THE INDUSTRIAL TRIBUNALS

CASE REF:	2607/06

CLAIMANT:			Desmond Monaghan

RESPONDENT:		James Wallace

DECISION
The unanimous decision of the tribunal is that the respondent shall pay a redundancy payment to the claimant of £1,056.

Constitution of Tribunal:
Chairman:		Ms Bell
Members:		Mr Robertson
			Mr Mitchell

Appearances:
The claimant represented himself.
The respondent was represented by Mr B Morgan, Solicitor of Monaghan & McManus.

The claimant claimed that he was entitled to a redundancy payment from the respondent following receipt of notice of redundancy on 20 July 2006 and otherwise that he was unfairly dismissed on 10 September 2006 after taking some days off due to depression and stress.  The claimant also claimed that he had not received holiday pay during his period of employment but was unsure of what he was due.

The respondent admitted that the claimant had been dismissed but claimed this was by reason of conduct, the claimant having continuously taken days and weeks off work and having been given verbal and written warnings.

ISSUES TO BE DETERMINED BY THE TRIBUNAL

1.	What was the reason for dismissal?

2.	Is the claimant entitled to unpaid holiday pay?

The tribunal considered the claim, response and agreed documentation handed in by the respondent and claimant.  The tribunal heard from the claimant, the respondent and Mr Brian O’Neill the respondent’s accountant.  The tribunal furthermore considered written submissions of the respondent.

The tribunal having heard the evidence and considering the documentation before it found the following facts:-

FINDINGS OF FACTS

 1.	The respondent was a former employee of Moy Park and following a re-organisation became a self-employed contractor and undertook contract cleaning for Moy Park at its Lisnaskea factory.

 2.	In August 1998 the respondent employed the claimant as a washer at Moy Park’s Lisnaskea factory.

3.	The claimant was employed to work six hours per day, five days per week from 7.00am to 1.00pm.

4.	As a washer the claimant was required to wash out food bins and crates used in the factory in the morning in connection with the preparation of formed and processed products which finished between 12 noon and 1.00pm each day.  

5.	The factory production in the afternoon concentrated on fresh food.  The crates used for the fresh food in the afternoon were washed by one of the respondent’s employees during the night shift.  The respondent did not employ anyone in the washroom of the factory in the afternoon.

6.	The claimant was the only employee of the respondent to work the day shift.

7.	For the year 05 April 2006 the claimant received wages of £8,066.90 nett and in the period to 1 August 2006 £3,407.80 nett. The respondent engaged an accountant Mr Brian O’Neill to make monthly PAYE and National Insurance returns to the Inland Revenue based on details of nett pay paid to his employees.  Mr O’Neill was not however instructed to produce pay slips for the respondent’s employees.

8.	The respondent’s employees were given three week’s paid holidays per year and received pay for customary holidays during which the factory was closed, bringing their paid holidays up to four weeks per annum.

9.	The claimant received £176 gross per week being £155 nett.

10.	In recent years the claimant began to miss work without prior notice being given by him to the respondent.  

11.	If none of the respondent’s employees attended the Moy Park Lisnaskea factory for the day shift the factory floor manager would ring the respondent to let him know, the respondent then had to make arrangements for the day shift to be covered or go in and cover the shift himself which resulted in him having on occasion to work both a day and evening shift.

12.	The respondent kept a diary note of his employees’ attendance at work.

13.	The claimant did not attend work on 16 January, 27 February and 28 February 2006.  In the absence of any contact from the claimant the respondent posted him a letter on 28 February 2006 prepared with the assistance of his niece who works in a Human Resources department.  The letter warned the claimant if the respondent did not hear from him by 6 March 2006 he would treat the claimant as having left and would forward his P45 to him.  

14.	The claimant returned to work on Monday 6 March 2006 and the respondent gave him a verbal warning for his absence.  The respondent’s niece prepared a written confirmation of a verbal warning regarding the claimant’s unauthorised absence from work, poor attendance and poor time-keeping.  The respondent attempted to give this letter to the claimant on the following day, 7 March 2006, but the claimant refused to take it from him.

15.	On 22 May and 23 May 2006 the claimant was again absent from work.  

16.	The respondent’s niece prepared a first written warning for the claimant which the respondent tried to hand to the claimant and asked him to sign for but the claimant refused to do so.  The respondent accordingly told the claimant it was a warning for missing work.  The respondent indicated to the claimant if his missing work went on it would eventually lead to him being sacked.

17.	The claimant was again absent from work on 3, 4, 5, 6, 7, 10, 11, 12, 13 and 14 July 2006.

18.	One of the claimant’s weeks of absence during 2006 was arranged retrospectively to be taken as holidays, however the respondent could not recollect for which dates this was agreed.

19.	On 17 July 2006 the claimant returned to work without explanation for his previous absence.  The respondent’s niece prepared a final written warning for the claimant which once again the respondent attempted to give to him and asked him to sign for, but the claimant refused to accept it, at which the respondent told him in blunt terms it was his final warning.

20.	It became common knowledge amongst the respondent and his employees in or around June 2006 that Moy Park were planning to close the Lisnaskea factory in or around September 2006 and on the advice of Moy Park’s personnel manager the respondent sent out to his employees notice of termination of their employment due to the impending closure.  The respondent handed the claimant a notice of termination of his employment dated 20 July 2006 with his wage’s packet on the Friday 21 July 2006.  The applicant was given one week’s notice for each continuous year of service and was advised that when his notice was exhausted there might still be some work available, subject to the closure plan.

21.	The claimant was entitled to seven week’s notice.

22.	The claimant was absent from work on 4 September, 5 September and 6 September 2006.  

23.	The respondent spoke with the claimant on the telephone on 6 September 2006 and asked him if he would be coming into work, the claimant indicated that he might, but that he might not.

24.	The claimant did not attend work on 7 September 2006.

25.	The respondent’s niece drafted for the respondent a letter dated 7 September 2006 to the claimant dismissing him with immediate effect for unauthorised absence from work and poor attendance and notifying him of his right to appeal the decision within five working days from the date of the dismissal letter.

26.	On the evening of Sunday 10 September 2006 the claimant called at the respondent’s home seeking outstanding wages.  The respondent told the claimant that he was not needed anymore.  The respondent was aware he should have given the claimant prior written notice of his reasons for intending to dismiss the claimant and to have arranged a meeting to discuss matters before proceeding to dismiss but felt he would have been wasting his time.

27.	On the following day, 11 September 2006, the dismissal letter prepared for the claimant dated 7 September 2006 was posted to the claimant.

28.	On Wednesday 13 September 2006 the claimant called at the respondent’s home and left with the respondent’s wife, work clothing, pay slips and a sick line from his GP relating to his absence the previous week due to depression.  A few days later he called again to the respondent’s home and collected the paperwork he had left.

29.	The claimant sent the respondent a letter dated 26 September 2006 seeking a redundancy payment of £3,480 following his notice on 20 July 2006 and advising otherwise he would bring a claim for his redundancy payment and alternatively unfair dismissal and would seek to recover holidays which he should have received throughout his employment.

30.	Production of the Lisnaskea factory ceased around the end of September 2006 and the factory closed on 20 October 2006 at which point the respondent paid his redundant employees their statutory redundancy payment entitlement.  No statutory redundancy payment was made to the claimant.

31.	The respondent’s representative following receipt of instructions from the respondent sent to the claimant a standard notice for particulars by way of letter dated 12 April 2007, the claimant however felt harassed by the request made and on his admission he sent the respondent a note stating that he would see the respondent in court.  The claimant then sent a note to the respondent in an envelope addressed to the respondent’s wife, advising the respondent not to ever send him a letter of harassment again and seeming to make suggestion of an extra martial affair that he would tell the respondent’s wife about otherwise.

LEGISLATION

32.	The relevant legislation in respect of redundancy payment entitlement is found at Articles 170, 171, 174 and 175 of the Employment Rights (Northern Ireland) Order 1996.

33.	Article 170(1) (a) 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.  

34.	Article 171(1) (a) provides, subject to the provisions referred to therein, for the purposes of this part an employee is dismissed by his employer if (and only if) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice).

35.	Article 174(1) (a) (ii) provides 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 his employer has ceased or intends to cease to carry on that business in the place where the employee was so employed.

36.	Article 175(1) (a) provides an employee is not entitled to a redundancy payment by reason of dismissal where his employer, being entitled to terminate his contract of employment without notice by reason of the employee’s conduct, terminates it without notice.

37.	Article 175(3) (a) provides where the contract of employment of an employee who has been given notice by his employer to terminate his contract of employment is terminated as mentioned in paragraph (1) at any relevant time otherwise than by reason of his taking part in a strike, an industrial tribunal may determine that the employer is liable to make an appropriate payment to the employee if on a reference to the tribunal it appears to the tribunal, in the circumstances of the case, to be just and equitable that the employee should receive it.

38.	Article 175(4) states:-

		“In paragraph (3) “appropriate payment” means –

(a)	the whole of the redundancy payment to which the employee would have be entitled apart from paragraph (1), or 

(b)	such part of that redundancy payment as the tribunal thinks fit.”

39.	Article 175(5) (a) provides in this Article “relevant time” in the case of an employee who has been given notice by his employer to terminate his contract of employment, means any time within the obligatory period of notice.

40.	Article 171(4) provides in this Part the “obligatory period of notice”, in relation to notice given by an employer to terminate an employee’s contract of employment, means –

	(a)	the actual period of the notice in a case where the period beginning at the time when the notice is given and ending at the time when it expires is equal to the minimum period which (by virtue of any statutory provision or otherwise) is required to be given by the employer to terminate the contract of employment, and

(b)	the period which –

(i)	is equal to the minimum period referred to in sub-paragraph (a), and

(ii)	ends at the time when the notice expires, in any other case.

41.	The relevant legislation in respect of annual paid holiday entitlement is found in Articles 13, 14, 16 and 30 of the Working Time Regulations (Northern Ireland) 1998.

APPLYING THE LAW TO THE FACTS

42.	The tribunal is satisfied on the balance of probabilities that the respondent intended to cease to carry on its contract cleaning business at the Moy Park factory at Lisnaskea due to its impending closure in or around September 2006 and gave notice of dismissal to the claimant for this reason by letter dated 20 July 2006 to end his employment at the earliest on 7 September 2006, allowing for his seven weeks statutory minimum notice period, with the possibility of further work being available thereafter.  The claimant would therefore be entitled to a statutory redundancy payment under Article 170(1) of the 1996 Order.

43.	The tribunal is not satisfied that subsequent termination of the applicant’s employment on 10 September 2006 when there was still work available at the factory, as a result of the claimant’s absenteeism, cancelled his entitlement to a statutory redundancy payment in full.  The tribunal however do not consider in light of the applicant’s conduct, it is just and equitable that he receive a full redundancy payment but think that half that amount would be fit.

44.	The evidence of the respondent’s was disputed in the majority by the claimant, in particular evidence given in respect of working hours, weekly pay and whether the claimant received paid holidays, was completely at odds with that of the claimant.  The claimant claimed he worked mornings and afternoons, that he received £250 nett per week and he did not receive paid holidays.

45.	The tribunal prefers the evidence of the respondent in respect of working hours and pay in that it was consistent with and supported by the evidence of Mr O’Neill and documentary evidence produced, including the inland revenue form P11 deductions working sheet for the year end 5 April 2007 prepared by Mr O’Neill and 2004 pay slips from various dates produced by the claimant.  The tribunal is satisfied the claimant received £176 gross per week being £155 nett.

46.	The tribunal is not satisfied on the evidence given that the claimant’s claim that he did not receive his statutory minimum paid holiday entitlement is made out, in particular in view of Mr O’Neill’s evidence and figures given for the claimant’s annual earnings which would have been expected to be less if say payment had not been made for factory closure times.

CONCLUSION

47.	The applicant is entitled to a redundancy payment of -

	£176  x  1½  x  8  =  £2,112  ÷  2  =  £1,056

£176 (Gross weekly wage)
x 1½ (Factor based on age)
x 8 (Years of continuous employment)
÷2 (Part of redundancy payment tribunal think fit)

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990. 	  

Chairman:

Date and place of hearing:	27 April 2007, Belfast.

Date decision recorded in register and issued to parties: