THE INDUSTRIAL TRIBUNALS

CASE REF:	1661/10

CLAIMANT:			John Garvey

RESPONDENT:		Norlect Engineering (UK) Limited

DECISION
The decision of the tribunal is that the claimant’s claim for redundancy payment is dismissed.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Kinney

Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr Sheppard.

Issue

1.	The issue for the tribunal to determine is:-

“Whether the claimant is entitled to a redundancy payment from the respondent company.”

Facts found

2.	The claimant was employed by the respondent company as a store man from 24 October 1998 until 16 October 2009.  At this date he was 31 years old and had 10 full years continuous service with the respondent.  His weekly gross earnings were £320.00.  

3.	The claimant had written terms and conditions of employment which were reviewed from time to time.  In July 2009 his terms and conditions were reviewed to include a provision allowing for temporary lay-off and short-time working.  On 16 October 2009 the claimant received a letter from Mrs Sheppard the respondent company’s secretary confirming that he was laid-off on a temporary basis owing to the difficult economic climate.  He was told he would be contacted as and when circumstances changed.  

4.	The claimant did not dispute the lay-off but sought advice from the Citizens Advice Bureau.  On 13 November 2009 the Citizens Advice Bureau sent a letter, on the claimant’s behalf, to the respondent stating that:-

“We have been instructed by the above-named to draft this short letter serving notice of his intention to claim redundancy.”

5.	That letter was sent by post and date-stamped received by the respondent on 16 November 2009.  

6.	On receipt of this letter, Mrs Sheppard rang the claimant and offered him a position as sales assistant with an associated company of the respondent, Clanrye Electrical Supplies Ltd.  The respondent then sent a letter dated 17 November 2009 confirming the claimant’s discussions with Mr Stephen Sheppard, director of the company, and formalising the offer of alternative employment with Clanrye, to commence on 18 November 2009.  

7.	The claimant did not like the new employment as it involved more contact with the public and different hours of work.  A further letter was written by the Citizens Advice Bureau dated 10 December 2009 addressed to Norlect Engineering (the respondent) and stating:-

“I refer to the above and have been instructed by the above-named to draft this short letter giving one week’s notice of resignation.  The client therefore requests that all redundancy monies are forwarded without delay.”

This letter is date stamped as received by Norlect Engineering on 16 December 2009.  

8.	There was a dispute in the evidence as to the date on which the letter was received by the respondent, Norlect Engineering.  The claimant states that he handed the letter to Mr Sheppard in the Clanrye premises on 11 December 2009.  He states that Mr Sheppard threw this letter on the ground.  The claimant further contended that Mr Sheppard asked him to stay until the Christmas holidays.  There was no reason for why he should stay the extra period of time.  Mr Sheppard, in his evidence, contended that the letter was not handed to him but was received by post on 16 December 2009.  On the balance of probabilities I prefer the evidence of Mr Sheppard and I find that the letter of resignation was received on 16 December 2009.  In reaching this conclusion I have taken into account the following facts:-

(a)	The earlier letter of 13 November 2009 sent directly by the Citizens Advice Bureau had been sent by post and was date stamped as received by Norlect Engineering.  The second letter of 10 December 2009 is similarly date stamped as received by Norlect Engineering on 16 December 2009 and I considered on the balance of probabilities it was more likely that this letter was sent by post, consistent with the actions of the Citizens Advice Bureau on 13 November 2009.

(b)	The letter provides one week’s notice of resignation.  If it was received on 16 December 2009 then the one week’s notice would expire on 23 December 2009 which was the date the claimant in fact terminated his employment.  The claimant could provide no satisfactory reason for why either he was asked to stay on until 23 December 2009 or why he stayed on until 23 December 2009, having provided his letter of resignation in circumstances in which he felt that the employment was not suitable for him.

(c)	The claimant had in other matters been inconsistent in his evidence.  For example, there were differences in the extent of the trial period alleged by the claimant between four weeks and six weeks.

	The claimant left Clanrye Electricals on 23 December 2009 and did not return.

