9_09IT
Hawthorne v McNeill-McManus Glass Ltd [2009] NIIT 9_09IT (19 March 2009)
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THE
INDUSTRIAL TRIBUNALS
CASE REF: 9/09
CLAIMANT: William James Hawthorne
RESPONDENT: McNeill-McManus Glass
Limited
DECISION
The
unanimous decision of the tribunal is that the claimant is entitled
to a redundancy payment as calculated in the following decision:-
Constitution
of Tribunal:
Chairman: Mr
Cross (sitting alone)
Appearances:
The claimant appeared in person and
was not represented.
The respondent did not appear and was
not represented.
Findings of Fact
1. In
the absence of any representation from the respondent, I make the
following findings of fact after listening to the evidence of the
claimant and reading a lengthy letter dated 6 November 2008 from the
Managing Director of the respondent, Mr McNeill. I am informed that
the respondent is now in administration; the Joint Administrators
having been appointed on 12 January 2009.
2. The
claimant was born on 13 February 1957 and was employed by the
respondent from 8 April 1989 to 28 July 2008. His place of work was
Londonderry, where he lived. His gross weekly wage was £585.46.
3.
The Respondent’s Londonderry plant was closed on 28 February
with all the employees being made redundant. Shortly before closure
the claimant agreed with the respondent that he would not take
immediate redundancy but would facilitate the company by relocating
on a temporary basis to the respondent’s other plant at
Mallusk. This entailed a daily round trip of about 150 miles. The
claimant stated that he would do this for a short time to facilitate
his employer of 19 years and to assist with the transfer of the
business to Mallusk. He was assured by the directors of the
respondent that this arrangement would be for a short period and that
it would not effect his entitlement to a redundancy payment. Had he
not agreed to this arrangement he would have been made redundant with
the other employees at the Londonderry plant.
4. Having
worked at Mallusk for some 3 months the claimant found that the
travel each day was having an adverse effect on his health and he
asked the respondent to release him from the arrangement. After some
discussion the respondent prevailed upon the claimant to remain at
Mallusk until the end of July to complete staff training. The
respondent’s managing director assured the claimant that his
redundancy payment would be “sorted out”. The claimant
finally left the respondent’s employment on 28 July 2008. There
was no written evidence of the temporary move of the claimant to
Mallusk or the arrangements for the payment of the redundancy payment
at the end of the period. In the letter of 6 November 2008, from the
respondent to the claimant, the respondent states that there was no
question of redundancy, as an alternative role would have been found
for the claimant at Mallusk. However having heard the evidence of the
claimant, who stated that the short term arrangement at Mallusk was
to assist the respondent with relocation of the business and training
for a short period, having regard to the travel involved, I am
satisfied that an arrangement was made that he would do the Mallusk
job for a short time and on its completion the respondent would pay
to him his redundancy entitlement.
The Law
Article
174 of The Employment Rights (Northern Ireland) Order 1996 states
that an employee shall be taken to be dismissed for the purposes of
redundancy, if, (inter alia), his employer intends to cease carrying
on business at the place where the employee was employed. Article
171 of the Order defines dismissal of the employee. For the purposes
of this case the relevant part of the Article is I71 (1) b, which
states that an employee is dismissed by his employer if :-
“(b)
he is employed under a limited-term contract and that contract
terminates by virtue of the limiting event without being renewed.”
The
definition of a limited-term contract in the Order is a contract
where:-
“(a)
the employment under the contract is not intended to be permanent,
and
(b)
provision is accordingly made in the contract for it to terminate by
virtue of a limiting event.”
A
“limiting event” is further defined, in the context of
this case, as, “in the case of a contract made in contemplation
of the performance of a specific task, the performance of the task.”
Decision
6. I
hold that the respondent and the claimant came to a mutual decision
to continue the claimant’s employment with the respondent after
the closure of the Londonderry plant, on a limited-term contract that
continued from the date that the remainder of the workforce was made
redundant. This verbal agreement was to last for a term until the
claimant had completed the task of assisting in the relocation of the
Londonderry part of the business to Mallusk and whatever retraining
was required. When these tasks were concluded, the claimant would
leave the respondent’s employment and it was agreed that he
would be paid his appropriate redundancy payment. Accordingly I award
the claimant the sum of £7920.00, made up as follows:-
Maximum
amount of a weeks pay as laid down by the Employment Rights (Increase
of Limits) Order (Northern Ireland) 2008 £330.00
Claimant aged 51 years.
Thus
10 years @ 1½ weeks pay = £495.00 per year
9 years @ 1 week pay = £330.00 per year
Total redundancy payment 10 x
£495 = £4,950.00
9
x £330 = £2,970.00
TOTAL £7,920.00
Appropriate
redundancy payment £7,920.00
This
is a relevant decision for the purposes of the Industrial Tribunals
(Interest) Order (Northern Ireland) 1990.
Chairman:
Date
and place of hearing: 18 February 2009, Belfast
Date
decision recorded in register and issued to parties:
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