McCarthy v Dunlop (t/a Glenco Decorators)  (Redundancy Pay)  (19 March 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	1603/01

APPLICANT:	Paul McCarthy

RESPONDENT:	Peter Dunlop
			T/a Glenco Decorators 

DECISION
The decision of the tribunal is that the tribunal does not have jurisdiction to hear the applicant’s complaint, as the applicant was not dismissed by the respondent.  Accordingly, the applicant’s complaint is dismissed.  

Appearances:
The applicant appeared and represented himself.
The respondent did not appear and was not represented.

THE PRELIMINARY ISSUE 

1.	The applicant's complaint to this tribunal was in respect of redundancy payment.  During the course of the hearing of the matter, a preliminary issue arose as to whether or not the applicant was disqualified from the right to pursue a claim for redundancy payment on account of the provisions of Article 170(1) of the Employment Rights (Northern Ireland) Order 1996.   Article 170(1) provides that: 

"An employer shall pay a redundancy payment to any employee of his if the employee - 

is dismissed by the employer by reason of redundancy, or 
is eligible for a redundancy payment by reason of being laid off or kept on short-time".

The tribunal had to determine if the applicant was dismissed by the respondent, and, if so, whether or not redundancy was the reason for the dismissal.  

THE TRIBUNAL'S FINDINGS

2.	The respondent at the material time carried on a painting and decorating business from premises in Belfast.  The applicant commenced working for the respondent in 1989.  There was an initial issue as to the applicant's status in view of the fact that he was classified initially as self-employed, but the tribunal, after hearing the evidence, was satisfied that the applicant was from the outset until the end of the employment continuously employed as an employee of the respondent.

3.	Throughout this employment the respondent on a number of occasions put the applicant on notice of redundancy.  The latest and the last of these was on 23rd February 2001 on which date the respondent's contracts manager, Mr. McFerran, spoke with the applicant and orally conveyed to him the message from the respondent that the applicant was "on three weeks' notice".  There was no written notice.  

4.	The applicant sought advice at that time from the Labour Relations Agency.  He requested to be advised if he was entitled to look for other employment whilst on notice of redundancy.  The Labour Relations Agency confirmed to the applicant that he could do so.  The applicant made contact with another painting and decorating company, C B Contracts, and was offered a job.  It was made clear to him that the applicant would have to start work with that company on Monday the 5th March 2001.  On the previous Friday, the 2nd March 2001, the applicant spoke to the respondent on the telephone and asked the respondent if he could guarantee further employment to the applicant.  The respondent declined to provide this guarantee.  The applicant then told the respondent that because he (the respondent) could not guarantee work, the applicant had accepted an offer of employment from another company, commencing the following Monday the 5th March 2001.  The respondent accepted the applicant's position in that regard and the applicant's employment with the respondent came to an end that day, the 2nd March 2001.

THE TRIBUNAL’S DECISION

5.	The preliminary issue for determination was whether, on the facts, the complaint fell within Article 170 of the Employment Rights (Northern Ireland) Order 1996.  That Article is specifically designated as referring to the right to redundancy payment.  For an applicant to qualify, the tribunal needs to find that the applicant was dismissed by the respondent.  Article 171 of the Employment Rights (Northern Ireland) Order 1996 makes further provision in respect of circumstances in which an employee is taken to be dismissed.  Specifically, Article 171 (3) provides:

"An employee shall be taken to be dismissed by his employer for the purposes of this Part if – 

(a)	the employer gives notice to the employee to terminate his contract of employment, and

(b)	at a time within the obligatory period of notice the employee gives notice in writing to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire. 

This latter notice on the part of the employee is what is often referred to as the employee's "counter notice".

6.	The tribunal found that the respondent had, on 23rd February 2001, orally communicated to the applicant three weeks' notice of termination of the contract of employment, ostensibly on grounds of redundancy.  The tribunal, further, took the conversation between the applicant and the respondent which occurred on Friday the 2nd March 2001 as constituting the applicant's giving counter notice to the respondent, as his employer, of termination of the contract of employment on a date earlier than the date on which the employer's notice was due to expire.

7.	However, in order to comply with Article 171(3)(b) of the Order, the employee's counter notice must be in writing.  The law is quite clear in regard to that.  There was placed before the tribunal no evidence that the applicant's counter notice was in writing.  Indeed the applicant conceded that any notice given by him to the respondent was oral only.

8.	The formal onus of proving dismissal lies on the employee.  There being no further evidence before the tribunal to support the applicant's contention that the respondent dismissed him, taking into account these statutory provisions, nor any further relevant evidence or submissions going towards the determination of this issue, the tribunal is unable to draw any other conclusion but that the applicant was not dismissed by the respondent.  Accordingly, the statutory right to a redundancy payment arising from Article 170 is not available to the applicant in this matter.  That being the case, the applicant's complaint is dismissed, as the tribunal does not have jurisdiction to hear the complaint.

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Date and place of hearing:  12 February 2002, Belfast 

Date decision recorded in register and issued to parties: 19 March 2002