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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Almoghrabi v Department for Employment and ... [2011] NIIT 01485_11IT (10 October 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01485_11IT.html Cite as: [2011] NIIT 1485_11IT, [2011] NIIT 01485_11IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1485/11
CLAIMANT: Ali Almoghrabi
RESPONDENT: Department for Employment and Learning
DECISION
The claimant’s appeal against the Department’s decisions is upheld. The parties are confident that they can agree the amount which is due from the Department. (If, contrary to those expectations, those discussions prove fruitless, a remedies hearing can be arranged at short notice.)
Constitution of Tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
The claimant appeared in person.
The respondent was represented by Mr P Curran of the Department.
REASONS
1. I announced my decision at the end of this hearing. I gave oral reasons for my decision at the same time. Accordingly, what follows is by way of summary only.
2. I was satisfied, on the balance of probabilities, that the claimant was an honest witness. He provided documentation which tended to support his factual contentions. (That documentation had not been available to the Department when the Department made its initial determinations in this case).
3. The claimant was employed by Ben Madigan Ltd in Derry/Londonderry, for several months during the year 2010. He resigned because that employer repeatedly failed to pay his wages. Ben Madigan Ltd has subsequently gone into liquidation. As a result of that liquidation, proceedings against Ben Madigan Ltd cannot be pursued without the leave of the High Court.
4. As the Department for Employment and Learning (“the Department”) point out, in their response to these proceedings, the claimant sought and was awarded a Default Decree in the Londonderry Recorders Court against Ben Madigan Ltd on 31 May 2011. However, at that point, the company had already been wound up by the High Court. Therefore, that decree is a nullity. Accordingly, there is no need for me to address the Department’s contention that this tribunal’s jurisdiction is affected by the fact that a Default Decree has been obtained in the County Court.
5. I am satisfied that the claimant was not paid any wages in respect of the months of September, October and November. I am also satisfied that he was only paid £866 of the £1,866 wages which he was due for the month of August 2010.
6. The parties have agreed that the claimant was entitled to receive 10.4 days holiday pay from the employer, which has not been paid.
7. The Department is the statutory guarantor in respect of notice pay and holiday pay, if the true debtor has gone into compulsory liquidation. In that connection, the claimant made an application to the Department pursuant to Article 227 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”). On the basis of the information and evidence then available to it, the Department decided not to make any payment to the claimant pursuant to Article 227. He appealed against that outcome. That appeal was made pursuant to Article 233 of the Order. This is my decision in respect of that appeal.
8. The outcome of the appeal is that I find that the Department ought to make the claimant payments under Article 227 of the Order, both in respect of wages and in respect of holiday pay.
9. Both parties have asked me not to make any declaration, at present, as to the amount of the payment which the Department ought to make. (See Article 233(3)(b) of the Order).
10. The parties intend to have urgent discussions, with a view to agreeing the amounts of any such payments If they do agree as to the amount of any such payments, there will be no need for a remedies hearing to be held in this case.
11. However, either party is welcome to request the holding of remedies hearing in this case, provided that any such request should not be made until on or after 17 October (by which time, 14 days will have elapsed from the date of this hearing).
Chairman:
Date and place of hearing: 3 October 2011, Belfast.
Date decision recorded in register and issued to parties:
