THE INDUSTRIAL TRIBUNALS

CASE REF:  6635/09

CLAIMANT:			Frank Maguire

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

DECISION
The unanimous decision of the tribunal is that:-

	(a)	the claimant is entitled to a redundancy payment of £1,313.52;

	(b)	the claimant is entitled to unpaid wages of £466.67;

	(c)	the claimant is entitled to holiday pay of £129.63;

	(d)	the claimant is entitled to notice pay of £779.84;

	(e)	the claimant was unfairly dismissed.  No award of compensation was made. 

Constitution of Tribunal:
Chairman:		Mr. P Kinney
Members:		Ms. V Walker

			Mr. M Grant

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 37 years of age.  He was employed by the first respondent from 19 July 2004 to 12 February 2009 when he 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 weekly wage was £328.38 and his net weekly wage was £259.26.

4.	The claimant makes claims for redundancy payment, unfair dismissal, unpaid wages, holiday pay and notice pay.  He is owed 9 days’ wages and 2½ days’ holiday pay.  He received Jobseeker’s Allowance of £64.30 per week.  He did not obtain new employment.  The claimant makes no claim for a compensatory payment in respect of his claim for unfair dismissal.  

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

Redundancy Pay

6.	The claimant is entitled to 4 weeks redundancy pay based on his gross weekly wage of £328.38.  The claimant is therefore entitled to £1,313.52 in respect of redundancy pay.

Unfair Dismissal 

7.	By virtue of Article 130A of the Employment Rights (Northern Ireland) Order 1996, a dismissal is automatically unfair if a statutory disciplinary or dismissal procedure applies to it, the procedure has not been completed and non completion of the procedure is wholly or mainly attributable to failure by the employer.  In this case the statutory dismissal procedure did apply and the tribunal finds that non completion is attributable to failure by the employer.  The claimant’s claim for unfair dismissal is well-founded.  However, the claimant makes no claim for compensatory award and from the basic award must be deducted any award for redundancy payment made by the tribunal in respect of the same dismissal (Article 156(4) of the 1996 Order).  The net effect of this calculation is that, as the redundancy payment and the basic award are at the same figure, the tribunal makes a basic award of nil to the claimant.  

Unpaid Wages

8.	The claimant is entitled to 9 days’ wages.  This entitlement is based on his net weekly wage of £259.26.  The claimant is entitled to £466.67 in respect of unpaid wages.

Holiday Pay

9.	The claimant is entitled 2½ days’ holiday pay.  This is based on his net weekly wage.  The claimant is therefore entitled to £129.63 in respect of holiday pay.

Notice Pay

10.	The claimant is entitled to 4 weeks’ notice pay, based on his net weekly wage, of £1,037.04.  From this must be deducted the Jobseekers Allowance he received during the notice period in the sum of £257.20.  The claimant is therefore entitled to £779.84 in respect of notice pay.

11.	The claimant sought payment of the outstanding monies from Department for Employment & Learning (DEL).  DEL refused the application.  DEL has no liability for claims for unfair dismissal, 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.

12.	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 £1,313.52.

Interest

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

Chairman:

Date and place of hearing:  9 December 2009, Belfast  

Date decision recorded in register and issued to parties: