THE INDUSTRIAL TRIBUNALS

CASE REF:	6123/09

CLAIMANT:			Terrie Dalzell

RESPONDENT:	Department for Employment and Learning for Northern Ireland

DECISION
The decision of the tribunal is that:
(A)	Upon the termination of the claimant’s employment at Bingham Lane, Bangor, Co. Down, RV Enterprises Ltd or Ratz Ltd was liable to pay to him a redundancy payment amounting to £1,020; and £1,020 is payable to the claimant, by the Department for Employment and Learning, pursuant to Article 203 of the Employment  Rights Order.
(B)	The claimant’s complaint in respect of the refusal of the Department to make payments under Article 227 of the Employment Rights Order (in respect of certain employment debts) is not well founded and therefore has to be dismissed.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Buggy

Appearances:

The claimant was represented by Mr L Cree, MLA.

The respondent was represented by Mr P Curran of the Department’s Employment Relations Operations Support Section.

1.	I am grateful to Mr Cree and to Mr Curran for the representations that they have made, and for the pragmatic spirit in which those representations have been put forward.

2.	I had the benefit of receiving sworn testimony from the claimant in this case.  I am satisfied that the evidence which he gave was true to the best of his knowledge, information and belief.
 
3.	 These proceedings included a complaint in respect of the refusal of the Department for Employment and Learning (“the Department”) to make a payment to the claimant pursuant to Article 227 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”). As Mr Cree realistically recognised, the Department’s refusal to make an Article 227 payment, (in respect of unpaid wages, holiday pay and pay in lieu of notice) has to be regarded as being legally correct, because the entity which employed the claimant at the time of his dismissal has not become “insolvent” within the meaning of Article 228 of the Employment Rights (Northern Ireland) Order 1996.

4.	However, in these proceedings, the claimant has also referred to the tribunal the question of whether or not the Department was right to refuse his application for an Article 201 payment.  (Article 201 of the 1996 Order provides that, where an employee claims that his employer is liable to pay to him a redundancy payment and that the employee has taken all reasonable steps, other than court proceedings, to recover the payment from the employer and that the employer has refused or failed to pay it, then the employee may apply to the Department for a payment under that Article.

5.	The claimant had been employed as a kitchen porter at Ratz Restaurant, Bingham Lane, Bangor between 23 May 2005 and October 2008.  He was born in the Spring of 1965.  At all material times, the person running the restaurant was Mr Ralph McNally.  At times which are material for present purposes, Mr McNally was the owner, director, and controlling force in relation to two limited companies, RV Enterprises Ltd and Ratz Ltd.

6.	At one time during the claimant’s employment, the claimant was certainly employed by RV Enterprises Ltd, because I have seen written particulars of employment  to that effect.  There is an issue as to whether subsequently he became an employee of Ratz Ltd instead (because, although RV Enterprises Ltd handled his National Insurance during the tax year 2006/2007, Ratz Ltd handled the National Insurance during the tax year 2007/2008).  Who was the claimant’s employer in 2007/2008?  I tend towards the view that he was  then still employed by RV Enterprises Ltd, because I have not been shown any documentation, which had been presented in 2007/08 to the claimant, and which demonstrated that there was then going to be a formal change of employer. (The change in the allocation of responsibility for National Insurance payments may simply have been a tactical or financial decision by Mr McNally, as distinct from constituting an effective transfer of employer). 

7.	However, for the purpose of determining this reference, I do not have to make a definitive determination on that question.  (If the question becomes central at some later date, the Department can seek a definitive determination from an industrial tribunal at that later time).

8.	For present purposes, I do not have to make a definitive determination on that question because I am satisfied that, even if the claimant’s employment changed from being employment with RV Enterprises to being employment with Ratz Ltd,  the claimant’s entitlement to a redundancy payment was unaffected (because there  was  a TUPE transfer, or because the claimant’s continuity of employment was preserved by virtue of Article 14(6) of the Order).

9.	The claimant was dismissed because the business closed down.  Therefore he was dismissed because of redundancy.  His continuity of service exceeded a period of two years.  Therefore, he was entitled to a redundancy payment from the employer who dismissed him. He has made considerable efforts to pursue Mr McNally, and to Mr McNally’s companies, for the relevant debt, without success.

10.	It was agreed between the parties that the amount of any entitlement to a redundancy payment is £1,020.  This is based on a gross weekly salary of approximately £255.

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

Chairman:

Date and place of hearing:		6 October 2009, Belfast.

Date decision recorded in register and issued to parties: