THE INDUSTRIAL TRIBUNALS

CASE REF:  5867/09
5218/09

CLAIMANT:			Eileen Hill 

RESPONDENTS:		1.  D McAuley & Sons (Tiles & Taranzo) Ltd
				2.  Department for Employment & Learning

DECISION
The decision of the tribunal is that:-

	(a)	the claimant is entitled to a redundancy payment of £5,261.58;

	(b)	the claimant is entitled to unpaid wages of £478.12;

	(c)	the claimant is entitled to holiday pay of £119.53;

	(d)	the claimant is entitled to notice pay of £2,127.52.

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

Appearances:

The claimant was represented by D Carson LLB.

The first respondent was not represented and did not appear.

The second respondent was represented by Mrs Baird, of Department for Employment & Learning.

Facts
1.	The claimant is 59 years of age.  She was employed by the first respondent from 3 February 1997 to 12 February 2009 when she was dismissed with immediate effect because of the financial difficulties faced by the first respondent.  The first respondent has ceased trading, but has not been made insolvent within the terms of the Employment Rights (Northern Ireland) Order 1996.

2.	No dismissal procedure was followed by the first respondent.  The claimant was asked to leave the business premises on 12 February 2009 so that they could be locked up.

3.	At the date of dismissal the claimant’s gross monthly wage was £1,266.66 which equates to a weekly gross wage of £292.31 and her net monthly wage was £1,035.91 which equates to a weekly net wage of £239.06.

4.	The claimant makes claims for redundancy payment, unpaid wages, holiday pay and notice pay.  She is owed 10 days’ wages and 2½ days’ holiday pay.  She received Jobseeker’s Allowance of £60.50 from 13 February 2009 to 8 April 2009 and £64.30 per week thereafter.  She did not obtain new employment.   

5.	After hearing the evidence of the claimant the tribunal is satisfied her claims are well founded.  The tribunal makes the following awards.

Redundancy Pay

6.	The claimant is entitled to 18 weeks redundancy pay based on her gross weekly wage of £292.31.  The claimant is therefore entitled to £5,261.58 in respect of redundancy pay.

Unpaid Wages

7.	The claimant is entitled to 10 days’ wages.  This entitlement is based on her net weekly wage of £239.06.  The claimant is entitled to £478.12 in respect of unpaid wages.

Holiday Pay

8.	The claimant is entitled 2½ days’ holiday pay.  This is based on her net weekly wage.  The claimant is therefore entitled to £119.53 in respect of holiday pay.

Notice Pay

9.	The claimant is entitled to 12 weeks’ notice pay, based on her net weekly wage, of £2,868.72.  From this must be deducted the Jobseekers Allowance she received during the notice period in the sum of £741.20.  The claimant is therefore entitled to £2,127.52 in respect of notice pay.

10.	The claimant sought payment of the outstanding monies from Department for Employment & Learning (DEL).  DEL refused the application.  The Department has no liability for claims for unpaid wages, holiday pay or notice pay where the employer is not legally insolvent as defined in Article 228 of the 1996 Order.  The employer in this case is not legally solvent as defined in Article 228 and DEL has no liability unless and until the employer becomes insolvent.

11.	The claimant has a separate entitlement to seek redundancy payments from DEL if the employer is either legally insolvent or the claimant has taken all reasonable steps to recover the payment from the employer (Article 201 of the 1996 Order).  	In accordance with the provisions of Article 205 of the 1996 Order, the tribunal has determined the liability of the employer to pay the redundancy payment, and the tribunal declare that the amount payable under Article 203 of the 1996 Order is £5,261.58.

Interest

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

Chairman:

Date and place of hearing:  11 December 2009, Belfast  

Date decision recorded in register and issued to parties: