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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Johnston v Mellon [2006] NIIT 682_05 (6 June 2006) URL: http://www.bailii.org/nie/cases/NIIT/2006/682_05.html Cite as: [2006] NIIT 682_05, [2006] NIIT 682_5

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 682/05

768/05

CLAIMANTS: Kathleen Johnston

Mardi Bell

RESPONDENT: Siobhan Mellon

DECISION

The unanimous decision of the tribunal is that the first-named claimant is entitled to a redundancy payment, notice pay and holiday pay totalling £2,519.41 and that the second-named claimant is entitled to a redundancy payment and notice pay totalling £1,826.85.

Constitution of Tribunal:

Chairman: Mr Wimpress

Members: Mr White

Ms Townsley

Appearances:

The claimants were unrepresented.

The respondent did not appear and was not represented.

1. The claimants both brought claims for redundancy payments and notice pay arising from the termination of their employment with the respondent. The first-named claimant also made a claim for holiday pay.
2. The respondent did not appear at the hearing and was not represented. The tribunal considered Rule 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, in relation to hearing a case where a party fails to attend or be represented at the time and place fixed for hearing. The tribunal was satisfied that the respondent had received notification of the hearing and that it was appropriate to proceed in her absence. In so doing, the tribunal considered the information that was available to it which included the respondent's response and the oral and documentary evidence from both claimants.
3. The tribunal found the following facts. Both claims arose from the closure of the respondent's hairdressing salon, Heritage Hair Design, on or about 5 March 2005.
4. The first-named claimant's date of birth is 4 February 1971 and she commenced full-time employment as a hairdresser with the respondent in October 1998. She worked for the respondent for six years and five months. The first-named claimant's gross pay was £200.00 per week and her average take home pay was £180.07. In addition to statutory holidays she received four weeks' paid holidays per year. The leave year ran from October to October. The first-named claimant became aware of the imminent closure of the business when she saw a Notice to Customers in the salon on Monday 28 February 2005 that indicated that the salon was closing on Saturday 5 March 2005. She did not receive any formal notice or notice pay. She was unable to contact her employer during the final week. She attempted to contact her employer both verbally and in writing in order to discuss notice and redundancy payments but without success. A member of her employer's family instructed her to contact the respondent's accountant which she did. The accountant told her that he no longer dealt with the respondent's affairs. The first-named claimant subsequently obtained new employment as a hairdresser and she did not claim Jobseeker's Allowance or Income Support.
5. The second-named claimant's date of birth is 7 February 1967 and she commenced full-time employment as a hairdresser with the respondent in May 1999. The second-named claimant's gross pay was £197.78 per week and her average take home pay was £167.59. The salon closed while she was on holiday and did not re-open. She received no communication from the respondent. She worked for the respondent for approximately five years and ten months. She complained in writing to the respondent about her treatment but did not receive any response. She did not receive any formal notice or notice pay. The second-named claimant also obtained new employment. She did not claim Jobseeker's Allowance or Income Support.
6. The Law

Notice

Article 118(1) of the Employment Rights (Northern Ireland) Order provides that the notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more:-

(b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years.

The first-named claimant was therefore entitled to receive the statutory minimum notice of six weeks. On the basis of the first-named claimant's undisputed evidence, it is clear that she did not in fact receive any notice at all.

The tribunal therefore orders the respondent to pay to the first claimant six weeks' net pay in lieu of notice - £1,080.42 (£180.07 x 6).

7. On the basis of the second-named claimant's evidence, she was entitled to receive the statutory minimum notice of five weeks. It is clear that she did not in fact receive any notice either.

The tribunal therefore orders the respondent to pay to the second-named claimant five weeks' net pay in lieu of notice, - £837.95 (£167.59 x 5).

8. Redundancy

The relevant provisions of the Employment Rights (Northern Ireland) Order are as follows:-

"Article 170(1) - An employer shall pay a redundancy payment to any employee of his if the employee –

(a) is dismissed by the employer by reason of redundancy.

Article 171(1) - Subject to the provisions of this Article and Articles 172 and 173, for the purposes of this Part an employee is dismissed by his employer if (and only if) –

(a) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice).

Article 174(1) - For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason 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 …..

Article 180 (1) - For the purposes of the provisions of this Order relating to redundancy payments 'the relevant date' in relation to the dismissal of an employee has the meaning given by this Article –

(2) Subject to the following provisions of this Article, 'the relevant date' –

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect."

The relevant date is 5 March 2005 for both claimants.

9. Redundancy payments are calculated in accordance with Article 197 of Employment Rights (Northern Ireland) Order.

The first-named claimant's age at the date of the termination of her employment was 34. She had completed six years of employment. Her gross pay was £200.00 per week.

6 x £200 = £1,200.00

The first-named claimant is therefore entitled to a redundancy payment of £1,200.00.

10. The second-named claimant's age at the date of the termination of her employment was 38. She had completed five years of employment. Her gross pay was £197.78 per week.

5 x £197.78 = £988.90

The second-named claimant is therefore entitled to a redundancy payment of £988.90

11. Holiday Pay

We accept the evidence of the first-named claimant that she is entitled to outstanding holiday pay. The leave year ran from October to October and her outstanding holiday pay entitlement is 6.6 days pro rata. She is therefore entitled to 6.6 days wages.-

6.6 x £36.21 (net pay) = £238.99

12. Summary

The first-named claimant is entitled to:-

Notice Pay £1,080.42

Redundancy Pay £1,200.00

Holiday Pay £ 238.99

Total £2,519.41

The second-named claimant is entitled to:-

Notice Pay £ 837.95

Redundancy Pay £ 988.90

Total £1,826.85

13. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 6 June 2006, Belfast

Date decision recorded in register and issued to parties: