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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McDonald v Window Fixing & Maintenance Li... [2012] NIIT 02791_11IT (23 February 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/02791_11IT.html Cite as: [2012] NIIT 02791_11IT, [2012] NIIT 2791_11IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2791/11
CLAIMANT: Ian McDonald
RESPONDENT: Window Fixing & Maintenance Limited
DECISION
The decision of the tribunal (Chairman Sitting Alone) is that the claimant is awarded redundancy pay in the sum of £8,190.
Constitution of Tribunal:
Chairman (Sitting Alone): Ms J Knight
Appearances:
The claimant appeared and was represented by Mr P Moore LLB of PM Associates.
The respondent company was represented by Mr Brian Davison, Managing Director, accompanied by Mr Conor McCarthy.
ISSUE
1. The issue to be determined was whether the claimant was eligible to receive a redundancy payment in accordance with Article 183 of the Employment Rights (Northern Ireland) Order 1996. The claimant’s claims for holiday pay and “other unpaid amounts” were dismissed following their withdrawal by the claimant at the outset of the hearing.
EVIDENCE
2. The tribunal (Chairman Sitting Alone) heard the oral evidence of the claimant, Mr Ian McDonald, and of Mr Brian Davison of the respondent. The chairman considered documentary evidence to which she was referred during the hearing.
3. The following facts were agreed by the parties at the hearing:-
(1) The claimant had 19 years’ continuous service with the respondent from 24 August 1992 until the effective date of termination on 26 September 2011. At the effective date of termination the claimant’s weekly gross pay was £341.25 at which date the claimant was 51 years old.
(2) Mr Davison, Managing Director of the respondent company gave the claimant a letter on 3 August 2011 advising him that from that date he was being temporarily laid off as per his contract of employment but that the respondent was confident of securing further work at which stage the claimant would be offered a start back to work date.
(3) The claimant wrote to Mr Davison on 12 August 2011 requesting confirmation that he would be offered 13 weeks’ continuous employment when he was to be given a start back date. The respondent replied by letter dated 16 August 2011 confirming that the respondent was aware of the current lay off legislation and would adhere to these procedures.
(4) The claimant sought advices from the Labour Relations Agency about his position and wrote again to the respondent on 19 September 2011 stating:-
“With regards to your letter of 3 August 2011 advising me of my lay-off, I hereby give you one week’s written notice of my resignation of employment from WFM Ltd. I wish to claim any and all outstanding amounts owed to me, to include redundancy pay, notice pay and any outstanding wages.”
(5) The respondent replied by letter dated 20 September 2011 accepting the claimant’s resignation, confirming his final date of employment as 28 September 2011 and that the claimant was not required to work his notice period. The letter advised that “any monies due will be paid into your bank account”.
(6) The respondent disputed that the claimant was entitled to a redundancy payment. The respondent’s understanding of advices displayed on government websites, was that the claimant was obliged to serve a notice of intention to claim a redundancy payment separate from, and then wait for one week before tendering, his resignation. The respondent did not seek legal advice as to whether this interpretation of the legislation was in fact correct. The respondent did not serve any counter notice on the claimant disputing his entitlement to a redundancy payment.
LAW
4. The relevant provisions relating to the right to a redundancy payment by way of lay off are contained in Articles 182 to 189 of the Employment Rights (NI) Order 1996. An employee may claim a statutory redundancy payment if he is laid off for the requisite number of weeks set out in the legislation. An employee is required to serve written notice on his employer of his intention to claim a redundancy payment and properly terminate his contract of employment by giving at least one calendar week’s notice (or such longer period as is specified in the contract of employment). The notice may be served on the last day of the last week of the period of lay off relied upon, or alternatively, after the last day of that week but not more than four weeks afterwards. A redundancy payment is only payable where the contract of employment has been terminated. Further, there must be no reasonable expectation of a resumption of normal working but this condition only applies where the employer has served a counter notice on the employee in accordance with Article 184 of the Order contesting the claim in the notice of intention to claim a redundancy payment. The counter notice, resisting the claim, should be in writing and served within a week of receipt of the notice of intention to claim. The only defence open to an employer who has not served a counter notice is that the employee has not complied with all of the statutory conditions.
5. The written notice of intention by the employee is effectively the claim for a redundancy payment. An employee may give notice of termination of the employment contract before or at the same time as giving notice of his intention to claim a redundancy payment. The notice to terminate the employment may be included in the notice to claim a redundancy payment. (Walmsley v C&R Ferguson Ltd 1989 IRLR 112).
CONCLUSION
6. It was accepted by the parties in the present case that the claimant had been laid off within the meaning of Article 182 of the Order for more than four consecutive weeks. The respondent accepted that the claimant’s letter of 19 September 2011 gave one week’s notice of his intention to resign but disputed that it also constituted valid notice to apply for a redundancy payment. It is clear from the wording of the claimant’s letter of 19 September 2011 that he gave the respondent express written notice of his intention to claim a redundancy payment in compliance with Article 183 of the Order and at the same time satisfied the requirement of giving one week’s notice of his resignation within the relevant period specified in Article 185 of the Order. The respondent’s belief that the claimant was required to serve a notice of intention to claim, separate from his notice of resignation, was mistaken. The respondent did not serve a counter notice. The claimant has complied with all of the statutory conditions for claiming a redundancy payment. Therefore the claimant is entitled to a redundancy payment of £8,190 calculated as follows:-
£341.25 (gross pay) x 10 years service x 1.5 (age multiplier) £5,118.75
PLUS
£341.25 (gross pay) x 9 years service x 1 (age multiplier) £3,071.25
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 17 January 2012, Belfast.
Date decision recorded in register and issued to parties:
