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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ceirog-Hughes v Barry Dalzell [2013] NIIT 02085_12IT (18 February 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/2085_12IT.html Cite as: [2013] NIIT 02085_12IT, [2013] NIIT 2085_12IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2085/12
CLAIMANT: Grahame David Ceiriog-Hughes
RESPONDENT: Barry Dalzell
DECISION
(A) The claimant’s claims in respect of holiday pay and notice pay are dismissed because of the effect of Article 255 of the Insolvency (Northern Ireland) Order 1989.
(B) The claimant’s claim for redundancy pay is not well-founded. Accordingly, it is dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Mr Buggy
Appearances:
The claimant was self-represented.
The respondent was self-represented.
REASONS
1. The claimant was employed by the respondent for several years, in the respondent’s “All-ways Couriers” business. That business closed down with effect from 21 January 2011. At that point, the claimant was dismissed, with immediate effect. In June 2011, the respondent became bankrupt. He was discharged from bankruptcy a year later.
2. The proceedings in this case were commenced on 18 October 2012.
3. In these proceedings, the claimant makes claims in respect of holiday pay, notice pay and redundancy pay.
The evidence
4. At paragraph 7.4 of his claim form, the claimant provided the following details:-
“When I received my letter from Mr Barry Dalzell saying that the company was closing on 21 January 2011 and he was unable to pay any redundancy or holiday pay, I got a redundancy and insolvency form (RP1 form) off their website and filled in the form and sent it off …. I was told by a friend it would take 6-8 months until I would hear from them.
In July 2012 I got in touch with the Redundancy Services to see what was happening and they told me they had not received my form. The girl on the phone said she would send out another form which she did and I filled it in and sent it off again. I received a letter from the Redundancy Payments Service on 19 September 2012 to say “I regret to inform you that I must reject your application for a redundancy payment from the Department as you last worked 21-01-11 and [we] did not receive your claim until 10-8-12. According to the Employment Rights (Northern Ireland) Order 1996 (an employee does not have the right to redundancy payment unless, before the end of the period of six months beginning with the relevant date the employee has made a claim for the payment)”.
When I phoned them up to say that I had applied before this they said they could do nothing as they did not receive the first claim form and told me to apply to the Employment Tribunals.
I would just like to say that they [Redundancy and Insolvency Department] have lost/misplaced my first RP1 form and all my personal information which I am not pleased about. I applied for this within the 6 month time period required.”
5. The claimant also gave evidence on oath during the hearing. I found aspects of that evidence to be implausible and unconvincing. In particular, I am not satisfied that the claimant made any application to the Redundancy Payments Service in 2011. I remain unclear as to the real reasons for the apparent lack of urgency, on the part of the claimant, in pursuing these matters.
The holiday pay and notice pay claims
6. The holiday pay and notice pay claims were claims which were provable in the respondent’s 2011 bankruptcy. When the respondent was discharged from that bankruptcy, in June 2012, he was released from personal liability in respect of any such claims. (See Article 255 of the Insolvency (Northern Ireland) Order 1989).
The redundancy pay claim
7. Article 199(1) of the Employment Rights (NI) Order 1996 (“the 1996 Order”) provides as follows:-
“(1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date –
(a) the payment has been agreed and paid,
(b) the employee has made a claim for the payment by notice in writing given to the employer,
(c) a question as to the employee’s right to, or the amount of, the payment has been referred to an industrial tribunal, or
(d) a complaint relating to his dismissal has been presented by the employee under Article 145.
(2) An employee is not deprived of his right to a redundancy payment by paragraph (1) if, during the period of six months immediately following the period mentioned in that paragraph, the employee—
(a) makes a claim for the payment by notice in writing given to the employer,
(b) refers to an industrial tribunal a question as to his right to, or the amount of, the payment, or
(c) presents a complaint relating to his dismissal under Article 145,
….”
8. During the period of six months beginning with the date of dismissal, none of the actions envisaged at sub-paragraphs (a)-(d) of Article 199(1) were taken. First, no payment was made. Secondly, I am satisfied that no claim for the payment was made in writing to the employer. Thirdly and fourthly, no industrial tribunal proceedings were initiated during that period.
9. I am satisfied that none of the actions envisaged in paragraph (2) of Article 199 were taken during the following six-month period. First, I am satisfied that the claimant did not make a claim for the payment by notice in writing given to the employer. Secondly and thirdly, I am satisfied that no industrial tribunal proceedings were initiated during that second six month period.
10. Accordingly, in this case, the requirements of paragraph (1) of Article 199 were not met, and the requirements of Article 199(2) were not met either. In those circumstances, I have no discretion. In those circumstances, any right to a redundancy payment has been extinguished.
Next steps
11. Because any claim which the claimant may have had in respect of redundancy pay is now extinguished, the Redundancy Payments Service (“the RPS”) now has no obligation to make any payment (to the claimant) in respect of redundancy, in the exercise of the statutory guarantor functions of the RPS.
12. However, it is arguable that the fact that the respondent is now discharged from any liability in respect of holiday pay or notice pay is not a circumstance which deprives the RPS of power to make payments to the claimant in respect of such debts, if such debts had originally been owed by the respondent, and if those debts were owed at the time of he became bankrupt. The claimant should contact the Labour Relations Agency and seek information from the LRA in relation to the holiday pay and notice pay debts issue.
Chairman:
Date and place of hearing: 10 December 2012, Belfast
Date decision recorded in register and issued to parties:
