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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Shaw v Raised Storage Solutions Ltd (... [2009] NIIT 165_09IT (26 November 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/165_09IT.html Cite as: [2009] NIIT 165_9IT, [2009] NIIT 165_09IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 165/09
CLAIMANT: Gary James Shaw
RESPONDENT: 1. Raised Storage Solutions Ltd (in liquidation)
2. Jim Halferty
3. Halferty Installations Ltd
4. Department for Employment & Learning
DECISION
(A) Upon the termination of the claimant’s employment in November 2008, Raised Storage Solutions Ltd (referred to below as “RSS”), was liable to pay the claimant the sum of £660 in respect of redundancy pay.
(B) The sum of £660 is payable, under Article 201 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), to the claimant by the fourth named respondent (“the Department”), in respect of redundancy pay.
(C) The Department ought to make payments to the claimant under Article 227 of the 1996 Order.
(D) The amounts of those payments, which the Department ought to make pursuant to Article 227, are as follows.
(E) The Department ought to make to the claimant a payment of £330 in respect of notice pay.
(F) The Department ought to make a payment of £264 in respect of holiday pay.
Constitution of tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
The claimant was represented by Ms Jane Griffiths of Magherafelt District Advice Service Ltd.
The Department was represented by Ms P Baird of the Department’s Employment Relations Operations Service Section.
There was no appearance by or on behalf of Jim Halferty or by or on behalf of Halferty Installations Ltd.
REASONS
1. On behalf of RSS, the liquidator wrote to the Office of the Tribunals on 10 March 2009, setting out the grounds upon which RSS would wish to defend the proceedings which had been brought against RSS in this case. Unfortunately, that letter was sent after the time-limit (for presentation of a response) had expired. Accordingly, the response was not accepted. Therefore, RSS is not entitled to participate in these proceedings.
2. Nevertheless, Mr Paul Gillen, Solicitor was present on behalf of RSS; and, in his capacity as a knowledgeable and legally skilled “observer”, he made a valuable contribution in the context of the hearing of these proceedings. I am grateful to him for that contribution.
3. I am also grateful for the assistance of Ms Griffiths and Ms Baird.
4. On behalf of the Department Ms Baird agreed that the proceedings could be treated as incorporating an appeal against the Department’s refusal (in the Department’s role as statutory guarantor) to make a payment to the claimant in respect of redundancy, or to make a payment to the claimant in respect of notice pay or holiday pay.
5. It was agreed between the parties that, at this hearing, I should focus on the appeal against the Department’s decisions, and that the claims against the other parties did not have to be addressed during the course of this particular hearing.
6. It was agreed between the claimant and the Department that, if the appeals were granted, then the amounts which should be paid by the Department were as follows:
(1) £660 in respect of redundancy pay and
(2) £330 in respect of pay in lieu of notice.
7. The claimant claimed to be entitled to payment from the Department in respect of holiday pay amounting to four days (this amount consisting of four days holiday pay entitlement which, according to the claimant, he had accrued by the time of his dismissal).
8. At the end of this hearing, I gave my decision orally. I also gave reasons for that decision orally. Accordingly, what follows is by way of summary only.
9. Between 6 May 2006 and 7 November 2008, the claimant was employed in a workforce which was run by Jim Halferty (the second named respondent).
10. When the claimant first became employed in that workforce, he was employed by Halferty Installations Ltd.
11. However, in the summer of 2008, there was a change of employer. From August 2008, the claimant was employed by RSS.
12. Halferty Installation Services Ltd was a company which was jointly owned by Mr Halferty and his wife. RSS was a company which was jointly owned and run by two people, Mr Halferty being one of those two individuals.
13. Entirely appropriately, the Department fought this case because, on the basis of the information which was then available to the Department, the Department was not satisfied that there was relevant continuity of employment. (If there was no continuity of employment, RSS would not be liable in respect of any redundancy payment, or in respect of any notice pay, and the Department, accordingly, would not have had a liability in its role as the statutory guarantor).
14. I am satisfied that the claimant’s continuity of employment was preserved when his employer changed. I am satisfied that the relevant change off employer was a “relevant transfer for the purposes of the transfer of undertakings (“TUPE”) regulations...”
15. I am so satisfied because I am convinced, on the basis of the claimant’s sworn testimony, that, both before and after the change of employer, the claimant was providing much the same services, as part of the same workforce, to much the same clients, using much the same equipment, and was operating from the same base(s).
16. Upon the date of termination of the claimant’s employment (in November 2008) RSS was not in liquidation. Accordingly, because this was a TUPE transfer, the transferee employer (RSS) succeeded to any liabilities which had already been incurred by the transferor employer (Halferty Installation Services Ltd); and the claimant is deemed, for all relevant purposes, to have had continuity of service throughout the period of his employment within the workforce to which he was assigned at the date of termination of his employment by RSS (7 November 2008).
17. In any event, even if TUPE did not apply, the claimant would be entitled to continuity of employment because of the provisions of Article 14(2) of the 1996 Order
18. I am also satisfied that, at the date of termination of employment, the claimant had accrued holiday pay (in respect of untaken holidays) amounting to £264.
19. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 29 October 2009, Belfast.
Date decision recorded in register and issued to parties:
