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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McElherron v Larfran Industries LLP [2011] NIIT 01100_11IT (08 November 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01100_11IT.html Cite as: [2011] NIIT 01100_11IT, [2011] NIIT 1100_11IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1100/11
CLAIMANT: Gary McElherron
RESPONDENT: Larfran Industries LLP
DECISION
The unanimous decision of the tribunal is that the claimant is entitled to a statutory redundancy payment of £322.89. The tribunal does not have jurisdiction to entertain his unfair dismissal claim or breach of contract claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 and Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 respectively regarding the time limits for presenting claims. The claimant’s unfair dismissal and breach of contract complaints are dismissed.
Constitution of Tribunal:
Chairman: Ms M Bell
Members: Mr I Lindsay
Mr J McKeown
Appearances:
The claimant did not appear and was not represented.
The respondent did not appear and was not represented.
1. The claimant in his claim stated that he was employed by Mr Frank McKee and complained that he was unfairly dismissed, had not received sufficient notice and sought a redundancy payment of £322.89.
2. A response dated 26 May 2011 was entered signed by Mr McKee on behalf of Larfran Industries LLP indicating that Larfran Industries LLP is the correct respondent, that it did not contest the claimant’s claims and attached a copy of its letter of 28 December 2010 to the claimant.
3. Larfran Industries LLP was joined as a party to the proceedings on 12 August 2011.
4. The claimant wrote to the office of Industrial Tribunals on 12 September 2011 stating that he would be unable to attend the hearing and requesting that the hearing proceed in his absence.
5. The tribunal dealt with the proceedings under Rules 27 (5) and (6) of the Industrial Tribunal Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
6. The title to the proceedings are amended based on the findings set out herein from ‘Gary McElherron v 1. Frank McKee 2. Larfran Industries LLP’ to ‘Gary McElherron v Larfran Industries LLP.’
Issues
7. The issues for the Tribunal are:-
- Who is the correct respondent?
- Is the claimant entitled to a redundancy payment?
- Has the tribunal jurisdiction to entertain the claimant’s unfair dismissal complaint in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presentation of a claim?
- Has the tribunal jurisdiction to entertain the claimant’s breach of contract complaint in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limits for presentation of a claim?
Evidence
8. The Tribunal considered the claim, response, letter from the second named respondent to the claimant dated 28 December 2010 and letter from the claimant to the office of the Industrial Tribunal dated 12 September 2011.
Findings of Fact
9. The claimant was born on 31 July 1990. He commenced employment with the respondent on 1 September 2007 as manager of the respondent’s Subway sandwich shop at Bridgewater Park, Banbridge. The claimant was paid £215.26 gross per week being £185.76 net.
10. The claimant received a letter from the respondent dated 28 December 2010 informing him that his contract of employment would come to an end as of 5 January 2011, that it would cease trading on 31 December 2010 and that it had calculated that he was entitled to redundancy pay of £322.89.
11. The claimant did not receive his statutory minimum notice entitlement of termination of his employment by the respondent.
12. The claimant’s effective date of termination was 5 January 2011.
13. The claimant’s claim was presented to the industrial tribunal on 5 May 2011.
The Law
14. Article 170 of the Employment Rights (Northern Ireland) Order 1996 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. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include 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 for the purposes of which the employee was solely employed by him.
15. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.
16. Under Article 145(2) of the 1996 Order;-
“An industrial tribunal shall not consider a complaint [of unfair dismissal] unless it is presented to the tribunal –
(a) Before the end of the period of three months beginning with the effective date of termination; or
(b) Within such further period as the tribunal considers reasonable in a case where it is satisfied that it is not reasonably practicable for the complaint to be presented before the end of that period of three months.”
As set out in (b) the three month time limit may be extended. For the time limit to be extended the tribunal first must be satisfied that it is not reasonably practicable for the complaint to have been lodged within the three month limit. Secondly, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. It is clear that the tribunal must be satisfied on the issue of reasonable practicability before it considers whether the further period within which the claim is lodged was otherwise reasonable.
The onus to satisfy the tribunal that it was not reasonably practicable for the complaint to have been lodged within the three month limit is on the claimant.
17. Article 7 of the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 provides:-
“An industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented-
(a) Within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or
(b) Where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which is terminated, or
(c) Where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.”
Applying the Law to Facts Found
18. On consideration of all the evidence before it the Tribunal is satisfied on a balance of probabilities of the following:
Correct Respondent
19. The claimant’s employment was terminated by Larfran Industries LLP by its letter of 28 December 2010 and the tribunal finds that he was employed by Larfran Industries LLP. The proceedings against Mr Frank McKee are dismissed.
Redundancy Pay
20. The claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent having ceased trading and the claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows:-
3 years continuous employment x 0.5 x £215.26 = £322.89
Unfair Dismissal
21. The claimant’s unfair dismissal complaint was presented to the tribunal two months after expiry of the three month time limit beginning with the effective date of termination. There is no evidence before the tribunal from which it might be satisfied that it was not reasonably practicable for the complaint to have been lodged within the three month time limit nor indeed that the time within which it was in fact presented was reasonable. The tribunal accordingly does not have jurisdiction to entertain the claimant’s unfair dismissal complaint.
Breach of Contract
22. The claimant’s breach of contract claim for the respondent’s failure to give him sufficient notice was presented to the tribunal two months after expiry of the three month time limit beginning with the effective date of termination. There is no evidence before the tribunal from which it might be satisfied that it was not reasonably practicable for the complaint to have been lodged within the three month time limit nor indeed that the time within which it was in fact presented was reasonable. The tribunal does not have jurisdiction to entertain the claimant’s breach of contract complaint.
Conclusion
23. The unanimous decision of the tribunal is that the claimant is entitled to a statutory redundancy payment of £322.89, but that the tribunal does not have jurisdiction to entertain his unfair dismissal claim or breach of contract claim in view of the provisions regarding the time limits for presenting such claims. The claimant’s unfair dismissal and breach of contract complaints are accordingly dismissed.
24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 October 2011, Belfast.
Date decision recorded in register and issued to parties:
