THE INDUSTRIAL TRIBUNALS

CASE REF:	466/12

CLAIMANT:			Kim Coates

RESPONDENT:		Lawrence Wray

DECISION

(A)	The claimant’s claim in respect of wages is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £880 in respect of wages.

(B)	The claimant’s claim in respect of guarantee pay is well-founded.  However, no order for payment of guarantee pay has been made, because I have made an unpaid wages award in respect of the entire period which is within the scope of the guarantee pay claim.

(C)	The claimant’s claim in respect of holiday pay is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £102 in respect of holiday pay.  

(D)	The claimant’s claim in respect of notice pay is well-founded.  It is ordered that the respondent shall pay to the claimant the sum of £70 as damages in respect that claim.  

(E)	The claimant’s redundancy pay claim is well-founded.  It is declared that the respondent is liable to make a redundancy payment of £307 to the claimant.  

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Buggy

Appearances:

The claimant was self-represented.

The respondent was barred from participating in the proceedings, because he had not presented a response.  

REASONS

1.	Although this case was not consolidated with the case of Clements v Lawrence Wray, case reference 467/12, it was agreed by the claimant that evidence in the Clements case (which was heard alongside this case) should be regarded as evidence in this case.   In these proceedings,  the claimant  explicitly makes claims in respect of guarantee pay,  holiday pay,  notice pay and redundancy pay;  and I am satisfied that she must  be regarded as also making  a claim for “ ordinary” pay.

2.	I am satisfied that the background to this case is accurately set out in the “details of claim” which are contained in the claimant’s claim form, in the following terms:

	“On [29 November 2011] both myself and Elizabeth Clements were approached by our employer, Mr Lawrence Wray and [he] told us that we were being put on a temporary lay off from work, effective immediately.  In the weeks leading up to this event we were advised by Mr Wray that we were to be made redundant if incoming payments into the company did not improve.  On 28/11/2011 Mr Wray informed us that as he did not have the cash to enable him to pay us our redundancy he was going to implement a temporary lay off situation in the near future.  When Mr Wray laid us off he wasn’t sure exactly how long we would be out of work but estimated no longer than 6 weeks.  After the 6 week period was up and after seeking advice we handed in our “right to claim redundancy” letters on 28/12/2011.  After getting no response I called to see Mr Wray at the office on 18/1/2012 when he informed me that he couldn’t afford to pay us our redundancy entitlement and that he did not know if or when our jobs would be available again.  On 20/01/12 we then handed in our “notice of termination” letters.  Once again we had no response from Mr Wray. On 15/02/2012 we handed in our grievance letters and Mr Wray contacted me the following day by telephone.  This is the first contact either of us had from Mr Wray since being [laid-off] on 29/11/2011 …”

3.	I am satisfied that the claimant’s claims in respect of wages are well-founded.  I am satisfied that, from 29 November onwards, until the date of termination of the claimant’s employment, the respondent did not pay her the wages which were due to her.  I am also satisfied that she is due wages in respect of a “lying week”.

4.	I am satisfied that the claimant’s claim in respect of holiday pay is well-founded.  I am satisfied that, at the time of the termination of her employment, the claimant was due money in respect of holiday entitlements which had by then accrued, but which had not been availed of.  

5.	I am satisfied that, by persistently failing to pay the claimant’s wages, the respondent dismissed her by reason of his conduct.  (See Powell Duffryn Ltd v House [1974] ICR 123, at 128).  

6.	I am satisfied that the claimant’s employment came to an end of 18 January 2012, when the respondent informed Ms Coates that he couldn’t afford to pay the claimants their redundancy pay entitlement and  that he did not know if or when their jobs would be available again.  

7.	The respondent purported to lay off the claimants, in November 2011, because of the unavailability of work.  However, until November 2011, the claimant and the respondent had never been provided with any written contract of employment.  In November 2011, a written contract was provided to this claimant and to Ms Clements, but that was for the purpose of facilitating their lay-off.  The terms of the written form of contract which was then provided to them had never agreed by either of them.  Accordingly, during all material times, the respondent had no contractual entitlement to lay off either of the claimants.  Accordingly, in both cases, the outcome is that, from 29 November 2011 until 18 January 2012, the respondent was under an obligation to pay the previously agreed wages to both of the claimant, but failed to do so.  

8.	I am satisfied that the claimant’s dismissal took effect on 18 January 2012.  Accordingly, I am satisfied that the claimant was not provided with due notice of the termination of her employment.  

9.	I am satisfied that redundancy was the true reason for the dismissal of the claimant.

10.	The claimant’s wages pay award has been calculated on the basis of gross pay per week.  

11.	The claimant’s holiday pay entitlement has been calculated on the basis of gross wages.

12.	The claimant’s notice pay entitlement has to be calculated so as to provide her with compensation equal to the amount which she actually lost as a result of the failure to provide her with due notice.  Accordingly, in particular, it has to be calculated on the basis of net, as distinct from gross, pay.  

13.	The claimant’s redundancy pay has been calculated on the basis of gross pay.  

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

Chairman:

Date and place of hearing:	7 June 2012, Belfast	

Date decision recorded in register and issued to parties: