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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Devine v Abbey Insulation Services Sean Heaney Patrick Heaney Seamus Heaney [2011] NIIT 01182_11IT (06 September 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/1182_11IT.html |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1182/11
CLAIMANT: Darren Devine
RESPONDENTS: 1. Abbey Insulation Services
2. Sean Heaney
3. Patrick Heaney
4. Seamus Heaney
DECISION
The decision of the tribunal is that the claimant is entitled to £77.08 for arrears of pay, £703.14 redundancy payment and £770.76 notice pay, totalling £1,550.98.
Constitution of Tribunal:
Chairman (sitting alone): Mr S A Crothers
Appearances:
The claimant appeared and represented himself.
The respondents did not appear and were not represented. The third-named respondent had presented a response to the tribunal.
Title
1. The title of the respondents is amended to that shown above.
Claim
2. The claimant claimed that he had not received a redundancy payment or a notice payment. He also claimed for two days’ arrears of wages. The response presented to the tribunal indicated that the respondents would not be resisting the claim and would not be attending the hearing.
The Issues
3. The issues before the tribunal were as follows:-
(1) Whether the claimant is entitled to a sum in respect of notice pay and two days’ arrears of wages.
(2) Whether the claimant is entitled to a redundancy payment.
Sources of Evidence
4. The tribunal heard evidence from the claimant and considered relevant documentation in the course of the hearing, including the response presented to the tribunal by the third-named respondent.
Findings of Fact
5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i)
The claimant commenced employment
with the first-named respondent on
25 January 2006 until 24 January 2011, being the effective date of termination
of his employment.
(ii) The tribunal is satisfied that the second, third and fourth-named respondents operated Abbey Insulation Services in partnership.
(iii)
The tribunal is satisfied that
the claimant was made redundant by the first-named respondent and that he did
not receive a redundancy payment or notice pay. In addition he is owed wages
for 21 January 2011 and
24 January 2011.
(iv) The claimant’s date of birth is 29 February 1988. His gross weekly wage was £230.38 per week, £192.69 net.
(v)
The claimant presented his claim
to the tribunal on 17 May 2011.
(vi)
Subsequent to 24 January 2011 the
claimant was unsure as to whether or not the respondents were insolvent.
Having spoken to another employee on 20 March 2011 he was given
advice to apply for redundancy. The claimant then applied to the Department
for Employment and Learning who, after investigation, declined his application
in correspondence of 12 April 2011. That correspondence referred to a tribunal
claim being made. The claimant visited the Jobs and Benefits Office and was
given a claim form together with a booklet which wrongly stated the tribunal
address as being at
Waring Street, Belfast. The claimant had signed his claim form on
4 May 2011. It was returned to him by the Post Office. He then presumably visited
what he thought was the tribunal address at Waring Street and was told the
correct location of the tribunal. He then visited the tribunal office and
presented his claim on 17 May 2011.
The Law
6. (i) Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-
“170. - (1) An employer shall pay a redundancy payment to any employee of his if the employee:-
a. Is dismissed by the employer by reason of redundancy, …
(2) Paragraph (1) has effect subject to the following provisions of this Part (including, in particular, Articles 175 - 179, 184 - 187, 190 - 196 and 199).”
(ii) Article 180(5) of the Order provides as follows:-
“Where -
a. the contract of employment is terminated by the employer;
b. the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as defined by the previous provisions of this Article).
For the purposes of Articles 23(3), 190 and 197(1) the later date is the relevant date.”
(iii) Article 180(6) provides that “the material date” means the date when notice of termination was given by the employer, or where no notice was given, the date when the contract of employment was terminated by the employer.
(iv) Article 197
of the Order provides for the amount of redundancy payment.
(v) The tribunal also considered the provisions of the Order relating to unlawful deductions from wages.
(vi) The provisions in relation to breach of contract are contained in the Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”). Under this Order an employee can bring a breach of contract claim in respect of a number of matters outstanding on the termination of his employment. This can include a claim for a lying week or notice pay and, (where not otherwise governed by the unlawful deduction from wages jurisdiction in the Order), for arrears of pay.
(vii) Article 7 of the 1994 Order states as follows:-
“An Industrial Tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented –
(a)
within the period of three months
beginning with the effective date of termination of the contract giving rise to
the claim; or
(b) why there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated; or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable”.
Conclusions
7. Having applied the relevant principles of law to the findings of fact the tribunal concludes that the claimant is entitled to three weeks’ redundancy pay (£234.38 x 3) = £703.14. The tribunal is satisfied that time should be extended under Article 7 of the 1994 Order and the claimant is therefore entitled to four weeks’ notice pay (£192.69 x 4) = £770.76. He is also entitled to £77.08 for arrears of pay.
8. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 July 2011 and 26 August 2011, Belfast.
Date decision recorded in register and issued to parties: