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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ferguson v SJ McIntyre Builders Ltd [2012] NIIT 00646_12IT (24 July 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/646_12IT.html Cite as: [2012] NIIT 00646_12IT, [2012] NIIT 646_12IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 646/12
CLAIMANT: Gareth Melvin Ferguson
RESPONDENT: SJ McIntyre Builders Ltd
DECISION
The decision of the tribunal is that the claimant is entitled to a notice payment in the amount of £3624.
Constitution of Tribunal:
Chairman (Sitting alone): Mr S A Crothers
Appearances:
The claimant was present and represented himself.
The respondent was represented by Mr and Mrs McIntyre.
CLAIM
1. The claimant sought an amendment of his claim to include a breach of contract claim for notice pay. The respondent’s correspondence to the tribunal dated 15 May 2012 signed by S J McIntyre, summaries its position as follows:-
“Dear Sirs
Case Ref No: 646/12, 671/12
Re: Gareth Ferguson & Thomas Bradley
I have already agreed Redundancy Payments with the above ex-employees (copy letters enclosed) but I disagree with their Breach of Contract claims.
I admit they did not receive Notice of Redundancy in writing but as I worked with these two men every day and we spoke about the lack of work daily and discussed that none of us would have a job after the July holidays as there was no further work available. They both agreed with this. They knew the situation as they had been laid off for a few weeks prior to Easter. Under these circumstances I kept them employed until after the July Holidays. Most of the time they were more or less killing time but got paid full wages. To me this period of time more than makes up for their 12 weeks Notice. They were both fully aware of this.
I had hoped further jobs would materialise but due to the downturn of the Construction Industry nothing did”.
THE ISSUES
2. The issues before the tribunal were as follows:-
(i) whether the claimant’s claim should be amended to include a breach of contract claim for notice pay; and
(ii) if the answer to Issue (i) is in the affirmative, the amount of notice pay due to the claimant.
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant and, on behalf of the respondent from Mr and Mrs McIntyre, who opposed the claimant’s amendment application. There was also a factual dispute between the parties regarding notice and the notice period. The tribunal also considered relevant documentation in the course of the hearing
FINDINGS OF FACT
4. Having considered the evidence insofar as same was relevant to the amendment issue, the tribunal made the following findings of fact:-
(i) The claimant presented a claim to the tribunal on 4 April 2012 claiming a redundancy payment. The details of claim were as follows:-
“I was made redundant on 14/10/2011 after 23 years working for the same company – S J McIntyre Builders Ltd. I received my P45 a month later backdated to 14/10/2011. I verbally requested redundancy payment in December 2011 but nothing happened. After speaking to the Labour Relations Office I formally requested redundancy payment on 29/03/2012 in writing. I have had no reply as yet.”
Although the claim did not include any specific reference to notice pay, it did include details of the claimant’s dates of commencement and ending of employment (and therefore his length of service with the respondent), together with wages detail including his weekly net wage of £302.00. His effective date of termination of employment was 14 October 2011.
(ii) The claimant e-mailed the tribunal office on 2 May 2012 stating that he wished to add a further claim of 12 weeks pay in lieu of notice to his original claim for a redundancy payment. He also informed the tribunal that he was not aware that he was entitled to a notice payment until after he submitted the claim. The claimant became aware of such a claim following contact with the Labour Relations Agency.
(ii) The respondent wrote to the claimant on 17 April 2012 detailing the amount of the redundancy payment due and stating that payment would be made to him as soon as money was available. On 18 June 2012, the claimant confirmed to the tribunal that he had received a redundancy payment on 13 June 2012.
(iv) The tribunal carefully considered the claimant’s oral evidence together with the evidence provided by Mr and Mrs McIntyre which was largely consistent with the case set out in the response to the claim and in the correspondence to the tribunal referred to at paragraph 1 above.
THE LAW
5. (i) In relation to amendments, a distinction has to be drawn between amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as the original claim; and amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim as pleaded.
(ii) Harvey on Industrial Relations and Employment Law states at T312.04 as follows:-
“It is only in respect of amendments falling into category (iii) – entirely new claims unconnected with the original claim as pleaded – that the time limits will require to be considered. In that situation, the tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made (Selkent Bus Co Ltd –v- Moore [1996] ICR 836 at 843H). In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary, as a matter of construction, to examine the case as set out in the original application to see if it provides the necessary ‘causative link’ with the proposed amendment (see Housing Corpn –v- Bryant [1999] ICR 123, CA)”.
(iii) In determining whether to grant an application to amend, the tribunal must carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that will be caused to the parties by granting or refusing the amendment. These factors include the nature of the amendment, the applicability of time limits and the timing and manner of the application. In determining whether the proposed amendment falls within the existing claim or constitutes an entirely new claim the tribunal must have regard to the whole of the claim form (Ali v Office of Nationalist Statistics (2005) IRLR201). Provided the claim form discloses facts from which, (in this case) a breach of contract claim for notice pay can be discerned, the tribunal is encouraged to adopt a flexible approach.
The tribunal also has to consider whether granting leave to amend would expose the respondent to hardship other than the risk of a decision and a remedy against it.
(iv) Article 118(1) of the Employment Rights (Northern Ireland) Order 1996 provides as follows:-
“The notice required to be given by an employer to terminate the contract of employment of a person who is continuously employed for one month or more - …
(c) is not less than 12 weeks’ notice if his period of continuous employment is 12 years or more”.
(v) Notice of termination by either an employee or notice of dismissal by an employer must be specific. It must specify the date when it is to take effect or at least make it possible for the date to be deduced with certainty for what is said. (Hughes v Gwynedd Area Health Authority (1977) IRLR436EAT). Furthermore, the requirement that the date of termination should be positively ascertainable is not met by a statement that the date of termination is to be some specific date of such earlier date as the employer may select, or such earlier date as the employer may, consistent with his obligation to give requisite notice, select (The Burton Group Ltd v Smith (1977) IRLR351EAT).
CONCLUSIONS
6. Having considered the evidence and applied the principles of law to the Findings of Fact, the tribunal concludes as follows:-
(i) The proposed amendments falls into the second category - an amendment which adds or substitutes a new cause of action but one which is linked to, or arises out of the same facts as the original claim. Time limits do not require to be considered. The tribunal therefore gives leave to the claimant to amend his claim to include a breach of contract claim for notice pay.
(iii) The tribunal is also satisfied that the respondent has not compiled the requirements of Article 118 of the 1996 Order in relation to minimum notice requirements. The tribunal has considerable sympathy with the respondent in the circumstances in which it found itself. Nevertheless, it is satisfied that the claimant is entitled to a notice payment of £302 x 12 = £3624.
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 20 June 2012, Belfast.
Date decision recorded in register and issued to parties:
