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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Doherty v The Cocoon Group [2006] NIIT 8_06 (12 December 2006)
URL: http://www.bailii.org/nie/cases/NIIT/2006/8_06.html
Cite as: [2006] NIIT 8_6, [2006] NIIT 8_06
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- Sources of evidence
- The claim and the defence
- The issues
- Findings of fact
- The law
- Application of the law and findings of fact to the issues
- This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
CASE REFS: 8/06
135/06
CLAIMANT: Deirdre Doherty
RESPONDENT: The Cocoon Group
The unanimous decision of the tribunal is that the claimant was wrongfully dismissed from her employment and also did not receive her full entitlement to holiday pay. The tribunal orders the respondent to pay to the claimant £650.00 in respect of notice pay and £251.84 in respect of holiday pay making a total of £901.84. The claim for failure to issue itemised pay statements and for breach of contract in relation to unpaid commission is dismissed.
Constitution of Tribunal:
Chairman: Ms F Oliver
Members: Mr A Crawford
Mr V Eakin
Appearances:
The claimant was represented by Mr D Steele, Solicitor, of Messrs McGuinness & Canavan, Solicitors.
The respondent did not appear and was not represented.
The tribunal heard evidence from the claimant. The tribunal also received copies of documents from the claimant.
The claimant issued two claim forms which were consolidated for the purposes of this hearing. In the first the claimant claimed that the respondent had failed to issue itemised pay statements in accordance with Article 40 of the Employment Rights (Northern Ireland) Order 1996. The respondent served a response indicating that itemised pay statements had been provided. In the second claim form, after raising a grievance with the respondent and waiting twenty eight days, the claimant claimed wrongful dismissal, breach of contract for unpaid commission and failure to pay the correct holiday pay. The respondent served a response denying wrongful dismissal, breach of contract and indicating that the correct holiday pay had been paid.
Did the respondent fail to provide itemised pay statements?
Was the claimant entitled to one month's pay in lieu of notice?
Was the claimant entitled to commission?
Was the claimant entitled to a payment in respect of holiday pay?
The tribunal having heard the evidence and considered the documentation before it found the following facts:-
1. The claimant was employed by the respondent as a promotions officer from 10 January 2005 until 28 October 2005.
2. There was a signed written contract of employment dated 13 October 2005.
3. Under the contract of employment the claimant was entitled to one months notice.
4. Under the contract of employment the claimant was entitled to fifteen days holidays and public holidays.
5. The contract contained the following clause –
"Once all costs are covered the Promotions Officer will receive 10% commission on the products promoted."
6. The claimant was dismissed without notice for gross misconduct on 28 October 2005. She was sent a letter dated 11 November 2005 outlining the reasons for dismissal. She was not informed in this letter of any right to appeal.
7. We accept the claimant's oral evidence that she did not commit any acts of gross misconduct. We find that the claimant was dismissed without notice in breach of her contract of employment.
8. We accept the respondent's written evidence that it did provide itemised pay statements as the respondent would have had to provide these in order to reclaim payment from Kickstart. We did not find the claimant's evidence convincing in this regard.
9. We accept that the claimant did not take any holidays apart from Bank Holidays during her employment. The respondent's response indicated that the claimant had taken holidays during the year. We note that the claimant provided copy attendance records from Kickstart signed by the employer and employee indicating that the claimant was at work on the days that the respondent had indicated as holidays.
10. The claimant did not provide sufficient evidence to convince the tribunal on the balance of probabilities that she was due any unpaid commission.
11. The claimant's take home pay was £150.00 per week in accordance with her oral evidence to the tribunal.
Article 118 of the Employment Rights (Northern Ireland) Order 1996 states that an employee is entitled to notice if his employment is coming to an end. Under the claimant's contract of employment the claimant was entitled to one month's notice.
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.
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 claimant is entitled to one month's net pay in lieu of notice. Based on a take home pay of £150.00 per week the claimant is entitled to £650.00.
Based on the following calculation and taking into account the provisions of the Working Time Regulations (Northern Ireland) 1998, the tribunal finds that the claimant is entitled to £260.84 in respect of unpaid holiday entitlement.
Date of termination - 28 October 2005
Holiday accrual – 15 days in a full year @ 1/52 each week = 0.288 days per week
Days accrued by 28 October 2005 (42 weeks x 0.288) = 12.1 days
Daily net pay = £30.00
Total holiday pay accrued = 12.1 x £30.00 = £363.00
Payment already received = £111.16
Balance due = £363.00 - £111.16 - £251.84
The claimant is not entitled to unpaid commission.
The claimant was provided with itemised pay statements.
Chairman:
Date and place of hearing: 11 – 12 December 2006, Londonderry
Date decision recorded in register and issued to parties: