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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCoubrey v I.M. Windows and Conservatorie... [2009] NIIT 228_09IT (18 June 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/228_09.html Cite as: [2009] NIIT 228_9IT, [2009] NIIT 228_09IT |
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CLAIMANT: Graham Stanley McCoubrey
RESPONDENT: I.M. Windows and Conservatories Limited
The decision of the tribunal is that the respondent is hereby ordered to pay the claimant a total sum of £2407.29 in respect of statutory redundancy payment, outstanding holiday pay and notice monies.
Constitution of Tribunal:
Chairman (Sitting Alone): Ms Turkington
The claimant appeared and represented himself.
The respondent had not lodged a response form and did not appear at the hearing.
The Claims
The claimant brought the following claims before the tribunal:-
1. A claim in respect of the respondent’s failure to pay a statutory redundancy payment to the claimant upon termination of his employment.
A claim for pay in lieu of holidays accrued but not taken at the date of termination of the claimant’s contract of employment.
A claim for breach of contract in respect of the respondent’s failure to pay notice monies.
The Issues
The issues to be determined by the tribunal were:-
Whether the claimant’s employment was terminated by reason of redundancy and whether the claimant was therefore entitled to a statutory redundancy payment and, if so, the amount of such statutory redundancy payment.
Whether the claimant had outstanding holidays accrued but not taken at the date of termination of his contract and, if so, the amount of pay in lieu of such holidays due to the claimant.
Whether the respondent failed to provide the required period of notice to the claimant or to pay the claimant in lieu of notice and, if so, the amount of pay in lieu of notice due to the claimant.
The respondent did not appear at the hearing. The respondent had not presented a response form and, in accordance with Rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Sources of Evidence
The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.
Facts of the Case
Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-
The claimant whose date of birth is 23 December 1966 started his employment as a salesman for the respondent on or about 5 July 2004. The claimant never received a statement of main terms and conditions of employment.
Throughout his employment, the claimant received net basic pay of £200 per week (£243.49 gross) together with 3% commission on sales. During the last few months of his employment, due to a severe downturn in business, the claimant received little or nothing by way of commission in addition to his basic wage.
The claimant’s employment was terminated by the respondent on 29 August when the respondent handed him a letter indicating that the company was ceasing to trade with immediate effect.
The claimant did not receive any statutory redundancy payment from the respondent.
The claimant was entitled to holidays under the Working Time Regulations. The holiday year operated by the respondent ran from 1 January to 31 December. During the 2008 holiday year, the claimant had with the agreement of the respondent carried over 1 week’s holiday from the previous year. The claimant had taken 2 weeks holiday up to the date of termination of his employment.
The claimant did not receive notice of termination of his employment nor did he receive pay in lieu of notice.
As directed by the respondent, the claimant wrote to solicitors acting on behalf of the respondent, namely Napiers, on 9 December 2008 setting out the claimant’s complaints in respect of redundancy payment, outstanding holiday pay and pay in lieu of notice. Neither the respondent nor the solicitors on its behalf made any substantive response to that letter.
Statement of Law
Under Article 170 of the Order, an employer shall pay a redundancy payment if an employee is dismissed by reason of redundancy. By Article 174, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the employer has ceased to carry on the business for the purposes of which the employee was employed.
Under Regulation 13 of the Working Time Regulations (as amended), a worker is entitled to a total of 4.8 weeks paid leave in any leave year beginning on or after 1st October 2007 but before 1 April 2008. By Regulation 14, where a worker’s employment is terminated during the course of his leave year and, on the termination date, the proportion of leave which he has taken is less than the proportion of the leave year which has expired, the employer must make a payment in lieu of leave accrued but not taken.
By Article 118 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), the notice required to be given by an employer to terminate the contract of employment of an employee is one week’s notice for each year of continuous employment between 2 years and 12 years.
Conclusions
19. The tribunal had no hesitation in concluding that the claimant’s employment was terminated by reason of redundancy in view of the clear indication from the respondent that the company was ceasing to trade. The claimant is therefore entitled to a statutory redundancy payment as follows:-
1 week’s gross pay (capped at £330) for each full year of continuous employment during which the claimant was aged between 22 and 41
1 multiplied by £243.49 multiplied by 4 = £973.96.
20. Since the claimant had carried over 1 weeks holiday from the previous holiday year, but had taken 2 weeks holiday, he was entitled to 3.8 weeks paid holiday (pro rata) on termination of his employment on 29 August 2008. The claimant is entitled to pay in lieu of holidays as follows:-
3.8 weeks @ £200 per week multiplied by 10/12 = £633.33.
21. At the date of termination of his employment, the claimant had 4 years continuous employment with the respondent. The claimant was therefore entitled to 4 weeks notice or 4 weeks pay in lieu of notice. Since the claimant did not receive notice or pay in lieu, the claimant is entitled to pay in lieu of notice as follows:-
£200 per week multiplied by 4 weeks = £800.
22. The total sum due to the claimant by the respondent is £2,407.29.
23. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 7 May 2009, Belfast.
Date decision recorded in register and issued to parties:
