Connolly v Patrick j Travers t/a Travers ... [2012] NIIT 02604

THE INDUSTRIAL TRIBUNALS

CASE REF: 2604/11

CLAIMANT: Roger Daniel Connolly

RESPONDENT: Patrick J Travers t/a Travers Upholstery

DECISION

The claimant is entitled to a redundancy payment, the respondent shall pay the claimant £3,157.42. The tribunal does not have jurisdiction to entertain the claimant’s breach of contract claim for payment in lieu of notice or holiday pay claim, in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 respectively, regarding the time limits for presenting such claims. The claimant’s notice and holiday pay claims are dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Ms M Bell

Appearances:

The claimant appeared in person.

The respondent did not appear and was not represented.

1. The claimant in his claim complained that he had not received a redundancy payment, proper notice or holiday pay on termination of his employment.

2. No response was presented by the respondent.

3. The claimant confirmed at hearing that he was employed by Mr Patrick J Travers t/a Travers Upholstery. The title of the respondent is accordingly amended from ‘Mr PJ Travers, Travers Upholstery’ to ‘Patrick J Travers t/a Travers Upholstery’.

ISSUES

4. The issues before the tribunal were

(i) Is the claimant entitled to a redundancy payment?

(ii) Has the tribunal jurisdiction to entertain the claimant’s claims for notice and holiday pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting such claims? That is,

- Were the claims presented in time? If not,

- Was it not reasonably practicable for the claims to be presented in time? If so,

- Were the claims presented within such further period as the tribunal considers reasonable?

If so,

- Is the claimant entitled to pay in lieu of notice?

- Is the claimant entitled to holiday pay?

EVIDENCE

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

FINDINGS OF FACT

6. The claimant who was born on 29 March 1960, commenced employment with the respondent as an upholsterer shortly before June 1997 although he could not recollect the exact date. The claimant was the respondent’s only employee and was paid approximately £166.18 gross per week, being £162.92 net.

7. The claimant was given notice of one week by the respondent that his employment would end on 10 June 2011 by reason of redundancy, because of a downturn the respondent had decided to downsize as he could no longer afford to continue to employ the claimant.

8. The claimant’s employment ended on 10 June 2011 and the only payment he received on termination was for the last week he had worked.

9. The claimant sought advice from a solicitor in the Citizens Advice Bureau (CAB) in September 2011 who advised him regarding his entitlement to a redundancy payment, notice and holiday pay on termination of his employment and that time limits applied for presenting claims in respect thereof to the industrial tribunal. The claimant remembered being advised of a six month time limit but could not recollect whether he was advised that a three month time limit normally applies to notice and holiday pay claims.

10. The Claimant presented his claim to the office of tribunals on 17 October 2011.

THE LAW

11. 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 and include if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind, or 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.

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

13. By virtue of 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. The requirement to give at least statutory minimum notice is implied into the contract of employment and a failure to give proper notice is a potential breach of contract.

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 subject to the time limits set out in Article 7. Whilst longer time limits usually apply for bringing a breach of contract claim in the civil courts, an Industrial Tribunal, under Article 7, shall not however entertain a contract claim unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the applicable period, within such further period as the tribunal considers reasonable.

15. The Working Time Regulations (Northern Ireland) 1998 provide for a worker to have minimum leave in a year and for an employer to, on termination of employment, make a payment in lieu of leave accrued due, but not taken. However, under Regulation 30(2), an Industrial Tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the date on which it is alleged the payment should have been made, or, within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable to be presented before that period of three months.

Applying the Law to Facts Found

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

Redundancy Payment

17. Based on the claimant’s undisputed oral and documentary evidence, the claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent’s requirement for employees to carry out work of a particular kind having diminished. On termination of his employment the claimant had fourteen complete years of service, during ten of which he was not below the age of 41. The claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows;

10 years continuous employment x 1.5 x £166.18 = £2,492.70

4 years continuous employment x 1 x £166.18 = £664.72

Total £3,157.42

Notice and Holiday Pay

18. Article 118B of the 1996 Order implies a minimum notice requirement of twelve weeks into the claimant’s contract of employment. The claimant’s breach of contract claim for pay in lieu of notice to compensate him for his loss as a result of the respondent not providing him with his proper notice entitlement and his holiday pay claims were however received by the Office of the Industrial Tribunals outside the time limit of 3 months set out under Article 7 of the 1994 Order and Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 respectively. The claims were received by the Office of the Industrial Tribunals more than four months after the 10 June 2011, the claimant’s effective date of termination, the last date upon which he worked for the respondent and date of the last payment made by the respondent to the claimant. Accordingly the tribunal must decide whether it was not reasonably practicable for the claimant to present his notice and holiday pay claims to the tribunal within the 3 month time limit, and if satisfied of this, whether the claims were then presented within such further period as the tribunal considers reasonable.

19. It is the claimant’s duty to show precisely why it was that he did not present his complaint. The tribunal notes that the claimant sought advice as to his rights from a solicitor with the CAB in September 2011 but did not then present his complaint until 17 October 2011. The claimant gave evidence that he did not present his claim to the tribunal earlier as he was initially shocked and extremely disappointed at his employment coming to an end, that he had initially received bad advice and felt that there was an onus on him not to pursue a claim against the respondent because his was a small business, but subsequently after the advice of a solicitor as to his rights decided to proceed. He gave evidence that he was advised of a six month time limit but could not recollect mention of a three month time limit for presenting claims for notice and or holiday pay to the tribunal. Ignorance of one’s rights will rarely be an acceptable reason making it not reasonably practicable for not presenting a claim in time. A claimant is generally expected to make suitable enquiries as to their rights, and more so, where a claimant has sought advice, ignorance of the time limits for submission of a claim to the Industrial Tribunal will rarely be acceptable as a reason for delay because the claimant is put on inquiry as to the time limits. Advisors are generally assumed to know time limits and be aware of the necessity of presenting claims in time, particularly where advice has been obtained from what might be considered to be a ‘skilled advisor’ in a professional sense. No suggestion has been made by the claimant of any fault on the part of the professional advisor regarding time limits. The tribunal notes that the claimant had difficulty in recollecting precise dates in the course of his evidence and considers it likely that there may have been some confusion on the claimant’s part as to the advice he received in respect of time limits for presenting claims for notice and holiday pay to the tribunal.

20. The tribunal considers that there is no evidence before it upon which it is persuaded that it was not reasonably practicable for the claimant to present his claims for notice and holiday pay within the required time limit of three months and finds that it accordingly does not have jurisdiction to entertain the claimant’s claims for notice and holiday pay, in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 respectively, regarding the time limits for presenting such claims.

CONCLUSION

21. The claimant is entitled to a redundancy payment under Article 170 of the 1996 Order from the respondent of £ 3,157.42. The tribunal does not have jurisdiction to entertain the claimant’s claims for notice and holiday pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting such claims and dismisses the claimant’s notice and holiday pay claims.

22. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 5 January 2012, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Connolly v Patrick j Travers t/a Travers ... [2012] NIIT 02604_11IT (31 January 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/02604_11IT.html Cite as: [2012] NIIT 02604_11IT, [2012] NIIT 2604_11IT

Industrial Tribunals Northern Ireland Decisions