996 Order sets out the minimum statutory notice periods where, as in this case, there are no contractual notice terms. The claimant is entitled to statutory notice pay equivalent to 2 weeks’ net pay.
8. The Working Time Regulations provide statutory minimum periods of annual leave, subject to a maximum of 28 days per annum. The claimant’s leave year runs from 1 September by reference to the date upon which her employment commenced. She is entitled to 16.8 days annual leave pro rata.
9. An employer is required to provide his employees with a written statement of particulars of employment. Article 27 of the Employment (NI) Order 2003 (the “2003 Order”) provides that the tribunal shall make a minimum award of two weeks’ gross pay. This does not require a specific claim for the additional award.
10. The statutory dismissal procedures apply to claims for redundancy payments, holiday pay under the Working Time Regulations and notice pay. Article 17(3) provides for an increase of the award where the statutory procedure has not, as in this case been completed due to the fault of the employer.
11. I therefore determine that the claimant is entitled to an award of compensation calculated as follows:
Redundancy Pay
£83.68 x 2 x 1 (age multiplier) £167.36
Notice Pay
£66.95 x 2 £133.90
Holiday Pay
£258.00 x 16.8 = 12 days leave (11.87 rounded up)
365
x £22.31daily rate £267.72
Article 27 2003 Order award £167.36
Article 17(3) 10% uplift £73.63
Total Award £809.97
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 27 January 2011, Belfast.
Date decision recorded in register and issued to parties:
