THE INDUSTRIAL TRIBUNALS

CASE REFS:  06818/09 & 06457/09

CLAIMANT:			Paul Clift

RESPONDENT:		Thompson Enterprise Group

DECISION
The decision of the tribunal is that the claimant’s claim for redundancy pay is well-founded and the tribunal orders the respondent to pay to the claimant redundancy pay amounting to £1,680.00.

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr J V Leonard

Appearances:
The claimant appeared and represented himself.
Mr Tom Sheridan of Peninsula Business Services Ltd represented the respondent.

REASONS

 1.	The tribunal heard oral evidence from the claimant and noted the content of the claim forms and the responses thereto.

THE ISSUE

 2.	The course of these claims is somewhat complicated and the tribunal is grateful to the parties for further clarifying the position at hearing.  The matter commenced with the claimant making a claim against the respondent which was assigned by the Office of Tribunals Case Ref No. 241/09. That was a claim for redundancy payment.  However, by letter dated 20 March 2009, the claimant withdrew that claim for redundancy payment against the respondent and a Chairman of Tribunals on 3 April 2009 issued a decision dismissing that claim.  The claimant then made a claim by means of a claim form presented to the Office of Tribunals dated 10 July 2009 which was assigned Case Ref No. 6457/09 and that claim was accepted in part only.  The part of that latter claim accepted related to a complaint of breach of contract (notice pay).  That part of the foregoing claim relating to redundancy pay was rejected for the reason that the claimant had indicated that he had raised the subject matter of the complaint in writing to the respondent on 7 July 2009 but he had not awaited the requisite period of 28 days prior to presenting his claim to the Office of Tribunals.  There was no response to that claim on the part of the respondent.  For convenience, the tribunal will below refer to this latter claim as the “second claim” and to the earlier claim (which was dismissed) as the “first claim”.  The claimant then made a subsequent claim by means of a claim form presented to the Office of Tribunals dated 18 August 2009 which latter was assigned Case Ref No. 6818/09. The tribunal will below refer to this latter claim as the “third claim”. The third claim was accepted in full and consisted of a claim for redundancy pay.  By response form dated 8 October 2009, the respondent resisted the third claim on a number of grounds.  The tribunal does not need to recite the grounds of resistance specifically in this decision for it was subsequently clarified on behalf of the respondent at the hearing of this matter that the respondent did not accept that there was any jurisdictional issue arising from the manner in which the claimant has pursued his claim (the third claim); thus the respondent indicated that the tribunal was quite entitled to exercise its discretion on foot of the statutory grounds which are mentioned below.  Further, in respect of the matter of the claimant’s claim for pay in lieu of notice, the respondent’s representative did concede formally at hearing that that aspect of the claimant’s case was not defended. In the light of the foregoing concessions and clarification, the tribunal had to determine the claimant’s complaints and to deal with the matter of remedy as appropriate.  

THE TRIBUNAL’S FINDINGS OF FACT

 3.	In consequence of the oral and documentary evidence before it the tribunal, on the balance of probabilities, determined the following material facts:-

	(a)	The claimant commenced employment with the respondent upon some (undefined) date in May of 2001.  The claimant was employed as a labourer doing landscaping work.  At the date this employment came to an end the claimant had been employed for seven complete years and he was aged 32. His gross pay was £240.00 and his nett pay was £207.25 each week.

	(b)	Notwithstanding some of the content of the claimant’s second and third claims, noting the oral evidence of the claimant at hearing and the concession as to the facts made by the respondent’s representative, the tribunal makes the following determination. That determination is that, with effect from 14 November 2008, a number of employees were dismissed by the respondent, the employer’s stated reason for such dismissals being redundancy, and amongst these employees was included the claimant.  P45 forms were issued to these dismissed employees at the time of dismissal.  

	(c)	After his dismissal the claimant signed on for Jobseeker’s Allowance. That step was taken by the claimant on 17 November 2008; he did not work thereafter for the respondent.  The claimant commenced in new employment in May 2009. He was still employed in that employment at the time of the tribunal hearing.

	(d)	After the dismissal, the claimant approached his local Citizens’ Advice Bureau and, on advice, he issued a letter dated 28 November 2008 sent to the respondent by recorded delivery postage claiming a redundancy payment.  From the evidence the tribunal noted that there was some doubt as to whether or not that said letter was actually received by the respondent. Some evidence suggested that the letter was returned “not called for” by the Post Office and possibly was not received by the respondent.  However, the claimant then sent a further letter in the same terms to the respondent shortly before Christmas 2008. The tribunal accepts that, if the first letter had not been received, the second letter was indeed safely received by the respondent.

	(e)	Around this time the claimant brought the first claim to the tribunal. However, seemingly on foot of some type of understanding that he would receive further employment with the respondent, the claimant then withdrew the first claim. That first claim, as is mentioned above, was dismissed by a Chairman of Tribunals and therefore it does not concern this tribunal.  The claimant’s expectation of further work did not however materialise. He then brought the second claim. That second claim, as mentioned, was accepted only in part, that part acceptance relating to a claim in respect of notice pay.  He then brought the third claim which was in respect of redundancy pay. That redundancy pay claim, up until the hearing of the matter, was defended by the respondent upon a number of grounds. However, it has now been conceded by the respondent that, if the tribunal assumes to itself jurisdiction to deal with the redundancy pay claim, redundancy pay would fall properly due.  

	(f)	The tribunal did not need to determine any other material facts for the purposes of its decision.  

THE APPLICABLE LAW

 4.	Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that an employer shall pay a redundancy payment to any employee in the event that the employee is dismissed by the employer by reason of redundancy.  Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set forth in Article 174 of the 1996 Order. This provides as follows: “For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to (a) the fact that his employer has ceased or intends to cease (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.” Article 197 of the 1996 Order sets out how the amount of the redundancy payment should be calculated with reference to length of service and age of the employee.  

The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”) provides that an employee may bring a claim for damages for breach of contract of employment or for a sum due under that contract if the claim arises or is outstanding on termination of employment.  Article 7 of the 1994 Order provides that a tribunal shall not entertain such a complaint unless it is presented within a period of three months beginning with the effective date of termination of the contract giving rise to the claim.   Article 7 further provides that where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented in time, it may be presented within such further period as the tribunal considers reasonable.  
The foregoing time limit may be extended in regard to the provisions contained within the Employment (Northern Ireland) Order 2003 ("the 2003 Order") and regulations thereunder. The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”), at Regulation 3 provide for the application of the standard disciplinary and dismissal (and the modified dismissal) procedures, the former being when the employer contemplates dismissing the employee (and the latter post-dismissal). Regulation 4 provides for situations where these statutory procedures do not apply and Regulation 5 provides for situations where the parties are to be treated as complying with these statutory procedures. Regulation 15 of the 2004 Regulations provides that where a complaint is presented to a tribunal under a jurisdiction listed in Schedule 2 or 3 to the 2003 Order (this includes a notice pay claim under the 1994 Order) the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired, but only if the remaining provisions contained within Article 15 are satisfied. These circumstances include the situation where the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise, was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.

THE TRIBUNAL’S DECISION

 5.	Dealing firstly with the redundancy pay claim, applying the law as is stated above, the tribunal notes that the claimant did, as required under Article 199 of the 2006 Order, make a claim for payment of redundancy by notice in writing given to the employer.  Article 199(2) of the 2006 Order provides that an employee is not deprived of his right to redundancy payment if during the period of six months immediately following the period of six months referred to in Article 199(1) he makes a claim for payment by notice in writing given to the employer or refers to an industrial tribunal a question as to his right to, or the amount of, the payment.  For the respondent, Mr Sheridan has very helpfully conceded at hearing that, if the tribunal is satisfied upon the issue of the tribunal’s primary jurisdiction, it would be entitled to exercise the discretion arising from Article 199(3) of the 2006 Order. Here, the test to be satisfied is whether it is just and equitable that the employee should receive a redundancy payment, taking account of the statutory considerations applicable.  In this case, noting the course of the correspondence and of the claims pursued by the claimant in the matter, the tribunal determines that it does have jurisdiction. This is so for the reason that the claim was properly brought by the claimant in accordance with Article 199 of the 2006 Order. In this matter the tribunal exercises its determination upon grounds of justice and equity giving the tribunal proper jurisdiction in the matter.  The tribunal is further satisfied that the facts of the dismissal support the proposition that redundancy was the reason for the dismissal. Accordingly, the tribunal determines that the claim for redundancy pay is well-founded and the tribunal makes an award of redundancy pay as is set out below and the tribunal orders the respondent to pay the redundancy sum set out below to the claimant.  

 6.	In respect of the claim for pay in lieu of notice, although that is not a defended claim on the respondent’s part, the tribunal must nonetheless be satisfied that it has proper jurisdiction.  The pay in lieu of notice claim was brought by the claimant by means of the second claim; indeed it was the only part of the second claim accepted.  However, the employment was terminated on 14 November 2008.  The second claim was not received by the Office of the Tribunals until 10 July 2009.  The statutory procedures of the 2003 Order and 2004 Regulations permit an extension of time under Regulation 15 of the 2004 Regulations. However, in the absence of any other provision being satisfied on the facts, time could only have been extended if the claimant had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise, was being followed in respect of matters that consisted of or included the substance of the tribunal complaint. That could have arisen for example if the claimant had first written a grievance letter referring to the subject matter of this claim, that is to say notice pay.  Looking at the documentation adduced in evidence, the tribunal notes that in the claimant’s said letter dated 28 November 2008 there is no mention made of notice pay. The express grievance stated is merely in respect of redundancy pay.  The tribunal further notes that there is no evidence that any grievance letter was written by or on behalf of the claimant complaining, either expressly or by implication, in respect of non-payment of notice pay.  In any event the original time limit plus any statutory extension would only have extended time to a maximum of six months. Accordingly, the original time limit applies. That time limit is three months from the date of termination of the employment.  At hearing the tribunal questioned the claimant concerning the matter of any proper grounds that might exist upon which the tribunal might find that it had been not reasonably practicable for the claimant to have pursued any complaint in respect of notice pay before the time that that was done. However, no grounds were put forward by the claimant in his evidence or submissions. Thus, there is no proper basis for any extension of time on the “not reasonably practicable” ground.  Accordingly, the tribunal finds that it does not have jurisdiction to deal with the notice pay claim.

 7.	The tribunal’s award is therefore in respect of redundancy pay in this case. The award is as follows:-

Based on the claimant's age and length of service, the appropriate multiplier is 7. Taking account of the weekly wage of £240.00, this produces a figure for redundancy pay as follows:-

7  x  £240.00  =  £1,680.00

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

Chairman:

Date and place of hearing:	12 November 2009, Londonderry.

Date decision recorded in register and issued to parties: