THE INDUSTRIAL TRIBUNALS

CASE REF:	2519/10

CLAIMANT:			Margaret Ann McCormick

RESPONDENT:	The Management Committee for the time being of Dromore Cross Community Pre-School Playgroup

DECISION 
The decision of the tribunal is that the claimant is entitled to payment of the sum of £1,085.22 in respect of notice pay.

Constitution of Tribunal:
Chairman (sitting alone):		Mr Uel A Crothers

Appearances:
The claimant did not appear and was not represented.

The respondent was represented by Mr G Russell, Former Treasurer.

The Claim

1.	The claimant’s claim was for a payment of a sum in respect of notice pay.

The Issue

2.	The issue before the Tribunal was as to whether the claimant was entitled to notice pay.

3.	Rule 27 of the Industrial Tribunal Rules of Procedure 2005 provides as follows:-

“(5) If a party fails to attend or to be represented (for the purposes of conducting the party’s case at the hearing under Rule 26) at the time and place fixed for such hearing, the Tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

	(6) If a Tribunal wishes to dismiss or dispose of proceedings in the circumstances described at paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.

	(7) At a hearing under Rule 26 the Tribunal may exercise any powers which may be exercised by a Chairman under these Rules”.

Findings of Fact

4.	Having considered the information before it in accordance with Rule 27 insofar as same was relevant to the issue before it, the Tribunal made the following findings of fact :-

(i)	The claimant had presented claim reference number 2519/10 to the Tribunal on 18 October 2010.  It appears that the respondent’s Treasurer, Gary Russell, did not receive a copy of the claim form with the correspondence forwarded to him on 26 October 2010 which stated that the notice pay claim had been accepted by the Tribunal but that the redundancy payment claim had been rejected.  On 8 November 2010 the claimant presented another claim to the Tribunal (2664/10) for a redundancy payment, which was accepted.  The respondent presented a response to that claim stating that it did not intend to resist the claimant’s claim for a redundancy payment.   A Default Judgment in the sum of £1,890.00 was subsequently made on 
7 February 2011.

(ii)	The respondent ceased to function on 1 September 2010, being the effective date of termination of the claimant’s employment.

	(iii)	In relation to the claimant’s claim for payments from the Department of Employment and Learning, Mr Russell furnished copy correspondence from the Department dated 13 October 2010 which reads as follows:-

“Employee: Margaret Ann McCormick

I refer to your letter of 12th October 2010.

I note that you have confirmed the playgroup closed on 1st September 2010.

For an employer to be accepted as part of the Financial Difficulty Scheme they must still be trading and still have other staff who they employ.

As the playgroup does not meet these criteria the Department cannot make payment from the National Insurance Fund to the above named former employee unless she has been awarded a tribunal decision in her favour in which case the redundancy element only of her claim could be paid.  Unfortunately, the information we have at present requires the Department to reject Ms McCormick’s claim.

If an employer is not legally insolvent the Department is obliged to recover any funds it may have paid in its role as statutory guarantor.  Therefore it may be beneficial for you to forward copies of the accounts and other financial information you mention in your letter in the event of the former employee applying to a tribunal.

If you have any queries regarding the matter please do not hesitate to contact me.

Yours sincerely

Neil Cruikshanks”

(iv)	The claimant was employed by the respondent from 13 April 2001 until 
1 September 2010.  The Tribunal is satisfied that there are no funds available to make any payments to the claimant.

The Law

5.	Remedies for breach of contract are found in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.  This Order also relates to a claim for the recovery of a sum arising or outstanding at the termination of the employee’s employment.

Conclusion

6.	The Tribunal is satisfied that the claimant is entitled to a sum by way of notice payment calculated on the basis of £120.58 x 9 = £1,085.22.	

	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	10 March 2011, Belfast.	

Date decision recorded in register and issued to parties: