THE INDUSTRIAL TRIBUNALS                        

CASE REF:    437/11            

   
CLAIMANT:	Linda Clarke

RESPONDENTS:	1.	Firecrest Compartmentation Ltd
	2.	Terence Crawford
	3.	Joseph Laverty
	4.	Firecrest (NI) Ltd
	5.	Department for Employment and Learning

DECISION

(A)	None of the claimant’s claims against Firecrest Compartmentation Ltd (“Compartmentation”), or against Mr Crawford, or against Mr Laverty, is well-founded.  Accordingly, all of those claims, against all of those respondents, are dismissed.

(B)	The claimant’s claim against NI in respect of holiday pay is well-founded and it is ordered that NI shall pay to the claimant the sum of £480 in respect of holiday pay.

(D)	The claimant's claim against NI in respect of notice pay is well-founded and it is ordered that NI shall pay to the claimant the sum of £3,804 in respect of notice pay.

Constitution of Tribunal:

Chairman  (Sitting alone):	Mr P Buggy

Appearances:

The claimant was self-represented.

Compartmentation, Mr Crawford and Mr Lavery were all debarred from participating in the proceedings, because none of them had presented any response in these proceedings.

NI was not represented at this hearing.

The Department for Employment and Learning (“the Department”) was not represented at this hearing.

REASONS

1.	In the course of the 18 April hearing, I announced my decision.  At the same time, I gave reasons for that decision.  Accordingly, what follows is by way of summary only.

2.	This claimant is one of a number of claimants who are making pending claims, against Compartmentation and/or against NI, in respect of employment debts.

3.	In these proceedings, the claimant made a claim against Compartmentation and against NI, and against Mr Crawford and Mr Lavery, in respect of a redundancy payment.  She also sought a declaration, pursuant to Article 205 of the Employment Rights (NI) Order 1996 (“the 1996 Order”), that one of those respondents had become liable to make a redundancy payment to her in October 2010. Those particular claims, and that particular application, were the subject of a hearing on 3 October 2011.  The outcomes of that hearing were as follows:

	(1)	I decided that the claimant's redundancy payment claim against Compartmentation was not well-founded.

	(2)	I decided that the claimant's redundancy pay claim against NI was 
well-founded.

	(3)	I decided, pursuant to Article 205 of the 1996 Order, that NI had become liable to make a redundancy payment to the claimant.

4.	This is my decision in respect of the claims which were the subject of adjudication during the hearing which was held on 18 April 2012.

5.	During the course of this hearing, this claimant told me that the only claims which she now wishes to pursue against an employer are claims in respect of holiday pay and notice pay.

6.	The claimant recognises that she currently cannot make any successful appeal against the Department’s refusal (in its role as the statutory guarantor in respect of employment debts) to make payments in relation to the claimant’s holiday pay and notice pay claims, because of the current insolvency position.  (The current insolvency position is that NI is not “insolvent”, in the sense in which the term “insolvent” is used in the context of the statutory guarantee legislation).

7.	Accordingly, the focus of these proceedings was on the remaining claims which the claimant wishes to make against the employer.  As already noted above, those claims are claims for holiday pay and notice pay.

8.	The claimant gave evidence on oath.

9.	During the course of his oral testimony, the claimant confirmed that the facts stated in the Morgan/Martin cases (Case Ref: 2769/10 and Others) were, to the best of her knowledge, true.

10.	I am satisfied that, during the autumn of 2010, a “TUPE” transfer occurred, in respect of the entity to which the claimant was assigned at the time of that transfer. I am satisfied that the entity was transferred, by that transfer, from Compartmentation to NI.

11.	The amount of the claimant’s holiday pay award is calculated on the basis of gross pay.

12.	The award in respect of notice pay has been calculated on the basis of the following:

	(1)	The amount of net wages, which the claimant would have received if he had been given due notice, has been calculated;

	(2)	From that amount, I have not deducted any amount in respect of Job Seekers Allowance, because (on the basis of the claimant’s testimony) I am satisfied that she was not entitled to receive any JSA in respect of the notice period, and that she received none.

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

Chairman:

Date and place of hearing:       18 April 2012, Belfast.

Date decision recorded in register and issued to parties: