THE INDUSTRIAL TRIBUNALS

CASE REF:  06798/09

CLAIMANT:			Martin Duffy

RESPONDENT:		Pat Devine Homes Ltd

DECISION
The decision of the tribunal is that the claimant’s claims for pay in lieu of notice, redundancy pay and unauthorised deduction of wages are well founded and the tribunal Orders the respondent to pay to the claimant compensation as follows:-

(a)	Pay in lieu of notice £1,254.00. 

(b)	Redundancy pay £1,400.00

(c)	Wages £300.00

TOTAL: £2,954.00

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr J V Leonard

Appearances:
The claimant appeared and represented himself.

Messrs McCartney & Casey, Solicitors, applied to come off record on behalf of the respondent at the commencement of the hearing and that application was granted by the tribunal.  Thereafter there was no appearance by or on behalf of the respondent.

REASONS

 1.	The tribunal heard oral evidence from the claimant and noted the claim form and the response thereto and any other documents adduced in evidence.

THE ISSUE

 2.	In his claim to the tribunal the claimant claimed redundancy pay, pay in lieu of notice and unauthorised deduction of wages.  In regard to the respondent company’s response to the claim, a part only of that response was accepted, that being a defence in respect of the claims for notice pay and unauthorised deduction of wages.  As the respondent company did not detail the grounds upon which it was intended to resist the redundancy pay claim, that part of the claim was undefended.  Accordingly, the tribunal had to decide if the claimant’s claims were well founded, and if so, the matter of an appropriate remedy.

THE TRIBUNAL’S FINDINGS OF FACT

 3.	In consequence of the oral and documentary evidence before it, the tribunal on the balance of probabilities determined the following material facts:-

	(a)	The claimant’s employment with the respondent company commenced on 24 May 2004.  The respondent’s business was construction.  The claimant was employed as a machine operator.  At the commencement of the employment, a “lying week” arrangement prevailed in that the claimant got one week’s wages at the end of the second week of employment and wages were always one week in arrears.  Whilst it is noted that the respondent, in the response to the claim, had generally defended this aspect of the claimant’s claim, there was nothing to persuade the tribunal, noting the claimant’s evidence, that the “lying week” was not the arrangement agreed in this employment from the outset.

	(b)	In this employment the claimant received a gross wage of £429.00 and a nett take home pay of £330.00 per week.  

	(c)	On 18 December 2008 Mr Devine of the respondent company spoke with the claimant and informed the claimant that the claimant’s employment was to terminate on the following day, 19 December 2008, on grounds of redundancy due to a shortage of work.  The employment duly terminated the following day and the claimant received payment of wages covering a period up to the end of December 2008.  The claimant confirmed to the tribunal that in previous years there had been a customary arrangement, as work would have ceased over the Christmas period, that employees would have been paid just before Christmas for the forthcoming holiday period until work would have recommenced at the start of the New Year.  

	(d)	As there were no written terms and conditions of employment governing contractual notice to be given, the claimant confirmed that he regarded this employment as being governed by the statutory provisions in respect of notice.  The claimant further clarified to the tribunal that he was seeking only the nett wage which prevailed at the time of commencement of the employment in respect of the “lying week” which he stated was due to him upon termination, that is to say the sum of £300.00 and not the current wage at the time of termination, which was £330.00 per week.  

	(e)	At the time of termination of the employment, the claimant had been employed for four complete years and he was aged 28 years. 

THE APPLICABLE LAW

4.        In relation to redundancy pay, Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that an employer shall pay a redundancy payment to any employee in the event that 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 forth in Article 174 of the 1996 Order. This provides as follows: “For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to (a) the fact that his employer has ceased or intends to cease (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) 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.” Article 197 of the 1996 Order sets out how the amount of the redundancy payment should be calculated with reference to length of service and age of the employee and Article 23 of the 1996 order, as amended, provides that  for the purpose of calculating a redundancy payment the amount of the week’s pay shall not exceed (at the material time) £350.00.

In relation to unauthorised deduction of wages, Article 45(3) of the 1996 Order provides that: "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion".  The Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned.  

           In regard to notice pay the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 is applicable in relation to breach of contract by non payment of notice pay and the tribunal may make an appropriate order. Article 118 of the 1996 Order provides for a minimum period of statutory notice dependant upon length of service.

THE TRIBUNAL’S DECISION

 5.	The redundancy pay claim in this case is undefended.  Notwithstanding a general defence to the other claims having been contained within the response, the tribunal has heard the claimant’s evidence in this matter and has not received any information or evidence, whether from the respondent or any other source, to counter this. Thus the tribunal fully accepts the claimant’s case in respect of the facts, as the claimant had been an entirely credible witness. 

 6.	Applying the law to the facts, it appears that there was a reduction in work affecting the respondent company and that was the stated reason for the dismissal of the claimant. The factual situation falls within the statutory definition of redundancy and the tribunal is satisfied that redundancy was the reason for dismissal.  Accordingly the claimant is entitled to a redundancy payment. Noting the claimant’s age and his length of service with the respondent company, the tribunal finds that claim to be well founded and the tribunal orders the respondent to pay to the claimant redundancy pay as is set out below.

 7.	Regarding the claimant’s claim for unauthorised deduction of wages, the tribunal is satisfied that there was a “lying week” worked at the commencement of employment. That is still owing and unpaid to the claimant. The claimant’s case was that he was entitled to the sum of £300.00 at the date of commencement of employment. The tribunal cannot place the award at any higher level than that sought by the claimant. The tribunal finds the claim for unauthorised deduction of wages to be well founded and the tribunal orders the respondent to pay to the claimant wages as set out below.

 8.	Regarding the claim for pay in lieu of notice, the claimant was effectively given one day’s notice of termination.  As the statutory notice provisions apply (and as there is no enhanced contractual entitlement) the claimant would have been entitled to four weeks’ notice of termination of employment or to pay in lieu thereof.  He received one day’s notice only.  However, the tribunal notes that the respondent did pay to the claimant wages beyond the termination date, that date being 19 December 2008, for a period up to the end of December 2008. The question arises as to whether that ought to be properly regarded as being notice pay or holiday pay. That period would ordinarily have been, but for the termination, as the tribunal understands it, covered by customary holiday pay.  Upon the facts, these were accrued holiday days which would have been payable to the claimant in any event to make up for the full leave year.  In the absence of any further information, the tribunal’s determination is that full pay in lieu of notice for the period of four weeks remains due and owing to the claimant, less the one day’s notice of termination actually received.  Accordingly, the tribunal finds the claim for pay in lieu of notice to be well founded and the tribunal orders the respondent to pay to the claimant a sum equivalent to four weeks’ pay, less one day’s pay, in lieu of notice and the calculation of pay in lieu of notice is as set out below.

9.	Having determined that the claimant’s claims to be well founded, the tribunal orders    the respondent to pay to the claimant compensation as follows:-

(d)	Pay in lieu of notice (four weeks’ pay less one day = £330.00 x 4 = £1,320.00 less £66.00) = £1,254.00. 

(e)	Redundancy pay £350.00 (statutory maximum) x 4 = £1,400.00

(f)	Wages - £300.00

TOTAL: £2,954.00

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

Chairman:

Date and place of hearing:	12 November 2009, Londonderry.

Date decision recorded in register and issued to parties: