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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McIntyre v Thompson t/a Thompson E... [2009] NIIT 79_09IT (13 May 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/79_09.html Cite as: [2009] NIIT 79_9IT, [2009] NIIT 79_09IT |
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The decision of the tribunal is that the claimant is entitled to redundancy payment of £2520.00.
Constitution of tribunal:
Chairman (sitting alone): Ms F Oliver
The claimant’s claim was for a redundancy payment.
The Issues
2. Was the claimant made redundant and is she entitled to a redundancy payment in accordance within Art 170 of the Employment Rights (Northern Ireland) Order 1996?
Sources of evidence
The Tribunal heard evidence from the claimant and the respondent and considered the originating claim and response and Statement of Main Terms of Employment dated 08/06/06.
Analysis of evidence
4. There was a factual dispute between the parties as to what was said at a meeting on 15 July 2008. The claimant contends that she was told that she was being made redundant on 25 July 2008 whereas the respondent states that he simply indicated that the claimant may be made redundant at some stage in the future. This is critical to the success or failure of the claim as a mere warning of a possible redundancy is not sufficient to determine the contract of employment.
5. We prefer the evidence of the claimant as her subsequent actions and the actions of the respondent all point to the fact that the claimant was told on 15 July 2008 that she was being made redundant on 25 July 2008. There is a ring of truth to the sequence of events as described by the claimant. It is entirely consistent that she would ring the CAB and would have been given the advice she said she was given. The actions of both the claimant and respondent all point to the claimant being given a specific date of termination. In particular, we note the absence of any attempt by the respondent to persuade the claimant to remain in employment. If events had happened as indicated by the respondent, it would have been reasonable for the respondent to indicate to the claimant that there was only a possibility of redundancy. Also the respondent accepts that he told the claimant that he was pulling down the shutters and that he did in fact do so at a later date.
6. There is also the question of the conversations which took place in August in which the respondent indicated that he was awaiting advice from his advisers regarding payments due. If the claimant had left, as suggested by the respondent, it would have been a simple matter for the respondent to indicate that no redundancy payment was due as the claimant had taken the decision to leave.
7. There was dispute regarding the length of continuous service. However, the claimant provided a document signed by the respondent indicating that he accepted that the claimant’s service started on 15 November 1993 and the tribunal accepts this as evidence of the employment start date.
Findings of Fact
8. The claimant was born on 28 October 1966 and was employed as a quality manager by the respondent from 15 November 1993 until 1 August 2008. She earned £180.00 gross making £158 net per week for a 30-hour week.
On 15 July 2008 the claimant was told by the respondent that he would have to let her go as there was no money available and that her last day would be 25 July 2008.
After the claimant received employment advice and drew this to the attention of the respondent, the respondent agreed that the claimant was entitled to twelve weeks notice pay and he indicated that if he was going to have to pay this Notice Pay, then the claimant would have to work it.
The respondent informed the claimant that if she required time off work to look for other employment, she would be entitled to this. He also informed the claimant that if she obtained alternative employment, he would not insist that she work her notice period. The respondent told the claimant that if she obtained alternative employment, she could leave but that she would not receive her Notice Pay. He told her that she would however remain entitled to her redundancy pay.
The claimant obtained alternative employment and by agreement with the respondent, the claimant finished work on 1 August 2008 and did not work the twelve week notice period. Therefore, she did not claim and is not entitled to any notice pay.
The Law
Redundancy payment
The right to redundancy payment arises under Article 170 of the ERO. In order for an employee to be entitled to a redundancy payment he must show that he was an employee, that he was continuously employed for 2 years, that he was dismissed and that the dismissal was by reason of redundancy.
Redundancy is defined at Article 174 which states that 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 requirements of the business for employees to carry out work of a particular kind have ceased or diminished.
The tribunal was referred to and gave consideration to the case of Morton Sundour Fabrics Limited V Shaw (2 ITR 84). This case is relevant as it holds that in order to determine a contract of employment an employer must specify when the termination is to occur.
The amount of any redundancy payment is determined by reference to the employee’s age, length of continuous employment and gross weekly wage.
Conclusions
The tribunal applied the law to the facts found and concluded as follows;
The claimant was made redundant by oral notice given to her on 15 July 2008. The respondent made it clear to the claimant that her job was ending the following week. It was not a mere warning of a possible redundancy.
The calculation of compensation therefore is as follows:
Redundancy
14 (years of service) x £180.00 (gross weekly wage) £2520.00
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 1 April 2009, Strabane
Date decision recorded in register and issued to parties:
