Waring v Burns [2008] NIIT 2049_07IT (16 April 2008)

2049_07IT Waring v Burns [2008] NIIT 2049_07IT (16 April 2008) [ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Industrial Tribunals Northern Ireland Decisions You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Waring v Burns [2008] NIIT 2049_07IT (16 April 2008) URL: https://www.bailii.org/nie/cases/NIIT/2008/2049_07IT.html Cite as: [2008] NIIT 2049_7IT, [2008] NIIT 2049_07IT [ New search ] [ Printable RTF version ] [ Help ] THE INDUSTRIAL TRIBUNALS CASE REF: 2049/07 CLAIMANT: Gwendoline Mary Waring RESPONDENT: Mr & Mrs Edmund Burns DECISION The claimant was dismissed without notice on 17 July 2007 because she was redundant on that date. The Tribunal declares the claimant is entitled to a redundancy payment in the amount of £3451.50. The claimant is also entitled to pay in lieu of notice in the amount of £2124.00. Constitution of Tribunal: Chairman: Mr M O'Brien Members: Mrs Gilmartin Mr Hanna Appearances: The claimant was represented by Mr A White, USDAW Union. The respondents did not appear and were not represented. Sources of Evidence The claimant gave evidence and referred to corroborative documentation. The Assertions of the Parties By her claim, dated 29 November 2007, the claimant asserted at section 3.5 that she had put her complaints to the respondents on 11 September 2007 and 26 October 2007. At section 4, the claimant asserted that she had been employed since March 1994 as a sales assistant, earning £177.00 gross per week: £146.91 nett for a 30 hour week. The claimant asserted she had not received her notice pay. At section 7 of the claim, the claimant asserted she was dismissed on 17 July 2007 without notice, and that she had written twice, without response, requesting notice pay and a redundancy payment. At section 8.3 of the claim, the claimant asserted that she was taken into the office on 17 July 2007 and informed by Mr Burns that the business in which she was employed was in financial difficulty and that she and the other employees were to have their employments ended immediately. By their response, presented on 14 January 2008, the respondents agreed at section 3 that the claimant had been an employee and that she had been dismissed for a reason unconnected with conduct or capability, and that she had raised the issue of her dismissal by way of a grievance. At section 3.6 of the response, the respondents stated that they had taken over the business on 15 June 2005 and had raised a bank loan of £50,000.00 to finance this transfer of undertaking. The respondents stated that they had continued to employ the staff of the previous owner, Mrs Darling. The respondents stated that they were advised that for the financial year ending 2006, the business had lost £26,000, and for the financial year ending had lost £25,000.00, without repayments being made on the loan. The respondents asserted that they had explained the seriousness of their situation to the claimant, and that she had asserted that she was not interested in payment, and offered to work for nothing if necessary. The respondents expressed regret that this situation had arisen, and the expectation that they would not be on the site for much longer. However, the respondents disputed that they had asked the claimant to leave with immediate effect on 17 July 2007. At section 4.2, the respondents asserted the claimant had been employed since 15 June 2005 – 17 July 2007, and that they had understood that the claimant was an employee of the transferor, Mrs Darling, on a casual basis. At section 4.7 of the response, the respondents acknowledged that the claimant's hours of work are correct, as were her earnings. At section 6.1 of the response, the respondents stated that they did not intend to resist the claim. Findings of Fact The claimant was employed as a sales assistant in the Glen Service Station, 88 Ballyclare Road, Glengormley. She started her employment in or about March 1994. From the commencement of her employment onwards, the claimant worked 30 hours per week, and this employment was not on a casual basis. The former owner of the service station was Mrs Darling, who sold the business to the respondents with effect from 15 June 2005. The claimant's employment status was unaffected by the transfer of the undertaking to the respondents, and her employment thus continued until it was ended on 17 July 2007 by way of redundancy. The wages clerk was Mr A Braidner, and the Tribunal received in evidence a brief statement from Mr Braidner to corroborate that the claimant had been continuously employed at the service station from March 1994 – June 2005 and thence to 17 July 2007. Moreover, the Tribunal received evidence of the claimant's payslips when she was employed by Mrs Darling, which showed that she was earning £177.63 per week on 2 December 1999. No written particulars of employment were ever issued the claimant. However, the Tribunal is entirely satisfied with the claimant's credibility as a witness, which evidence was amply corroborated by documentary evidence, and readily finds as a fact that she was employed continuously from March 1994 to 17 July 2007 as a sales assistant. We further find that the claimant worked 30 hours per week throughout the period of her employment, which from March 1994 – 15 June 2005 was steady and not merely casual. There was a relevant transfer of the undertaking to the respondents with effect from 15 June 2005, and this transfer did not alter or vary the claimant's employment status. Thereafter, the claimant worked 7-11am six days a week, and 7am – 1pm on Sundays. After the transfer of the business on 15 June 2005, the claimant continued to earn the same wages from the respondents. The Tribunal received in evidence ample documentary corroboration of this. These itemised pay statements show the claimant continued to earn £177.00 gross per week: £145.80 nett per week. On 17 July 2005, Mr Edmund Burns called the claimant into the office at 10.45am. The claimant was on her normal shift. Mr Burns stated that the news he had to give the claimant was one of the most difficult pieces of information he had ever had to impart. However, Mr Burns informed the claimant that he had to terminate the employment of all the employees of the business, because the business was not doing well financially. Mr Burns explained that Mrs Burns and her family would cover the employees' shifts, and that he foresaw the bank foreclosing on the loan the respondents had raised. Mr Burns stated that he required the claimant to finish her shift and thus end her employment at 11am on 17 July 2007, which the claimant did. The claimant then handed in her keys. The other employees of the respondents also had their employments ended on 17 July 2007. The claimant said that, at the age of 64, she was sorry for the financial plight of the respondents, and that if they required anyone to help out that they should give her a ring. The Tribunal finds as a fact that the claimant did not offer to work for nothing, or state that she was about to retire. Mr Burns stated that the claimant was entitled to a redundancy payment, but did not state when he would pay this payment. The claimant received her pay to 17 July 2007 and outstanding holiday pay. After 17 July 2007, the claimant called on Mrs Burns six times to enquire about her redundancy payment. On each occasion, Mrs Burns stated that Mr Burns would be in contact with the claimant. However, the Tribunal finds that Mr Burns has not contacted the claimant since 17 July 2007. Frustrated by the delay in paying her redundancy payment, the claimant wrote to Mr and Mrs Burns on 11 September 2007 stating that she was entitled to (i) 12 weeks pay in lieu of notice, and (ii) 18 weeks statutory redundancy payment, and further requesting her P45. The claimant hand-delivered this letter. The claimant collected her P45 on 12 October 2007. The claimant wrote to Mr and Mrs Burns again on 26 October 2007, in the same terms as her letter of 11 September 2007. However, she never received the redundancy payment or the pay in lieu of notice. The relevant date of the redundancy is 17 July 2007. The claimant's entitlement to notice pay is 12 weeks x £177.00 = £2124.00 The claimant's entitlement to redundancy payment is 13 x 1.5 x £177.00 = £3451.50. The Issues to be Decided Whether the claimant is entitled to the following; i. Payment in lieu of notice – 12 weeks x £177.00 per week = £2124.00; and ii. Redundancy payment – 13 x 1.5 x £177.00 per week = £3451.50 Applicable Law The applicable law in respect of the claimant's claims is provided by the following: (a) Article 118 of the Employment Rights (NI) Order 1996 ["the 1996 Order"] provides that an employee is entitled to notice of termination of his employment, up to a maximum of twelve weeks if that employment is twelve years or more. (b) Article 118(3) of the 1996 Order provides that this entitlement may be waived and paid in lieu of notice. (c) Article 170 of the 1996 Order provides that an employee has the right to receive a redundancy payment if his employment is terminated by reason of redundancy. (d) Article 171 of the 1996 Order provides that a dismissal is by reason of redundancy where the employee's contract of employment is terminated by the employer (whether with or without notice). (e) Article 174 of the 1996 Order sets out the circumstances under which a termination of employment can be attributed to redundancy. (f) In establishing a redundancy payment calculation, the Tribunal is required to establish the "relevant date" pursuant to Article 180 of the 1996 Order. (g) Article 197 of the 1996 Order provides the formula of calculation of a redundancy payment. The Decision of the Tribunal The Tribunal emphasises that, before it made the decision set out below, it considered in full all the parties assertions as set out in the claim and the response, the oral and documentary evidence before it, and Mr White's submissions. The claimant had 13 full years of continuous employment service when her employment was terminated on 17 July 2007 without notice by the respondents. On that date, she was aged 64 years. Pursuant to Article 180 of the 1996 Order, the relevant date is 17 July 2007. Pursuant to Articles 170 – 171, the termination of the claimant's employment on 17 July 2007 was because she was redundant on that date. Pursuant to Article 174(1) (b) (ii) of the 1996 Order, the claimant's employment was terminated on 17 July 2007 because the respondents' requirements for the claimant's services had or were expected to diminish or cease. Accordingly, pursuant to Article 170 of the 1996 Order, the claimant is entitled to a redundancy payment. The claimant has never received this payment from the respondents. The Tribunal therefore declares the claimant is entitled to the redundancy payment set out below. Pursuant to Article 197 of the 1996 Order, the claimant's redundancy payment is as follows: 13 x 1.5 x £177.00 = £3451.50 . The claimant did not receive notice on 17 July 2007 when she was dismissed. Accordingly, pursuant to Article 118 of the 1996 Order, the Tribunal declares and orders the claimant is further entitled to 12 weeks pay in lieu of notice. The claimant's entitlement to pay in lieu of notice is as follows: 12 x £177.00 = £2124.00 No other or further order was sought or is now made. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990. Chairman: Date and Place of Hearing: 28 March 2008, Belfast Date Decision Recorded in Register And Issued to the Parties BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/nie/cases/NIIT/2008/2049_07IT.html