Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2722/04

CLAIMANT: Jonathan McSorley

RESPONDENT: McColgan's Quality Foods Ltd

DECISION

The decision of the tribunal is that the correct respondent for the purpose of these proceedings is McColgan's Quality Foods Ltd.

The claimant's claim is dismissed in its entirety.

Constitution of Tribunal:

Chairman: Mrs A Wilson (Chairman sitting alone)

Appearances:

The claimant did not appear and was not represented.

The respondent was represented by Mr M Harvey, Solicitor of MSC Daly, Solicitors.

The claimant did not appear and was not represented. The respondent applied for a strike out which was refused. The tribunal proceeded to consider the case under Rule 11(3) of the Industrial Tribunals (Constitution and Rules of Procedure) (Northern Ireland) 2004. The claimant had submitted written submissions pursuant to Rule 10(4) of these Rules. The tribunal considered these representations together with bank statements and wage slips attached, the Claim Form, the Notice of Appearance, documents handed in and proved by the respondent and the oral evidence of Mr Patterson for the respondent.

The Issues

1. In his claim form the claimant claims wages outstanding on the termination of his employment with the respondent.
2. The claimant was employed by McColgans Quality Foods Ltd as a hygiene technician. He worked with the company from August 2003 until his employment terminated on or about 20 August 2004 following his resignation.
3. His contract of employment stipulated a 40 hour week and an annual entitlement to 25 days holidays inclusive of bank/public holidays. The leave year ran from 1 January to 31 December in each year. In exceptional circumstances an employee was allowed to carry over annual leave and the claimant carried over one day in January 2004. The claimant's leave entitlement for 2004 was accordingly 26 days.

The claimant worked 36.69 hours for the respondent during his last working week.

4. The leave record handed in by the respondent records that the claimant had taken 22 days leave at the time of his resignation in August 2004. This substantiates the evidence of Mr Patterson, the respondent's human resources manager.
5. The claimant's contract of employment provides as follows:-

Payment for annual and bank holidays will be at your normal rate of pay.

Should you leave, payment will normally be made for all unused accrued holiday entitlement. If you have taken more annual holiday entitlement than you have accrued during the holiday year the balance will be deducted from any outstanding pay.

The Law

6. Following the recent Court of Appeal decision in Commissioners Of Inland Revenue -v- Ainsworth and Others [2005] IRLR 465, a claim to enforce an entitlement to holiday pay can only be taken under the Working Time Regulations and not as a claim for unauthorised deductions from wages under the Employment Rights (Northern Ireland) Order 1996. Consequently, the tribunal confined its deliberations to the position under those Regulations.
7. Regulation 14 provides for payment in lieu of untaken leave to be paid only if the worker's employment is terminated during the course of his leave year.

The Decision

8. Based on the following calculation and taking into account the provisions of the Working Time Regulations (Northern Ireland) 1998, the tribunal finds that there are no wages outstanding to the claimant by the respondent, as there was no untaken leave at the date of termination.

Date of termination of the claimant's contract: 20 August 2004.

Holiday accrual – 25 days in a full year @ 1/52 each week = 0.48 days per week (plus 1 day carried over).

The claimant had taken 22 days in 2004.

The amount accrued by 20 August was 16.22 days.

Taking into account 1 day carried over from the previous year, the claimant had taken 4.8 days in excess of his accrued entitlement at the date of termination.

This claim is accordingly dismissed.

Chairman:

Date and place of hearing: 29 September 2006, Belfast.

Date decision recorded in register and issued to parties: