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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kirkpatrick v Whyte & Anor [2009] NIIT 6695_09IT (01 December 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/6695_09IT.html Cite as: [2009] NIIT 6695_09IT, [2009] NIIT 6695_9IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6695/09
CLAIMANT: Thomasina Kirkpatrick
RESPONDENTS: Jeff Whyte and Tania Morelli Whyte
DECISION
The decision of the tribunal is that the claimant is entitled to a redundancy payment in the sum of £2,368.92 and pay in lieu of notice in the sum of £592.23 making a total award of £2961.15.
Constitution of Tribunal:
Chairman (sitting alone): Mrs A Wilson
Appearances:
The claimant appeared in person and was unrepresented.
The respondent did not appear and was not represented. In any event the respondent not having entered a response was not entitled to take part in the proceedings.
The issues
(i) Is the claimant entitled to redundancy pay from the respondent and if so how much?
(ii) Is the claimant entitled to notice pay and if so how much?
Sources of evidence
The tribunal considered the claim form and the sworn testimony of the claimant.
Findings of relevant fact
1. The claimant was employed by the respondent as cook/baker at Morelli's at Logans, 232 Frosses Road, Cloughmills, Ballymena from 1 September 2000 until 21 March 2009. She was continuously employed for eight full years at the date of termination of her contract of employment.
2. The claimant's pay varied from week to week and her average gross weekly pay was £197.41.
3. On 12 February 2009 the claimant received a letter from the respondents in the following terms:-
"....we have to accept that we may have to close the business........With that in mind, we are taking the precautionary step of giving you notice of one month (for persons employed for less than 2 years) or 1 week for every full year of service.”
4. The claimant's employment terminated on 21 March 2009 following the closure of the business.
5. The claimant received no redundancy pay and five weeks notice pay.
6. The claimant was aged 41 years and upwards during the period of her employment.
The law and the application of the law to the facts
7. The law governing redundancy is set out in Part XII of the Employment Rights (Northern Ireland ) Order 1996 [the Order].
Article 174 lists the circumstances in which an employee is redundant and provides:-
—(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
(ii) to carry on that business in the place where the employee was
so employed,
8. The tribunal find that in circumstances where the respondent ceased to carry on the business in which the claimant was employed, the claimant was redundant within the meaning of Article 174.
9. Article 180 of the Order provides the right to a redundancy payment and the tribunal find that the claimant was entitled to redundancy pay under that provision.
10. The amount of redundancy pay is calculated in accordance with Article 197 of the Order which provides in the claimant's case as follows:-
8 (full years employment) x £296.11 (1.5 weeks pay) = £2,368.92.
11. Article 118 of the Order provides the period of notice which must be given to terminate the contract of employment and when applied to this case entitles the claimant to 8 weeks notice. The claimant received 5 weeks notice and is entitled to 3 weeks pay in lieu of notice as follows:-
£197.41 x 3 = £592.23
12. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 2 November 2009, Belfast
Date decision recorded in register and issued to parties:
