Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1090/05

CLAIMANT: Fergus Begley

RESPONDENT: Exus Energy Ltd

DECISION

The decision of the tribunal is that the claimant's respective claims for holiday pay in respect of contractual annual leave and also pay in lieu of untaken holidays for additional time worked, and pay in lieu of notice, are well-founded and the tribunal Orders the respondent to pay to the claimant the total sum of £4,464.13. The claimant's claim for unpaid wages for the period from 1-16 May 2005 is not well-founded and that claim is dismissed by the tribunal.

Constitution of Tribunal:

Chairman (sitting alone): Mr J V Leonard

Appearances:

The claimant appeared in person and represented himself.

The respondent did not appear and was not represented.

Reasons

1. The claimant's claim was for unpaid wages, holiday pay in respect of contractual annual leave and also pay in lieu of untaken holidays for additional time worked, and pay in lieu of notice. There was no response by the respondent to the claim.
2. The tribunal heard oral evidence from the claimant and from Mrs Debra Jenkins (who was taking proceedings against the same respondent and whose case was heard directly upon conclusion of the claimant's hearing) and the claimant also submitted documentation in evidence.
3. Accordingly, the tribunal was required to determine the claimant's complaints in the matter and, if satisfactorily made out, to determine the matter of any award of compensation in respect of such complaints.

THE TRIBUNAL'S FINDINGS

4. On foot of the evidence adduced before it, the tribunal made the following findings of fact, material to the issues to be determined, on the balance of probabilities:-

(a) The respondent company was incorporated in January 1995 under the name 'B9 Energy Biomass Limited'. On 10 September 2003 the respondent changed its name to 'Exus Energy Limited'. Mrs Debra Jenkins was Managing Director and Chief Executive Officer of the respondent. Mrs Jenkins was also a shareholder in the respondent.

(b) On 22 September 2003 the claimant was engaged by the respondent under the job title, 'Contracts Manager'. This employment was subject to written contract terms, which terms were seen and inspected by the tribunal. These terms provided for an initial salary of £28,000.00 (rising later to £30,000.00) per annum, gross, payable monthly. The normal days and hours of work were Monday to Friday of each week, with a nominal working day consisting of 7.5 hours (excluding lunch of 30 minutes). The contractual holidays were 25 working days holidays in each leave year (excluding public holidays), and the leave year commencing on 1 January in each year. The written terms provided that a maximum of five days' leave could be carried forward into the following leave year. The contract terms also provided that the notice period to be provided by the respondent to the claimant, for continuous employment of up to one year, was one month's notice; for more than one year it was two months' notice. The claimant accepted these written terms. From further oral evidence heard by the tribunal from both the claimant and also from Mrs Jenkins, which evidence the tribunal fully accepted, the tribunal concluded that these written contract terms were subject to "custom and practice" consensual variation.

(c) One particular such agreed variation to the written terms provided that the claimant was enabled to carry forward more than five working days into the following leave year, by agreement (notwithstanding the written term to the contrary). Another agreed term provided that during extremely busy times at work the claimant could work additional hours beyond his contractual hours which hours would be, as it was called, 'banked'. The customary agreed arrangement was that these additional 'banked' hours would result in either further time off in lieu or, alternatively, additional remuneration, if the former were not to be possible. Certainly from the evidence, upon the termination of other contracts relating to other employees, those other employees had indeed been fully paid for the additional hours which had been worked and 'banked', on the basis of either hourly or daily rates of remuneration. The tribunal had no reason to think that the contractual situation was any different in respect of the claimant.

(d) In 2005 the respondent encountered significant cash flow difficulties. Endeavours were made to raise additional finance from investors, including private subscriptions and institutional and Venture Capital investments. However a critical point was passed by which time further investments did not materialise. As a result, the decision was taken by management, initially, to lay off employees, including the claimant, with effect from 1 June 2005. Thereafter, it was decided to make all of the respondent's employees redundant with effect from 16 June 2005. Included amongst these dismissed employees was the claimant. Accordingly, the claimant was laid-off with effect from 1 June 2005 and was dismissed by the respondent on 16 June 2005, on grounds of redundancy.

(e) At the date of dismissal, being 16 June 2005, the claimant's contract had been amended to provide for a gross wage of £30,000.00 per annum. That figure represented the equivalent of £115.38 gross pay per day; £84.23 net pay.

(f) The claimant was paid by the respondent his monthly salary in respect of the month of May 2005. However, he received no remuneration from the respondent thereafter.

(g) At the date of termination of this employment the claimant had carried over from the previous leave year a small number of leave days. That, together with accrued leave for the then current leave year, indicated that the claimant had unpaid leave as at the date of termination of employment amounting to 12.3 days.

(h) The claimant had worked additional hours in pursuance of the customary agreement and these were 'banked'. On the strength of this custom and practice, the claimant was entitled at the date of termination to an additional 8 days' leave, or to pay in lieu thereof.

(i) At the date of termination, the contract terms provided that the claimant was entitled to two months' pay in lieu of notice as he had worked for more than one year.

(j) The claimant accepted that he was not entitled to any statutory redundancy payment as he had been employed for less than the two years' qualifying period necessary to pursue such a claim.

(k) The claimant had made a payment claim to the Department for Employment & Learning ("DEL") and had received the following sums:-

(i) Guaranteed payment (an excess was accidentally paid by DEL

but recouped) - £ 92.00

(ii) Unpaid holiday leave - £303.75

(iii) Unpaid leave (time in lieu) - £312.00

(iv) Pay in lieu of notice - £280.00

(l) Apart from the foregoing payments received from DEL, the claimant had received no further remuneration upon termination of his employment with the respondent. The respondent entered into a Company Voluntary Arrangement, so the tribunal understands, in the early part of 2006 and had been treated as being insolvent from that point by DEL.

(m) The tribunal did not need to determine any further facts for the purposes of its determination in the case.

THE APPLICABLE LAW

5. Article 45 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides that any deficiency in wages due is to be treated as a deduction made by the employer. Under Article 55 of the 1996 Order a tribunal may determine a wages deduction complaint to be well-founded and, on foot of Article 56 of the 1996 Order, the tribunal may order a respondent to pay to a claimant the amount of any deduction made in contravention of Article 45. Chapter III of the 1996 Order provides for statutory entitlement to payment for lay-off or short-time, but Article 186 states that an employee is not entitled to a redundancy payment by reason of being laid-off if he is dismissed by his employer. That latter provision does not prejudice any right of the employee to a redundancy payment in respect of the dismissal. The Tribunal's jurisdiction for breach of contract derives from the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 ("the 1994 Order"). Article 3 of the 1994 Order allows proceedings to be brought before an Industrial Tribunal by an employee for damages or any other sum (other than in relation to personal injuries) if, inter alia, the claim arises or is outstanding on the termination of the employee's employment

THE TRIBUNAL'S DETERMINATION

6. The tribunal fully accepts the evidence, both documentary and oral, which has been placed before it by and on behalf of the claimant, and has drawn conclusions of fact from this. In this matter, due to rather unfortunate financial circumstances, the respondent dismissed the claimant. From the evidence, that dismissal was on grounds of redundancy. Apart from certain monies which were paid to the claimant from the National Insurance Fund by DEL, the claimant was in addition owed certain monies by the respondent upon the termination of this employment.
7. In respect of the heads of claim, on foot of the statutory provisions mentioned above the tribunal finds the claimant's claims, in part only, to be well-founded. The tribunal therefore Orders the respondent company to pay to the claimant the amounts that are set out below.
8. UNPAID WAGES

The claimant had been paid wages up until the end of May 2005. He was it seems available to work but was not provided with work by the respondent on account of a lay-off from Wednesday 1 June 2005 until the date of termination, Thursday 16 June 2005. That was a period of 12 working days. The claimant claimed entitlement to payment for these 12 working days at £84.23 net per day, being the sum of £1,010.76, less the sum of £92.00 that he had received from DEL (there had indeed been an accidental overpayment by DEL but the sum apparently acknowledged as payable by DEL was £92.00 for that period, with the excess being recouped by DEL, as the tribunal understands it). The claimant's net claim was thus for the sum of £918.76. However Article 186 of the 1996 Order states that an employee is not entitled to a redundancy payment by reason of being laid-off if he is dismissed by his employer, without prejudice to other entitlements claimable. There was a dismissal of the claimant in this case. The tribunal could see no evidence in the written contract terms of any contractual entitlement available to the respondent to lay-off the claimant, nor indeed any remuneration terms if such a power had existed. If the lay-off was in breach of contract the claimant did not resign in consequence but, it appears, chose, albeit on a temporary basis, to acquiesce in any breach pending the dismissal on 16 June 2005. As far as the evidence heard and seen by the tribunal indicated, the claimant did not perform any work during this lay-off period. From all of this, the tribunal cannot discern any statutory basis upon which the claimant would be entitled to remuneration for this period of 12 days, given the terms of the statutory provisions mentioned above. The tribunal, on the evidence, does not discern any other basis for the claimant to succeed under this head. Accordingly the tribunal does not find this particular claim well-founded and this part of the claimant's claim is dismissed.

9. PAY IN LIEU OF CONTRACTUAL HOLIDAY LEAVE

At the date of termination, the claimant had accrued 12.3 days' holiday leave at £84.23 net per day, being the sum of £1,036.03. Deducting from that the sum of £303.74 received by the claimant from DEL, the net amount due to the claimant is £732.29.

10. UNPAID LEAVE (TIME IN LIEU OF ADDITIONAL HOURS WORKED)

At the date of termination, the claimant had accrued additional working time equivalent to 8 days in respect of which he would have been entitled to either time off or to pay in lieu thereof. 8 days at £84.23 net per day is the sum of £673.84. Deducting from that the sum of £312.00 received by the claimant from DEL, the net amount due to the claimant is £361.84.

11. PAY IN LIEU OF NOTICE

Under contract, the claimant was entitled to two months' pay in lieu of notice. This is the equivalent of £3,650.00 net pay. Deducting from that the sum of £280.00 received by the claimant from DEL, the net amount due to the claimant is £3,370.00.

12. The total in respect of the foregoing sums is the sum of £4,464.13. The tribunal therefore Orders the respondent to pay to the claimant the total sum of £4,464.13.
13. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 18 April 2007, Belfast

Date decision recorded in register and issued to parties: