THE INDUSTRIAL TRIBUNALS

CASE REF:	1124/11

CLAIMANT:			Mark Joseph Heaney

RESPONDENTS:		1. Abbey Insulation Services
				2. Sean Heaney
				3. Patrick Heaney
				4. Seamus Heaney

DECISION 
The decision of the tribunal is that the claimant is entitled to five weeks’ notice pay amounting to £1,296.95, to a redundancy payment of £1,668.75, to a sum of £259.39 in respect of a lying week and £51.88 in respect of an outstanding day’s wages, totalling £3,276.97.

Constitution of Tribunal:
Chairman (sitting alone):		Mr S A Crothers
	
Appearances:
The claimant appeared and represented himself.

The respondents did not appear and were not represented.  A response had been presented by the third-named respondent.

Title

1.	The title of the respondent is amended to that shown above.

Claim

2.	The claimant claimed that he had not received a redundancy payment of a notice payment.  He also claimed an amount for a lying week and one day’s wages.  The response presented to the tribunal indicated that the respondents would not be resisting the claim and would not be attending the hearing.

The Issues

3.	The issues before the tribunal were as follows:-

(1)	Whether the claimant is entitled to a sum in respect of notice pay, a lying week, and one day’s outstanding wages.

(2)	Whether the claimant is entitled to a redundancy payment.

Sources of Evidence

4.	The tribunal heard evidence from the claimant and considered relevant documentation including the response presented to the tribunal.

Findings of Fact

5.	Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i)	The claimant commenced employment with the first-named respondent on 
3 May 2005 and was employed until 24 January 2011, being the effective date of termination of his employment.

(ii)	The tribunal is satisfied that the claimant was made redundant by the first-named respondent and that he did not receive a redundancy payment or notice pay.  In addition he was owed an amount for a lying week and a days’ pay for 24 January 2011.

(iii)	The claimant’s date of birth is 17 May 1975.  His gross weekly wage was £333.75 (£259.39 net).

(iv)	The claimant presented his claim to the tribunal on 9 May 2011.

(v)	The tribunal is satisfied that the second, third and fourth-named respondent operated Abbey Insulation Services in partnership.

(vi)	Within 1-2 weeks from 24 January 2011 the claimant, together with a fellow claimant Kevin Joseph McGarry obtained advice to lodge redundancy claims with the Department for Employment and Learning.  The Department’s response, acknowledging the claim, dated 8 March 2011, indicated that it would take 6-8 weeks to investigate the matter.  Correspondence was received from the Department for Employment and Learning dated 12 April 2011 rejecting the claim for redundancy.  The claimant then contacted the tribunal office.  He had no clear recollection of events between 12 April 2011 and the presentation of his claim to the tribunal on 9 May 2011 which he signed on 6 May 2011.  His initial claim to the Department did not include claims for a lying week or notice pay.  At an unspecified point between 12 April 2011 and him signing his claim form on 6 May 2011, the claimant was advised by a friend to also claim for notice pay and for a lying week.  After being so advised he completed the claim form and presented it accordingly to the tribunal office.  

The Law
                                                                           
6.	(i)	Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-

“170. -	(1)	An employer shall pay a redundancy payment to any employee of his if the employee:-

a.	Is dismissed by the employer by reason of redundancy, …

			(2)	Paragraph (1) has effect subject to the following provisions of this Part (including, in particular, Articles 175 - 179, 184 - 187, 190 - 196 and 199).”

	(ii)	Article 180(5) of the Order provides as follows:-

		“Where  -

a.	the contract of employment is terminated by the employer;

b.	the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as defined by the previous provisions of this Article).

			For the purposes of Articles 23(3), 190 and 197(1) the later date is the relevant date.”

	(iii)	Article 180(6) provides that “the material date” means the date when notice of termination was given by the employer, or where no notice was given, the date when the contract of employment was terminated by the employer.

	(iv)	Article 197 of the Order provides for the amount of redundancy payment.

	(v)	The tribunal also considered the provisions in the Order relating to unlawful deductions from wages.

(vi)	The provisions in relation to breach of contract are contained in the Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”).  Under this Order an employee can bring a breach of contract claim in respect of a number of matters outstanding on the termination of his employment.  This can include a claim for a lying week or notice pay and, (where not otherwise governed by the unlawful deduction from wages jurisdiction in the Order), for arrears of pay.  

(vii)	Article 7 of the 1994 Order states as follows:-

“An Industrial Tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented –

(a)	within the period of three months beginning with the effective date of termination of the contract giving rise to the claim; or

(b)	why there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated; or

(c)	where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable”.

Conclusions

7.	Having applied the relevant principles of law to the findings of fact, the tribunal is satisfied that time should be extended under the 1994 Order and that the claimant is entitled to five weeks’ notice pay (£259.39 x 5) = £1,296.95 together with an amount of £259.39 in respect of a lying week. The claimant had five complete years of employment with the first-named respondent and is entitled to five weeks’ gross pay by way of redundancy payment (£333.75 x 5) = £1,668.75).  In addition, the claimant is entitled to the amount of £51.88 for outstanding wages.

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

Chairman:

Date and place of hearing:	25 July 2011 and 26 August 2011, Belfast.	

Date decision recorded in register and issued to parties: