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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Watt v TD Walls Ltd (in liquidation) Department for Employment and ... [2011] NIIT 00245_10IT (10 May 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/00245_10IT.html Cite as: [2011] NIIT 00245_10IT, [2011] NIIT 245_10IT |
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The claimant’s claim for a redundancy payment is dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Mr B Greene
The claimant appeared in person.
The first respondent was neither represented nor in attendance.
The second respondent was represented by Mr Peter Curran of Redundancy Payments Branch.
SOURCE OF EVIDENCE
1. The tribunal heard evidence from the claimant. The second respondent submitted documents of 11 pages, which evidence was submitted by consent. The parties also made submissions.
THE CLAIM AND DEFENCE
2. The claimant claims a redundancy payment. The claimant’s entitlement to a redundancy payment in not in dispute.
THE ISSUES
3. What is the quantum of the redundancy payment to which the claimant is entitled?
FINDINGS OF FACT
4. (1) The claimant was born on 28 August 1966. He worked for the first respondent from 1997 until 29 April 2009 as a skilled construction worker.
(2) The first respondent entered a creditors’ voluntary liquidation on 21 May 2010.
(3) The claimant alleges he began working in April 1997. The second respondent submits it was not until September 1997 that he began to work for the first respondent as an employee.
(4) On 29 April 2009 the claimant and the rest of the workforce were given their P45s, paid their wages, and given a redundancy payment.
(5) The claimant received £2,037.44 which is less than he was entitled to by way of statutory redundancy. Two of the three directors had contributed to this, the third had not.
(6) The claimant made an application to the second respondent which paid him £1,647.16.
(7) The claimant obtained a decree in the County Court for £2,000.00 in relation to his redundancy entitlement. The decree is dated 4 January 2010.
(8) It was agreed between the parties that the difference between the claimant and the second respondent as to the amount of his redundancy payment is £320.44. This arises depending on whether the claimant’s starting date is April or September 2007. In his claim form and his application for payment to the second respondent the claimant gave his starting date as September 1995.
(9) The claimant asserts it was April 1997 when he began working for the first respondent. He does not have any and was unable to obtain any supporting evidence. In support of his contention he says he earned about £180.00 per week and the records of his earnings for national insurance purposes show he earned £8,415.00 in the financial year 1997/1998, which he says is in excess of 6 months work. However he did indicate to the tribunal that he worked overtime though not every week.
(10) The second respondent says it believes it was September 1997 that the claimant began to work for the first respondent. In support it submitted:-
(a) That the first respondent’s records only went back to September 2000.
(b) The directors of the first respondent accepted the claimant began his employment in 1997.
(c) The common thread of dates for starting to work for the first respondent as an employee, put forward by the claimant, was September even if the year was wrong.
(d) The claimant successfully made a claim for family credit in the financial year 1997/1998 for 26 weeks and this is only payable if someone is in employment. That is consistent with a start date in September 1997.
THE LAW
5. (1) An employer shall pay a redundancy payment to an employee if the employee is dismissed by the employer by reason of redundancy (Article 170 The Employment Rights (Northern Ireland) Order 1996).
(2) Where an employee claims that his employer is liable to pay to him a redundancy payment and he has taken all reasonable steps other than legal proceedings to recover the redundancy payment from the employer who has refused or failed to pay or paid part of it or the employer is insolvent the employee may apply to the Department for payment (Article 201 The Employment Rights (Northern Ireland) Order 1996).
(3) Where the Department is satisfied that Article 201 has been met it shall make a payment out of the Northern Ireland National Insurance Fund (Article 202 The Employment Rights (Northern Ireland) Order 1996).
APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES
6. (1) The tribunal is not persuaded that the claimant began working with the first respondent in April 1997. In so concluding the tribunal had regard to the following matters:-
(a) The claimant has advanced a different date, ie, September 1995 both in his claim form and in his application to the second respondent for payment.
(b) He has no supporting evidence to backup his claim of April 1997.
(c) His argument based on the amount of his earnings, particularly if overtime is worked, does not support working from April 1997.
(d) The payment of family credit for six months in the financial year 1997/1998 suggests that the claimant did not work as an employee for the whole 12 months. In fact it suggests that he worked for six months only. That is consistent with a start date in September 2007.
(2) If the start date for work is September 1997 then the claimant has received his full redundancy payment of £3,684.60, £2,037.44 from the first respondent and £1,647.16 from the second respondent. There is not any redundancy payment owing to the claimant.
(3) In light of the finding that the claimant has already received his full redundancy payment it is unnecessary for the tribunal to consider the effect on his claim of the County Court decree for £2,000.00 against the first respondent in relation to his redundancy entitlement.
(4) Accordingly, the claimant’s claim is dismissed.
Chairman:
Date and place of hearing: 18 April 2011, Belfast.
Date decision recorded in register and issued to parties:
