McWilliams v John & MArtina McFeely t/a Hil... [2012] NIIT 02574

THE INDUSTRIAL TRIBUNALS

CASE REF: 2574/11

CLAIMANT: Gerard Francis McWilliams

RESPONDENT: John & Martina McFeely t/a Hillcrest Metal Partitions

DECISION

The claimant is entitled to a redundancy payment, the respondents shall pay the claimant £5,400.00. The tribunal does not have jurisdiction to entertain the claimant’s claims in respect of breach of contract, unlawful deduction of wages or holiday pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Regulation 30 (2) of the Working Time Regulations (Northern Ireland) 1998 respectively regarding the time limits for presenting such claims. The claimant’s claims for pay in lieu of notice, arrears of pay, mileage, expenses and holiday pay are accordingly dismissed.

Constitution of Tribunal:

Chairman (Sitting alone): Ms M Bell

Appearances:

The claimant appeared in person.

The respondents did not appear and were not represented.

1. The claimant in his claim complained that he had not received a redundancy payment, pay in lieu of notice, arrears of pay, holiday pay, mileage and expenses due to him on termination of his employment.

2. No response was presented by the respondents.

Issues

3. The issues before the tribunal were:

- Is the claimant entitled to a redundancy payment?

- Has the tribunal jurisdiction to entertain the claimant’s claims for notice pay, arrears of pay, mileage, expenses and holiday pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Regulation 30 (2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting such claims? That is,

- Were the claims presented in time? If not,

- Was it not reasonably practicable for the claims to be presented in time? If so,

- Were the claims presented within such further period as the tribunal considers reasonable?

If so,

- Is the claimant entitled to pay in lieu of notice, arrears of pay, mileage, expenses and holiday pay?

Evidence

4. The tribunal considered the claim, documentation provided by the claimant and heard oral evidence from the claimant. The tribunal also considered correspondence subsequently received from the claimant dated 9 February 2012.

Findings of Fact

5. The claimant who was born on 11 August 1966, commenced employment with the respondents as a quantity surveyor on 1 November 1998. The claimant was paid £3333.30 gross per month, being £2460.15 net.

6. The claimant’s employment was terminated by Mr John McFeely on 13 May 2011 as a result of a downturn in available work in the construction industry and was told that he could leave immediately. The claimant’s effective date of termination was 13 May 2011.

7. The last payment the claimant received from the respondents was at the end of May 2011, no payment was made in lieu of notice, arrears of pay, mileage, expenses and holiday pay accrued due.

8. The claimant at his wife’s suggestion sought advice by telephone from the Labour Relations Agency around the beginning of October 2011 when despite assurances from Mr McFeely that the matter would be sorted out no payment had been made to the claimant. The claimant was advised to get and complete an ET1 form for submission to the office of the tribunals within six months from termination of his employment to claim a redundancy payment. The claimant gave evidence that he did not consider seeking advice any earlier, that the respondent’s business was a small family firm and did not have any human resources department for him to speak to, that he was not aware that a three month time limit for the presentation of claims arising from a breach of contract or in relation to holiday pay normally applies and assumed that the six month time limit for a redundancy payment claim also applied to his claims for pay in lieu of notice, arrears of pay, holiday pay, mileage and expenses due to him on termination of his employment .

9. The claimant presented his claim to the office of tribunals on 12 October 2011.

The Law

10. 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 and include if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.

11. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.

12. Under Article 23 of the 1996 Order as amended at the time of the claimant’s dismissal, for the purpose of calculating a redundancy payment the amount of a week’s pay shall not exceed £400.00.

13. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment subject to the time limits set out in Article 7. Whilst longer time limits usually apply for bringing a breach of contract claim in the civil courts, an Industrial Tribunal, under Article 7, shall not however entertain a contract claim unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the applicable period, within such further period as the tribunal considers reasonable.

14. Article 55 of the Employment Rights (Northern Ireland) Order 1996 provides that a worker may complain to a tribunal in respect of unlawful deduction of wages. Article 55 (2) states that a tribunal shall not consider such a complaint unless it is presented before the end of three months beginning with the date of payment of wages in which the date when payment was received. However, under Article 55 (4) where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

15. The Working Time Regulations (Northern Ireland) 1998 provide for a worker to have minimum leave in a year and for an employer to on termination of employment to make a payment in lieu of leave accrued due but not taken. However, under Regulation 30 (2), an Industrial Tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the date on which it is alleged the payment should have been made, or, within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable to be presented before that period of three months.

Applying the Law to Facts Found

16. On consideration of all the evidence before it the tribunal is satisfied of the following:

Redundancy Payment

17. Based on the claimant’s undisputed oral and documentary evidence, the claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondents’ requirement for employees to carry out work of a particular kind having diminished. On termination of his employment the claimant had twelve complete years of service, during three of which he was not below the age of 41. Accordingly the claimant is entitled to a redundancy payment calculated in accordance with Articles 23 and 197 of the 1996 Order as follows;

3 years continuous employment x 1.5 x £400.00 = £1,800.00

9 years continuous employment x 1 x £400.00 = £3,600.00

Total £5,400.00

Notice, Pay Arrears, Mileage, Expenses and Holiday Pay

18. The claimant’s claims for pay in lieu of notice, pay arrears, mileage, expenses and holiday pay accrued due were received by the Office of the Industrial Tribunals outside the time limit of 3 months set out under Article 7 of the 1994 Order, Article 55 of the 1996 Order and Regulation 30 (2) of the 1998 Regulations on 12 October 2011, almost five months after 13 May 2011 the claimant’s effective date of termination and more than four months after the date of the final payment made by the respondent to the claimant and so were received out of time. Accordingly the tribunal must decide whether it was not reasonably practicable for the claimant to present his breach of contract and or unlawful deduction of wages claims for pay in lieu of notice, pay arrears, mileage, expenses and holiday pay claim to the tribunal within the applicable 3 month time limits, and if satisfied of this, whether the claims were then presented within such further period as the tribunal considers reasonable.

19. It is the claimant’s duty to show precisely why it was that he did not present his complaint in time. The tribunal notes that the claimant did not seek advice as to his rights until more than four months after his employment ended, when he did so from the Labour Relations Agency in early October 2011 and presented his claim approximately one week later. The claimant gave evidence that nothing prevented him from presenting his claim to the tribunal earlier save his lack of knowledge of the applicable time limits, that he did not consider seeking advice earlier and that the respondent’s business was a small one and so there was no human resources for him to speak to. The claimant in his correspondence of 9 February 2012 indicated that the respondent had verbally assured him that monies owed would be paid hence he did not have cause to make a claim within three months. Ignorance of one’s rights will rarely be an acceptable reason making it not reasonably practicable for not presenting a claim in time. A claimant is generally expected to make suitable enquiries as to their rights, ignorance of the time limits for submission of a claim to the Industrial Tribunal will rarely be acceptable as a reason for delay and a claimant generally aware of their rights is then under an obligation to seek information and advice about how to enforce them. There is no evidence before the tribunal that the respondents expressly requested the claimant delay in presenting a claim and that there were negotiations ongoing which would otherwise have broken down. The tribunal notes that the claimant appears to be an intelligent man and that on his own evidence nothing prevented him presenting his claim in time save his ignorance of the applicable time limits. The tribunal considers that there is no evidence before it upon which it is persuaded that it was not reasonably practicable for the claimant to present his claims for notice, pay arrears, mileage, expenses and holiday pay within the required time limit of three months and finds that it accordingly does not have jurisdiction to entertain these claims in view of the provisions of Article 7 of the 1994 Order, Article 55 of the 1996 Order and Regulation 30 (2) of the 1998 Regulations respectively regarding the time limits for presenting such claims.

Conclusion

20. The claimant is entitled to a redundancy payment under Article 170 of the 1996 Order from the respondent of £5,400.00. The tribunal does not have jurisdiction to entertain the claimant’s claims in respect of breach of contract, unlawful deduction of wages or holiday pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Regulation 30 (2) of the Working Time Regulations (Northern Ireland) 1998 respectively regarding the time limits for presenting such claims. The claimant’s claims for pay in lieu of notice, arrears of pay, mileage, expenses and holiday pay are accordingly dismissed.

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

Chairman:

Date and place of hearing: 7 February 2012, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McWilliams v John & MArtina McFeely t/a Hil... [2012] NIIT 02574_11IT (24 February 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/02574_11IT.html Cite as: [2012] NIIT 02574_11IT, [2012] NIIT 2574_11IT

Industrial Tribunals Northern Ireland Decisions