The law

9.	Article 107(1)(b) of the Employment Rights (Northern Ireland) Order 1996 (‘ERO’) provides in terms that an employer shall pay redundancy payment to an employee if the employee is eligible for a redundancy payment by reason of being laid-off or kept on short-time.  Under Article 183 of ERO an employee is eligible for a redundancy payment by reason of being laid-off if:-

“(a)	He gives in notice in writing to his employer indicating (in whatever terms) his intention to claim a redundancy payment in respect of      lay-off or short-time (referred to in this Part as ‘notice of intention to claim’), and –

(b)	before the service of the notice he has been laid-off or kept on short-time in circumstances in which paragraph (2) applies.

(2)	This paragraph applies if the employee has been laid-off or kept on short-time –

(a)	for four or more consecutive weeks of which the last before the service of the notice ended on, or not more than four weeks before, the date of service of the notice.”

10.	Article 185 provides:-

“(1)	An employee is not entitled to a redundancy payment by reasons of being laid-off or kept on short-time unless he terminates his contract of employment by giving such period of notice as is required for the purposes of this Article before the end of the relevant period.”

			The period of notice required for the purposes of this Article –

(a)	Where the employee is required by his contract of employment to give more than one week’s notice to terminate the contract, is the minimum period which he is required to give, and

(b)	otherwise, is one week.

		(3)	In paragraph (1) ‘the relevant period’ –

(a)	if the employer does not give a counter-notice within seven days after the service of the notice of intention to claim, is three weeks after the end of those seven days.”

11.	By Article 184:-

		“Where an employee gives to his employer notice of intention to claim but –

(a)	the employer gives to the employee, within seven days after the service of that notice, notice in writing (referred to in this Part as a ‘counter-notice’) that he will contest any liability to pay to the employee a redundancy payment in pursuance of the employee’s notice, and

(b)	the employer does not withdraw the counter-notice by a subsequent notice in writing, then the new employee is not entitled to a redundancy payment in pursuance of his notice of intention to claim except in accordance with a decision of an industrial tribunal.”

Tribunal’s conclusions

12.	I am satisfied that there was a statutory lay-off of the claimant by the respondent on 16 October 2009.  The respondent then complied with the provisions of Article 183 and the letter dated 13 November 2009 from the Citizens Advice Bureau constituted proper notice of the claimant’s intention to claim a redundancy payment.  At the time the notice was given to the respondent the claimant had been laid-off for four consecutive weeks.  However, the notice to claim a redundancy payment after lay-off does not terminate the employee’s contract.  The employee is not entitled to actual payment of a redundancy payment unless and until he terminates his contract.  This must be done strictly in accordance with Article 185.  He must give proper notice of termination being at least one week or longer if the contract so specifies.

13.	I do not consider that the respondent’s letter of 17 November 2009 constitutes a counter-notice under Article 184.  That provision requires the notice to state that the respondent is contesting any liability to pay a redundancy pay in pursuance of the employee’s notice.  

14.	The resignation provisions are contained within Article 185.  Under Article 185(1) an employee is not entitled to redundancy payment by reason of being laid-off unless he terminates his contract of employment by giving a period of notice as is required under this Article before the end of the relevant period.  The relevant period where the employer has not given a counter-notice is three weeks after the end of the seven days after the service of notice of intention to claim, as set out in Article 185(3).  This means in the current case that as a notice of intention to claim was given on 16 November 2009, the termination must be made by 14 December 2009 and must also provide the contractual period of notice.  In this case the claimant’s letter of termination was not received until 16 December 2009 outside that four week period and in any event did not hold the appropriate notice period required under the contract which was one week for every year of service worked.

15.	As the claimant’s employment did not terminate with the respondent on the service of the lay-off notice or by virtue of the claimant’s notice of intention to claim redundancy payment, I do not regard issues as to alternative suitable employment or trial periods to be relevant to the issue that I must decide.  The issue is whether, after serving a notice of intention to seek redundancy payment, the claimant then terminated his contract of employment within the time-limits set out in Article 185.  It is my conclusion that the claimant did not terminate his contract of employment within the terms of Article 185 and is therefore not entitled to a redundancy payment.

Chairman:

Date and place of hearing:	2 February 2011, Belfast

Date decision recorded in register and issued to parties: