Getty v Foster [2005] NIIT 2139_04 (12 October 2005)


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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Getty v Foster [2005] NIIT 2139_04 (12 October 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2005/2139_04.html
Cite as: [2005] NIIT 2139_4, [2005] NIIT 2139_04

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 2139/04

    CLAIMANT: Jonathan Getty

    RESPONDENT: Hudson Foster

    DECISION

    The unanimous decision of the tribunal is that the tribunal finds the claimant's complaint well-founded and Orders the respondent to pay to the claimant the total sum of £2,490.00 in respect of redundancy pay and unpaid wages.

    Constitution of Tribunal:

    Chairman: Mr J V Leonard

    Panel Members: Mr S Craig

    Mr R Lowden

    Appearances:

    The claimant appeared in person and represented himself.

    The respondent did not attend and was not represented.

    REASONS

  1. Reasons are given in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter. The tribunal heard oral evidence from the claimant and also evidence from fellow former employees of the respondent, Mr McNally and Mr Patterson (both of whom were also bringing similar claims), and the tribunal further examined documentation placed before the tribunal in evidence by or on behalf of the claimant.

  2. In his Originating Application, the claimant complained of "Redundancy payment. Lying week. Holiday pay". In a Notice of Appearance, the respondent denied that the claimant had been dismissed. The respondent confirmed that the claimant had been employed by him and that the dates of employment stated by the claimant were correct. The respondent also enclosed documentation which he stated consisted of wages records applicable to the claimant. The respondent, further, stated reasons for resisting the claim on the part of the claimant.

    3. THE ISSUES

  3. In the light of the nature and content of the claimant's complaint and the response thereto and the evidence before the tribunal, the tribunal had to determine the claimant's complaint as set forth in his Originating Application, and as further detailed in the course of hearing before the tribunal.

    4. THE TRIBUNAL'S FINDINGS

  4. On foot of the oral and documentary evidence adduced before it, the tribunal made the findings of fact set out below.

    5. (a) The claimant first began work with the respondent in or about December of 1993. The claimant commenced as an apprentice electrician under the modern apprenticeship scheme with a view to the claimant attaining a National Vocation Qualification, Level 3, under the Jobskills Programme sponsored by the Training & Employment Agency, that being under the auspices of the Department of Economic Development.
    (b) The claimant remained under the apprenticeship scheme until he qualified as an electrician. There were incremental annual wage increases in respect of the wage rate paid by the respondent to the claimant which, by the date employment of the claimant by the respondent came to an end, were linked to wage rates set by the "JIB Determination" (for the relevant year) of the Joint Industry Board for the Electrical Contracting Industry.
    (c) There were no written terms and conditions of employment seen by the tribunal and nothing save for oral evidence and some documentation in respect of wages as to the precise contractual terms applicable at the time when the claimant's employment came to an end. The tribunal did however without any difficulty accept the claimant's evidence that it was custom and practice for employees of the respondent to work a 'lying week' either (and normally) at the start of employment, or at some other point in employment, and for payment of wages for that week to be deferred until the end of the employment. The tribunal did also accept that the claimant's employment attracted an agreed twenty-nine days' leave with pay annually.
    (d) On Friday 21 May 2004 the claimant was orally informed by the respondent that there was no further work for him and that he was not to return to work on Monday 24 May 2004. The claimant received his wages until the end of that week, Friday 21 May 2004, and that is the effective date of termination. The employment was terminated by the respondent as he was in the process of ceasing business, so the tribunal understands, for financial reasons.
    (e) The claimant's date of birth is 20 February 1977 and at the effective date of termination of the employment he had served ten years' continuous employment at which time he was aged twenty-seven years.
    (f) The tribunal inspected various documents in an endeavour to determine gross and net pay in respect of the claimant's employment by the respondent. There was inconsistent evidence available from the P60, the claimant's bank statements, and from the information contained in correspondence and documentation received by the Office of the Tribunals from the respondent. Looking at all of the evidence and trying to reconcile it as far as possible, the tribunal found that at the material time, the effective date of termination, the claimant's gross pay was £360.00 per week and his net pay was £300.00 per week.

    (g) At the effective date of termination the claimant was owed one week's pay in respect of untaken holiday leave. He was also owed one week's pay in respect of the lying week, worked but unpaid.

    THE APPLICABLE LAW

  5. In respect of the applicable law, the claimant's first complaint was in respect of redundancy payment. A redundancy is defined in Article 174 of the Employment Rights (Northern Ireland) Order 1996 which Article states:

    6. 174-(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reasons of redundancy if the dismissal is wholly or mainly attributable to:-

    (a) The fact that his employer has ceased or intends to cease - (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or

    (b) The fact that the requirements of that business - (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish

    Any redundancy payment award is subject to calculation based on a statutory maximum figure for a week's pay. In regard to this case, that is a figure of £270.00.

  6. . The claimant also complained to the tribunal of non-payment of wages due upon termination of employment. Article 45(3) of the Employment Rights (Northern Ireland) Order 1996 provides that any deficiency in wages due is to be treated as a deduction made by the employer. Under Article 55(1)(a) of the Employment Rights (Northern Ireland) Order 1996, the tribunal may find such a complaint well-founded and, on foot of Article 56 of the said Order, may order the respondent to pay to the claimant the amount of any deduction made in contravention of Article 45 of the said Order.

    7. THE TRIBUNAL'S DETERMINATION

  7. Having applied the relevant principles of law contained in the foregoing statutory provisions to the findings of fact made by the tribunal, the tribunal finds that the claimant was dismissed by the respondent with effect from 21 May 2004 and the reason for the dismissal was redundancy, as the dismissal occurred in the context of the respondent ceasing business. Accordingly, the claimant would be entitled to a redundancy payment under Article 174 of the Employment Rights (Northern Ireland) Order 1996. Furthermore, the tribunal is satisfied that the claimant was entitled to be paid one week's pay in lieu of outstanding holiday leave at the effective date of termination, and was also entitled to one week's pay in respect of what was the custom and practice in the respondent's employment that is to say the working of a lying week without pay with that week to be paid at the end of the employment.

  8. Accordingly, the tribunal finds the claimant's complaints to be well-founded and calculates what is due to the claimant as follows:-

    9. Redundancy pay - 7 x £270 = £1,890.00

    One week's pay in respect of unpaid holiday pay = £ 300.00

    One week's pay in respect of the lying week = £ 300.00

    Total = £2,490.00

    The tribunal Orders the respondent to pay to the claimant the total sum of £2,490.00, in respect of redundancy pay and unpaid wages.

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

    Chairman:

    Date and place of hearing: 12 October 2005 , Belfast & 11thOctober

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2005/2139_04.html