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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGarry v Abbey Insulation Services Sean Heaney Patrick Heaney Seamus Heaney [2011] NIIT 01077_11IT (06 September 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/1077_11IT.html Cite as: [2011] NIIT 01077_11IT, [2011] NIIT 1077_11IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1077/11
CLAIMANT: Kevin Joseph McGarry
RESPONDENTS: 1. Abbey Insulation Services
2. Sean Heaney
3. Patrick Heaney
4. Seamus Heaney
DECISION
The decision of the tribunal is that the claimant is entitled to five weeks’ notice pay amounting to £1,246.70, a redundancy payment of £1,593.75, an amount of £249.34 for a lying week due to him, and £49.87 in respect of one day’s outstanding wages, totalling £3,139.66.
Constitution of Tribunal:
Chairman (sitting alone): Mr S A Crothers
Appearances:
The claimant was present and represented himself.
The respondents did not appear and were not represented. The second-named respondent had presented a response to the claim.
Title
1. The title of the respondents is amended to that shown above.
Claim
2. The claimant claimed that he had not received a redundancy payment or a notice payment. He also claimed for one day’s outstanding wages together with an amount for a lying week. The response entered by the second-named respondent indicated that the claim was not being resisted and that the respondents would not be attending the tribunal hearing.
The Issues
3. The issues before the tribunal were as follows:-
(1) Whether the claimant is entitled to a sum in respect of notice pay, a lying week and one day’s outstanding wages.
(2) Whether the claimant is entitled to a redundancy payment.
Sources of Evidence
4. The tribunal heard evidence from the claimant and considered relevant documentation in the course of the hearing, including the response presented to the tribunal by the second-named respondent.
Findings of Fact
5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i)
The claimant was employed by the
first-named respondent from 3 May 2005 until 24 January 2011, being the
effective date of termination of his employment.
(ii) The tribunal is satisfied that the second, third and fourth-named respondents operated Abbey Insulation Services in partnership.
(iii) The tribunal is satisfied that the claimant was made redundant by the first-named respondent and that he did not receive a redundancy payment or notice pay. In addition he was owed an amount for a lying week and for one day’s outstanding wages for 24 January 2011.
(iv) The claimant’s date of birth is 7 April 1976. His gross weekly wage was £318.75, £249.34 net.
(v)
The claimant presented his claim
to the tribunal on 3 May 2011.
(vi)
The claimant applied to the
Department for Employment and Learning for a redundancy payment together with
an amount for a lying week and a day’s wage. He received correspondence dated
8 May 2011 stating that it would take 6-8 weeks to investigate his claim. He
received further correspondence from the Department dated 12 April 2011
rejecting his claims and referring to a possible claim to the tribunal. Within
a week following the letter of rejection, the claimant made an appointment to
see a Miss Frazer who worked on the Antrim Road in Belfast for advice in
relation to the matter. He was advised to contact the Law Centre for a claim
form. This was signed by him on 29 April 2011 and presented to the tribunal on
3 May 2011.
The Law
6. (i) Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-
“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, …
(2) Paragraph (1) has effect subject to the following provisions of this Part (including, in particular, Articles 175 - 179, 184 - 187, 190 - 196 and 199).”
(ii) Article 180(5) of the Order provides as follows:-
“Where -
a. the contract of employment is terminated by the employer;
b. the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as defined by the previous provisions of this Article).
For the purposes of Articles 23(3), 190 and 197(1) the later date is the relevant date.”
(iii) Article 180(6) provides that “the material date” means the date when notice of termination was given by the employer, or where no notice was given, the date when the contract of employment was terminated by the employer.
(iv) Article 197
of the Order provides for the amount of redundancy payment.
(v) The tribunal also considered the provisions in the Order relating to unlawful deductions from wages.
(vi) The provisions in relation to breach of contract are contained in the Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”). Under this Order an employee can bring a breach of contract claim in respect of a number of matters outstanding on the termination of his employment. This can include a claim for a lying week or notice pay and, (where not otherwise governed by the unlawful deduction from wages jurisdiction in the Order), for arrears of pay.
(vii) Article 7 of the 1994 Order states as follows:-
“An Industrial Tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented –
(a)
within the period of three months
beginning with the effective date of termination of the contract giving rise to
the claim; or
(b) why there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated; or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable”.
Conclusions
7. Having applied the relevant principles of law to the findings of fact, the tribunal is satisfied that time should be extended under the 1994 Order and that the claimant is entitled to five weeks’ notice pay (£249.34 x 5) = £1,246.70 together with the amount of £249.34 for a lying week. The claimant had five complete years employment and was therefore entitled to five weeks’ gross pay by way of redundancy payment (£318.75 x 5) = £1,593.75. He is also entitled to an amount of £49.87 for an outstanding day’s wages.
8. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 July 2011 and 26 August 2011, Belfast.
Date decision recorded in register and issued to parties:
