THE INDUSTRIAL TRIBUNALS  

CASE REF:      2823/11

CLAIMANT:	Philip Ross

RESPONDENT:	Department for Employment and Learning

DECISION

The decision of the tribunal is that the claimant was entitled to receive a redundancy payment of £1,389.20 on termination of his employment  and that the respondent ought to make the claimant a payment under Article 227 of the Employment Rights (Northern Ireland Order) 1996 of £852.60 in respect of notice pay, £227.36 in respect of arrears of pay and £284.20 in respect of holiday pay.

Constitution of Tribunal:

Chairman (Sitting Alone):	Ms M Bell

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr P Curran of the Department for Employment and Learning, Redundancy Payments Service.

1.	The claimant in his claim sought a redundancy payment, notice pay of £1,234.84, holiday pay of £370.45 and arrears of pay of £617.42.

2.	The respondent in its response resisted the claimant’s claim on the basis that it had been unable to obtain documentary evidence to verify the claimant’s application and so had no option but to reject it.

ISSUES

3.	The issues before the tribunal were: 

•	Whether the claimant’s employer was liable to pay a redundancy payment to the claimant?  If so, how much?

•	Whether the respondent ought to make a payment under Article 227 of the Employment Rights (Northern Ireland Order) 1996 to the claimant in respect of arrears of pay, notice and holiday pay?  If so, how much?

EVIDENCE

4.	The tribunal considered the claim form, response, documentation from the claimant and respondent, heard the claimant’s oral evidence and submissions from Mr Curran.

FINDINGS OF FACT

5.	The claimant was born on 27 October 1963.  He was employed from September 2007 by John Hoey, transport provider to work five days per week as a courier and was paid £308.71 gross per week, being £284.20 net.

6.	The claimant was not paid wages by the respondent due to him for ten days worked in the two weeks between 16 and 29 March 2011.

7.	The respondent was declared bankrupt on 21 March 2011.

8.	The appropriate date for pay arrears and holiday pay is 21 March 2011.

9.	The claimant was under the impression that the respondent’s business was going to be taken over and that his job was safe and continued to work on until he received a telephone call on 13 April 2011 informing him that the liquidators were coming the next day to take away the respondent’s vans and lorries and so the claimant finished working on 14 April 2011.

10.	No payment was made to the respondent on termination of his employment in respect of redundancy, arrears of pay, notice and leave accrued due but not taken.

11.	The claimant was entitled to 28 days holiday per annum and his holiday year commenced on 5 April each year.  At the date of the employer’s bankruptcy the claimant had taken 22 days holiday since 5 April 2010.

THE LAW

12.	Article 170 of The Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy.

13.	An employee may apply under Article 201 of the 1996 Order to the Department for Employment and Learning for Northern Ireland for a redundancy payment in circumstances including where the employer is insolvent and any question as to the employer’s liability to pay or amount shall be referred to an industrial tribunal under Article 205.  Article 205 (2) provides for the purposes of any reference under the Article there is a presumption that the reason for dismissal was redundancy unless the contrary is proved.

14.	Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.

15.	Under Article 118B of the Employment Rights (Northern Ireland) Order 1996 an Employer is required to give minimum notice to terminate the contract of employment of a person of not less than one weeks’ notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

16.	The Department for Employment and Learning for Northern Ireland has a role as Statutory Guarantor in making payments to employees in respect of unpaid debts owed to them in their capacity as an employee, if the employer cannot or will not pay these debts.  Subject to the conditions set out in Article 227 of the 1996 Order the Department shall subject to limits set out, pay the employee out of the Northern Ireland National Insurance Fund the amount to which, in the opinion of the Department, the employee is entitled in respect of the debt.  Applicable debts include under Article 229(1) not more than eight weeks arrears of pay, statutory minimum notice pay, and, not more than 6 weeks holiday pay for holidays due in the twelve months ending with the appropriate date.  Article 230 provides that the appropriate date for pay arrears and holiday pay is the date the employer became insolvent.  A complaint may be presented to an industrial tribunal under Article 233 where the Department has failed to make a payment under Article 227.

APPLYING THE LAW TO THE FACTS FOUND

17.	On consideration of all the evidence before it the tribunal is satisfied as follows:-

	REDUNDANCY PAYMENT

	The reason for the claimant’s dismissal was redundancy.  At the date of the employer’s bankruptcy the claimant had been employed for three complete years during which he was aged more than 41 years of age.  The tribunal finds that the employer was liable to pay the claimant a redundancy payment calculated in accordance with Article 197 as follows:-

	£308.71 x 3 x 1.5 = £ 1,389.20 

	NOTICE

	The claimant was entitled to statutory minimum notice of three weeks from his employer, the respondent ought to pay the claimant under Article 227 three weeks net pay in lieu thereof, being £852.60.

	ARREARS OF PAY

	Up to the appropriate date, that is, the employer’s date of bankruptcy on 21 March 2011, there were 4 days pay outstanding to the claimant from his employer.  The respondent ought to pay the claimant £227.36 in respect of arrears of pay under Article 227.

	HOLIDAYS

	Up to the appropriate date, the claimant’s pro rata holiday entitlement from 5 April 2010 was 27 days; the claimant had taken 22 days holiday leaving a balance of 5 days holiday pay due.  The respondent ought to pay the claimant £284.20 in respect of holiday pay under Article 227.

CONCLUSION

18.	The decision of the tribunal is that the claimant was entitled to receive a redundancy payment of £1,389.20 on termination of his employment and that the respondent ought to make the claimant a payment under Article 227 of the Employment Rights (Northern Ireland Order) 1996 of £852.60 in respect of notice pay, £227.36 arrears of pay and £284.20 holiday pay.

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

Chairman:

Date and place of hearing:         7 February 2012, Belfast.

Date decision recorded in register and issued to parties: