THE INDUSTRIAL TRIBUNALS

CASE REF:    87/13   

CLAIMANT:	Seamus Keown  

RESPONDENT:	Department for Employment and Learning

DECISION

(A)	Pursuant to the claimant’s application under Article 205 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), I have determined that the claimant’s former employer, W J McLaughlin and Sons, was liable to pay a redundancy payment to the claimant only in respect of the period from 2 December 2008 until  June 2012.

(B)	For notice pay purposes (under Article 233 of the Order), I declare that the claimant’s notice pay entitlement, if any, should be calculated on the basis that his relevant period of employment began on 2 December 2008. 

Constitution of Tribunal:

Chairman  (Sitting alone):	Mr P Buggy

Appearances:

The claimant was self-represented.

The Department was represented by Mr P Curran.

REASONS

1.	Article 205(1) provides that where, on an application made to the Department, for payment in respect of redundancy, it is claimed that an employer is liable to pay a redundancy payment to an employee, there shall be referred to an industrial tribunal:

		“(a)	…

		 (b)	any question as to the amount of the sum payable …” 

2.	It is agreed between the parties that the claimant worked for W J McLaughlin and Sons (“the Employer”) until June 2012, when he was dismissed by the Employer, and that he then became entitled to a redundancy payment.

3.	Under Article 205, the issue between the parties is about the extent of the claimant’s redundancy pay entitlement.  In its role as the statutory guarantor in respect of certain employer’s debts, the Department made a payment of £846 to the claimant in respect of redundancy.  That payment was calculated on the basis of the Department’s determination that the claimant had been employed by the employer for a continuous period only from 5 October 2009 until June 2012.

4.	However, the claimant asserted that he had commenced employment with the employer on 29 April 2005 and that he had been temporarily laid off three times by the employer (from October 2005 until April 2006, from July 2008 until December 2008, and again from 4 September 2009 until 5 October 2009).

5.	In his oral testimony, the claimant told me that the first two gaps in employment, between October 2005 and April 2006, and between July 2008 and December 2008, were the result of temporary lay-offs.  I did not find his oral testimony on those matters to be convincing.  It was unsupported by any contemporaneous written documentation.  It was out of line with information which had been provided by Ms Eileen McLaughlin, of the Employer (and the claimant was unable to identify any reason why Ms McLaughlin would wish to deliberately mislead anybody in relation to those matters).

6.	Having carefully considered the claimant’s oral testimony, and the documentary evidence in the case, and the claimant’s national insurance contributions record, I rejected the claimant’s contentions in respect of the first two periods of alleged 
“lay-off”.  I was satisfied that neither of those periods of interruption of employment was the result of any temporary lay-off.  Instead, I was satisfied that,  on each relevant occasion, what happened was that the claimant ceased to be employed by the Employer at the beginning of the alleged lay-off period and became employed under a new contract of employment by the Employer at the end of the relevant period.

7.	After hearing the claimant give evidence on oath, and in light of the documentary evidence in this case, Mr Curran conceded that the period from 4 September 2009 until 5 October 2009 should be regarded as constituting a temporary cessation of employment in the context of these proceedings.  That concession was entirely appropriate in light of the evidence which had become available by the time the hearing of this appeal concluded.  As a result of that concession, the claimant’s statutory guarantee redundancy pay entitlement and any notice pay entitlement will be recalculated by the Department, so as to cover a continuous period from December 2008 until June 2012.

8.	Accordingly, the claimant will now receive a small additional payment from the Department in respect of redundancy pay.

Chairman:

Date and place of hearing:    12 February 2013, Belfast.
Date decision recorded in register and issued to parties: