THE INDUSTRIAL TRIBUNALS

	CASE REF:  1464/10

CLAIMANT:                               	Joseph Ramos

RESPONDENT:                         	Mr Dermot Mc Larnon

DECISION

The decision of the tribunal is that the claimant is awarded £1,920.23, being the amount of a redundancy payment due to him.

Constitution of Tribunal:	

Chairman (sitting alone):		Mr Palmer

Appearances:  	

The claimant represented himself.

The respondent did not appear.  He did not enter an appearance to the proceedings and was not, by virtue of rule 3 (4) of the Industrial Tribunals Rules of Procedure, entitled to take part in the proceedings.

Order of 11 August 2010

1.  	On 11 August 2010 it was ordered that this case and the case of Julius Nagy v Dermot Mc Larnon t/a O’Neill Arms Hotel (Case Ref; 1151/10) be considered and heard together.  A separate decision will be issued in Mr Nagy’s case.

The Claim

2.  	The only claim being made is in respect of a redundancy payment.

Evidence

3.  	The claimant gave evidence and also produced a number of documents.

Findings of Fact

4.  	The claimant, who was born on 1 January 1957, was employed by the respondent as a chef at the O’Neill Arms Hotel, from the end of January 2005 until he was abruptly dismissed on 18 January 2010.  On that date the claimant was called to the respondent’s office where the respondent told him that he would be ceasing to trade on that day.  The respondent then handed the claimant a letter (which was dated 18 January 2010) stating inter alia,

“Further to the meeting which took place on 18 January 2010, I now write formally to confirm that your employment is being terminated by reason of redundancy and you will leave our employment on 18 January 2010.

As you will no doubt be aware, the trading performance of the hotel has been disappointing for a sustained period and the hotel has been making losses for a significant period of time as a result of this.  We now find ourselves in the position where these losses cannot be funded any longer and, regrettably, we have no choice other than to close the hotel.  Unfortunately, a consequence of this is that all employees of the hotel are being made redundant.”

5.  	The claimant wrote to the respondent, on 23 February 2010, claiming a redundancy payment in respect of his period of employment, and did not receive a reply.  He lodged his claim for a redundancy payment on 1 June 2010.  The claimant, therefore, satisfies the provisions of both Article 199(1) (b) and Article 199 (1) (c) of the Employment Rights (Northern Ireland) Order 1996 (the Order of 1996).  Article 199(1) provides as follows:

“An employee does not have the right to a redundancy payment unless, before the end of a 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.”

The Statutory Grievance Procedures

6.	(1)	I consider that the claimant’s letter of 12 February 2010 would have been sufficient to trigger the standard statutory grievance procedure, had that procedure applied.

 	(2) 	The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (the Regulations of 2004), state, insofar as relevant, that, ”Neither of the grievance procedures applies where the grievance is that the employer has dismissed…..the employee.”

 	(3)  In Allen v Murdoch UKEAT/0369/09, a GB case decided by the Employment Appeal Tribunal (the EAT), it was held that, for the purposes of the grievance procedure, no distinction can properly be drawn between an unfair dismissal and a redundancy dismissal and that, therefore, a redundancy dismissal, like an ‘ordinary’ dismissal, is excluded from the grievance procedures by virtue of the GB provision which is in the same terms as regulation 6(5) of the Regulations of 2004.  I consider that I should follow this case and, therefore, there will be no enhancement of any award made to the claimant.

	(4) 	In the Allen case the claimants (of which there were three) claimed unfair dismissal, redundancy payments, holiday pay and unpaid wages.  The question arose as to whether the latter three claims were justiciable, as the statutory grievance procedure had not been followed.  The claim in Allen, relevant to the proceedings before me, is the redundancy one. The question before the EAT is set out in the judgement at paragraph 18,as follows:

“Thus the question, it seems to me, is whether any or all of the three rejected claims [the claims had been rejected by the Employment Judge under the equivalent to the provision contained in Article 19(3) of the Employment (Northern Ireland) Order 2003] fall within the rubric of reg. 6(5): is the claimants’ grievance that the employer dismissed them, such that the statutory grievance procedure requirements are disapplied.”

	(5)  	- At paragraphs 20 and 21 it is stated:

“20.  The right to a redundancy payment arises, under s.135 (1) (a) [the equivalent to Article 170(1) (a) of the Order of 1996], where an employee is dismissed by the employer by reason of redundancy and dismissal for this purpose is defined in s. 136(1) [Article 171(1)] in the same terms as it is for unfair dismissal in s. 95(1) of the ERA [Article 127(1)].  In the present case the Claimants contend that they were dismissed when the public house at which they worked suddenly closed.  There was no longer a requirement for employees to work behind the bar.  They were redundant within the meaning of s. 139(1) [Article 174(1)].

21.  In these circumstances, it seems to me, no distinction can properly be drawn between an actual unfair dismissal and an actual redundancy dismissal for the purposes of reg. 6(5).  In both situations the Claimant’s grievance is about her dismissal.”

Conclusions on the Findings of Fact

7.  	I am satisfied, on the basis of the claimant’s evidence and the letter, dated 18 January 2010, that he was made redundant by the respondent on 18 January 2010 and so find.  

8.  	Article 198(1) and (2) of the Order of 1996 provides that any question arising as to the right of an employee to a redundancy payment shall be referred to and determined by an industrial tribunal and for the purposes of such a reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.

9.  	Independent of my finding above on the basis of the claimant’s evidence and the letter of 18 January 2010, I further conclude, on the basis that the statutory presumption referred to above has not been rebutted, that the claimant was made redundant by the respondent on 18 January 2010.

Amount of the Redundancy Payment

10.  	At the date of termination the claimant was aged 53.  His gross wage was £256.03 per week.  The claimant was not given the four weeks’ notice to which he was entitled under Article 118 of the Order of 1996.  Therefore, by virtue of Article 180(5) and (6) of the 1996 Order the termination date is read forward by the four weeks, which means that, for the purposes of this calculation, the date of termination of the contract of employment is 1 February 2010.  The claimant was aged 53 at termination on 1 February 2010 and, under the provisions of Article 197 of the Order of 1996, is entitled to 1 ½ weeks’ gross pay for each of his five completed years of service.  I, therefore, award the claimant £1,920.23 in respect of the redundancy payment.

11.	This is a relevant decision for the purposes of the Industrial tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing:  24 August 2010, Belfast.

Date decision recorded and issued to parties: