THE INDUSTRIAL TRIBUNALS

CASE REF:	481/07

CLAIMANT:		James Climie

RESPONDENT:	Connect Engineering Attachments Ltd

The unanimous decision of the tribunal is that the tribunal finds the claimant’s claims well-founded and the tribunal Orders the respondent to pay to the claimant the sum of £2,936.30 in respect of redundancy pay, pay in lieu of notice and wages due and owing to the claimant upon termination of employment.

Constitution of Tribunal:
Chairman:		J V Leonard	
Members:		1.  Mr J Currie
			2.  Mr B Heaney

Appearances:
There was no appearance by or on behalf of the claimant.
There was no appearance by or on behalf of the respondent.

DECISION
REASONS

1.	In this matter the claimant, by claim form dated 25 March 2007 and received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 28 March 2007, claimed redundancy pay, pay in lieu of notice, and wages including holiday pay consequent upon termination of his employment.  There was no appearance or defence to the proceedings on the part of the respondent.

2.	In circumstances, such as this, where a claimant fails to appear, Rule 27 of the Industrial Tribunal Rules of Procedure (“the Rules”) contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 permits a tribunal under the Rules, inter alia, to dispose of the proceedings in the absence of that party.  Rule 27(6) of the Rules requires the tribunal in these circumstances first to consider any information in its procession which has been made available to it by the parties.  In this case the tribunal had before it merely the claimant’s originating claim form.  Accordingly the tribunal proceeded to determine the matter on the basis of the application which was before it.  In the absence of any defence on the part of the respondent to the proceedings the tribunal considered the case as set out by the claimant in his claim.

3.	The issue to be determined by the tribunal was therefore whether or not the tribunal accepted the claimant’s claim as set out in his originating claim and, if accepted, the tribunal had to determine the matter of appropriate compensation or remedy.  

THE TRIBUNAL’S DETERMINATIONS OF FACT 

4.	On the basis of the claimant’s claim and in the absence of any defence thereto, the tribunal accepted the following matters of fact as proven, on the balance of probabilities:-

(a)	The claimant commenced employment with the respondent company on or about 6 April 2002.  That employment ended with the dismissal of the claimant on or about 31 January 2007.  The claimant was employed as a welder.  At the date of termination of the employment the claimant had 4 years’ service.

(b)	The claimant’s gross weekly wage was £390 and his net weekly wage was £275.  At the effective date of termination the claimant was aged 41 years.  There was no evidence of any contractual entitlement to annual leave; accordingly the tribunal relied on the statutory provisions in that regard which are referred to below.

(c)	The claimant was owed 3 days’ wages at the date of termination of employment (for the Monday, Tuesday and Wednesday of that working week ending 31 January 2007).  The tribunal also accepted that the claimant was owed a lying week on termination of this employment.

(d)	The claimant’s claim for holiday pay was for a figure of 2.3 days.  In the absence of the claimant providing further detail in that regard, the tribunal had some difficulty in accepting that contention.  There was no evidence as to the holiday year or other detail such as evidence of carry over of holiday entitlement from one calendar or leave year to the next.  The tribunal was more inclined to accept that the claimant was owed 1.66 days’ holiday pay from the commencement of the calendar year to the date of termination than the figure claimed.  That is reflected in the calculations set out below.

(e)	The claimant was dismissed on grounds of redundancy, apparently when the employer had ceased to trade.  The tribunal did not need to determine any other findings of fact for the purposes of its decision in this case.

THE APPLICABLE LAW

5.	Part IV of the Employment Rights (Northern Ireland) Order 1996 (“The 1996 Order”) provides for protection of wages.  Article 45 of the 1996 Order provides that an employer shall not make a deduction from wages of a worker employed by him unless:-

(a)	The deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)	The worker has previously signified in writing his agreement or consent to the making of the deduction.  

Article 55 of the 1996 Order provides that a worker may present a complaint to an industrial tribunal regarding an unauthorised deduction and Article 56 provides that a tribunal may find a complaint under Article 55 well-founded and shall make a declaration to that effect and shall order the employer to pay the worker the amount of any deduction made in contravention of Article 45.

6.	Article 170 of the 1996 Order 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.  Article 197 of the 1996 Order provides for the computation of amount of a redundancy payment.  

7.	The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”) provides at Article 3 that proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than the claim for damages, or for a sum due, in respect of personal injuries) if the claim arises or is outstanding on the termination of the employee’s employment.  Thus any monies due on foot of contract are recoverable on foot of this provision of the 1994 Order.

8.	The Working Time Regulations (Northern Ireland) 1998 (as amended) (“the 1998 Regulations”) provide at Regulation 13 as to an entitlement to annual leave amounting to 4 weeks’ leave in any worker’s leave year.  Regulation 14 of the 1998 Regulations provides for compensation by the employer by way of payment in lieu of leave for untaken leave upon termination of employment.

THE TRIBUNAL’S DETERMINATION

9.	Applying the applicable law as hereinbefore stated to the facts as determined by the tribunal, the tribunal finds the claimant’s claims well-founded and made out to the extent mentioned below and awards compensation accordingly.

10.	The claimant was dismissed by the employer on grounds of redundancy.  Taking account of the applicable statutory provisions and of the claimant’s age at date of termination of employment, and noting the then applicable statutory maximum weekly figure for pay (£290) the appropriate computation is:-

			4½ x 290	=	£1305

11.	The claimant was employed for 4 years at the effective date of termination.  The claimant would therefore be entitled to 4 weeks’ net pay in lieu of notice, as this was a summary termination of employment.  The applicable calculation is:-

4 x 275	=	£1100

12.	The claimant claimed 3 days’ wages due at date of termination.  The applicable net daily pay is £55.  The applicable calculation is:-

3 x 55		=	£165

13.	The claimant claimed for a lying week owed.  The applicable calculation is as follows:-

			1 x 275	=	£275

14.	The claimant claimed for holiday pay.  In the absence of anything further, the tribunal concludes that the applicable sum owed was in respect of 1.66 days’ holiday pay on foot of the 1998 Regulations.  The applicable calculation is:-

55 x 1.66	=	£91.30

15.	The total in respect of the foregoing sums is £2,936.30.  The tribunal Orders the respondent to pay to the claimant the sum of £2,936.30 in respect of redundancy pay, pay in lieu of notice and wages due and owing to the claimant upon termination of employment. 

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

Chairman:

Date and place of hearing:		9 August 2007, Londonderry

Date decision recorded in register and issued to parties: