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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Clarke v Department for Employment and ... [2012] NIIT 01352_11IT (05 March 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/01352_11IT.html Cite as: [2012] NIIT 01352_11IT, [2012] NIIT 1352_11IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1352/11
CLAIMANT: Niall Daniel Clarke
RESPONDENT: Department for Employment and Learning
DECISION
(A) Irish Spars and Rigging Ltd (“the Old Company”) is not liable to pay a redundancy payment to the claimant.
(B) Pursuant to Article 205 of the Employment Rights (Northern Ireland) Order 1996, I determine that Irish Spars and Rigging (2011) Ltd (“the New Company”) is liable to pay a redundancy payment to the claimant.
(C) I determine that the amount of the New Company’s liability, in respect of that redundancy payment, is £5,200.
(D) All of the claimant’s other appeals are dismissed
Constitution of Tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
The claimant appeared in person.
The respondent Department was represented by Mr N Cruickshanks.
REASONS
1.
At the conclusion of the hearing,
I announced my decision. At the same time I gave oral reasons for that
decision. Accordingly, what follows is by way of summary only.
2.
In these proceedings, the claimant
makes claims against the Old Company and against the New Company, in their
capacity as the claimant’s employer (“Employer”).
3. In these proceedings, the claimant also appeals against decisions which the Department made (in the Department’s role as the statutory guarantor in respect of certain employment debts), in response to applications which he had made to the Department.
4. A main hearing was held in this case, on the date specified below. That main hearing dealt only with the appeals. This is my decision only in respect of those appeals.
5. First, the claimant applied to the Department for a payment in respect of the amount of a redundancy payment which was allegedly due to him from the Employer.
6.
I was satisfied that the claimant
was employed by the Old Company from May 1998. (I was satisfied that he made a
mistake, in his claim forms, in referring to May 1997 as the relevant date of
commencement of employment). I was satisfied that his employment with the
Employer came to an end because of redundancy. I was satisfied that it came to
an end in March 2011 and that he was then dismissed. I was satisfied that the
claimant was given no notice of his dismissal.
7. I was satisfied that a “relevant transfer”, within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006, occurred in March 2011 and that the claimant’s contract of employment with the Old Company was thereby transferred to the New Company. In arriving at that conclusion, I took particular account of the following. After the putative relevant transfer, most of the employees who had been working in the Old Company were allocated jobs by the New Company. The New Company used a work van which the Old Company had used. The New Company operated from the same premises as those from which the Old Company had operated.
8.
I calculated the claimant’s
redundancy payment on the basis of the statutory maximum of £400 per week, the
claimant’s age (he was aged less than 41 years of age at the time of
termination of his employment) and his length of service (he was employed by
the Employer for more than 13 years, but less than 14 years).
9. I was satisfied that the claimant was entitled to approximately £348 net per week at the time of his dismissal.
10. In these proceedings the claimant also appeals against the Department’s decisions in respect of his wages, holiday pay and notice pay applications to them. Those “other appeals must be dismissed. (The New Company is not “insolvent” within the meaning of the relevant provisions of the Employment Rights (Northern Ireland) Order 1996; accordingly, in its role as statutory guarantor, the Department has no power to make payments in respect of wages, holiday pay or notice pay).
11. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 29 February 2012, Belfast.
Date decision recorded in register and issued to parties: