THE INDUSTRIAL TRIBUNALS 

CASE REF:    1245/13

CLAIMANT:	Nigel Croskery

RESPONDENTS:	1.  Legmore Concrete Limited (in liquidation)

	2.  Department for Employment and Learning

DECISION

The decision of the tribunal is that the claimant is entitled to an award of £7,360.00 in respect of a redundancy payment and notice pay.

Constitution of Tribunal:

Chairman (sitting alone):		Mr I Wimpress

Appearances:

The claimant appeared in person and was not represented.

The respondent did not attend the hearing and was not represented. 

The Claim and the Response

1.	The claimant brought claims for a redundancy payment, constructive dismissal, notice pay and holiday pay arising from the termination of his employment with the respondent.  The respondent did not file a response and did not attend the hearing.  The tribunal however did have the benefit of a Redundancy & Insolvency Payments Application (“RP1”) which was completed by or on behalf of the respondent. 

Sources of Evidence

2.	The tribunal heard oral evidence from the claimant and received a number of relevant documents from him which included correspondence with the respondent and the RP1 application referred to above.

Additional Parties

3.  	The information and material presented by the claimant in his evidence to the tribunal and the RP1 application prompted the tribunal to direct that the Department for Employment and Learning (“the Department”) should be joined to the proceedings and that the claim form should be served on the liquidator.  The hearing was therefore reconvened on a second day to allow these steps to be taken and to enable those parties to participate in the proceedings insofar as they considered necessary.  The proceedings were served on the liquidator on 25 September 2013 and the Department was joined to the proceedings by order dated 3 October 2013. 

4.	The liquidator did not respond to the service of the proceedings.  The Department filed a response dated 6 November 2013 in which it stated that the respondent was the subject of a Creditors Voluntary Liquidation on 
17 September 2013 and that the claimant’s application for payment from the National Insurance Fund had neither been accepted nor formally rejected by the Department which continued to investigate the claimant’s application with the appointed liquidator.  The Department also indicated that it was unable to assist the tribunal with issues regarding temporary lay-off and unfair/constructive dismissal.  For this reason and due to conflicting diary commitments the Department was unable to attend the reconvened hearing on 7 November 2013.  The tribunal appreciates the Department’s assistance with this matter and the helpful response filed.  It is a matter for the Department to decide whether it is necessary for it to appear at the hearing, and on this occasion, it chose not to.

The Facts

5.	The claimant worked for the respondent initially on a self-employed basis from 21 November 1990, and as an employee from January 1992.  The claimant’s date of birth is 16 May 1968.  The respondent business manufactured concrete products such as heads for windows and curbs. The claimant was employed as a skilled labourer and was mainly engaged in making sandstone window surrounds and sills.  At its height, the respondent had forty employees but more recently the workforce had reduced to seven in number.  There were also office staff and foremen, which brought the total up to fifteen.  At one stage the claimant was promoted to supervisor and put on a salary, but when the business diminished he reverted to his earlier role and was paid on an hourly rate basis.  By that stage staff were being brought into work on specific contracts and then let go.
 
6.	When the claimant was first engaged as an employee, he was offered a written contract, but in common with other staff he declined to sign the contract on the basis that its focus was on dismissal issues and had nothing in it for the benefit of employees.
   
7.	On 12 April 2013, a meeting was held with staff at which they were handed a letter bearing the same date and signed by the Managing Director, Brian Murphy, which read as follows:
 
“Dear Employee
 
We regret to inform you that it has become necessary to put all staff on short term layoff.
 
This shall take effect on Monday 15/4/13, for a period of 13 weeks as provided under current legislation.  The lay off is automatically reviewed at the end of the 13 week period or sooner if circumstances allow.  If there is no increase in workload you shall continue on a second short term layoff period of 13 weeks and advise us if you are in a position to resume work.
 
You shall receive a statutory payment of £24.20 per/day for the 1st five days that you are laid off.  As you may be entitled to benefits this letter should be taken to the Benefits Agency as confirmation of being put on short term lay off.  This will be paid on Friday 19/4/13.
 
Everything is being done to acquire new work but add that should you desire, you are within your rights to seek work elsewhere.
 
We apologise but the simple fact is the work we expected to be awarded has not yet come to fruition or work on the ground has been delayed hence having a detrimental effect on the Companies’ cash flow.
 
However we shall require staff on an adhoc bases as & when required to deal with delivery’s etc.
 
Once again we apologise for this situation but it is somewhat out of our control and we as Directors have a responsibility to the Company & its employees to ensure that everyone’s interests are protected.”
 
8.	The claimant’s gross pay was £320 per week which equated to £250 net pay based on an hourly rate of £8.00 on a 40 hour week.  The claimant’s final pay packet consisted of two days pay, plus guarantee payments of £20 per week for thirteen weeks.  The claimant was entitled to 29 days holiday per calendar year but this was tied in to set holiday periods.  The claimant had taken 7 days leave prior to the termination of his employment and would not have been able to take any further leave until the July fortnight had he still been in employment. 
 
9.	On 14 June 2013, having been laid off for nine weeks, the claimant wrote to the respondent and applied for a redundancy payment.  He received no answer and wrote again on 21 June 2013 but once more the correspondence went unanswered.  Finally, the claimant wrote to the respondent on 28 June 2013 saying that in view of the respondent’s conduct and that it had not had the courtesy to respond to his previous letters he was resigning with immediate effect. 

10.	In his evidence to the tribunal the claimant stated that because there had been no response to his correspondence and he had been offered another job, as a Support Worker at the Seconnell Village Clinic, he had to take it.  He applied for this position towards the end of April 2013.  The pay in his new job is £6.50 per hour.  The claimant is currently serving a six month probationary period in respect of his new job.  It is clear that, but for this job offer he would not have resigned. 
 
11.	The claimant claimed Jobseeker’s Allowance after he was laid off but apparently only received it after a lot of hassle and having the Guarantee Payment deducted from the first payment of benefits.

The Law

12.	The relevant law is contained in the Employment Rights (Northern Ireland) Order 1996 and is set out below.

“Meaning of “lay-off” and “short-time”N.I.
182.—(1) 	For the purposes of this Part an employee shall be taken to be laid off for a week if—
(a) 	he is employed under a contract on terms and conditions such that his remuneration under the contract depends on his being provided by the employer with work of the kind which he is employed to do, but

(b) 	he is not entitled to any remuneration under the contract in respect of the week because the employer does not provide such work for him.
(2) 	For the purposes of this Part an employee shall be taken to be kept on short-time for a week if by reason of a diminution in the work provided for the employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's remuneration for the week is less than half a week's pay.
 
Eligibility by reason of lay-off or short-time

183.—(1) 	Subject to the following provisions of this Part, for the purposes of this Part an employee is eligible for a redundancy payment by reason of being laid off or kept on short-time if—

(a) 	he gives notice in writing to his employer indicating (in whatever terms) his intention to claim a redundancy payment in respect of lay-off or short-time (referred to in this Part as “notice of intention to claim”), and —

(b) 	before the service of the notice he has been laid off or kept on short-time in circumstances in which paragraph (2) applies.

(2) 	This paragraph applies if the employee has been laid off or kept on short-time—
(a) 	for four or more consecutive weeks of which the last before the service of the notice ended on, or not more than four weeks before, the date of service of the notice, or

(b) 	for a series of six or more weeks (of which not more than three were consecutive) within a period of thirteen weeks, where the last week of the series before the service of the notice ended on, or not more than four weeks before, the date of service of the notice.

…

Resignation

185.—(1) 	An employee is not entitled to a redundancy payment by reason of being laid off or kept on short-time unless he terminates his contract of employment by giving such period of notice as is required for the purposes of this Article before the end of the relevant period.
(2) 	The period of notice required for the purposes of this Article—
(a) 	where the employee is required by his contract of employment to give more than one week's notice to terminate the contract, is the minimum period which he is required to give, and

(b) 	otherwise, is one week.

(3)	In paragraph (1) “the relevant period”—

(a) 	if the employer does not give a counter-notice within seven days after the service of the notice of intention to claim, is three weeks after the end of those seven days,

(b)	if the employer gives a counter-notice within that period of seven days but withdraws it by a subsequent notice in writing, is three weeks after the service of the notice of withdrawal, and

(c)	if—

(i)	the employer gives a counter-notice within that period of seven days, and does not so withdraw it, and

(ii) 	a question as to the right of the employee to a redundancy payment in pursuance of the notice of intention to claim is referred to an industrial tribunal,

is three weeks after the tribunal has notified to the employee its decision on that reference.

(4) 	For the purposes of paragraph (3)(c) no account shall be taken of —

(a) 	any appeal against the decision of the tribunal, or

(b) 	any proceedings or decision in consequence of any such appeal.”

Conclusions

Constructive Dismissal

13.		I am satisfied that there is no basis for the claim of constructive dismissal.  While the failure to pay wages could in certain circumstances give rise to such a claim it is clear that in the present case the respondent was in the throes of financial difficulties which was making it difficult for it to make appropriate payments to staff on their being made redundant.  The respondent has to an extent acknowledged this by supplying the claimant with the RP1 form.  It is also clear that the claimant filed this claim in response to the failure to make a redundancy payment and that the claim of constructive dismissal was added on the basis of legal advice rather than a genuinely held belief that it had occurred.

Redundancy payment

14.	The claimant first gave notice of his intention to claim a redundancy payment on 14 June 2013.  The relevant period for the purposes of Article 185(1) would be four weeks thereafter.  The claimant clearly resigned before the end of the relevant period but did not give one week’s notice as required by Article 185(1) but rather resigned with immediate effect on 28 June 2013 having not received any response whatsoever to his letters of 14 June 2013 and 21 June 2013 and having been offered employment elsewhere.  However, the respondent has accepted in completing the RP1 form in respect of the claimant that he is entitled to a redundancy payment.  In these circumstances and in the absence of any contrary argument the tribunal considers that the claimant has established that he is entitled to a redundancy payment.

Notice pay and holiday pay

15.	I am satisfied that the claimant’s claim for notice pay has been made out on the basis of the information contained in the RP1 form.  I am not however persuaded that he is entitled to holiday pay as no further leave would have been due to him until the July fortnight. 

Award

Redundancy payment 		£7,040.00

Notice pay                               	£   320.00

Total		     		£7,360.00

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

Chairman:

Date and place of hearing: 18 September 2013 and 7 November 2013 at Belfast.

Date decision recorded in register and issued to parties: