Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1389/07

CLAIMANT: Martin Fisher

RESPONDENT: Maginn's Bar

DECISION

The decision of the tribunal is that the claimant's complaint is dismissed as the tribunal cannot be satisfied on the balance of probabilities as to the accurate legal identity of the respondent and the amount of monies due, if any, in respect of holiday entitlement.

Constitution of Tribunal:

Chairman: Ms M Sheehan

Appearances:

The claimant was unrepresented and did not appear at hearing.

The respondent had failed to enter an appearance.

Issues

1. The claimant presented an originating complaint that during his employment as a chef with the respondent, between 12 October 2006 to 21 May 2007, his employer failed to account to him when leaving his employment for accrued holiday leave. The tribunal had to determine whether there was accrued holiday leave and what payment is due to the claimant in respect of that outstanding leave on termination of his employment with the respondent.

The Facts

2. The originating complaint was received in the Office of the Industrial Tribunals and Fair Employment Tribunal on 5 July 2007.
3. The claimant did not attend the hearing so the tribunal gave consideration to the originating claim form. The respondent had failed to enter a response. The claimant provided no other documents nor was any indication sent to the tribunal as requested in the notice of hearing dated 3 October 2007 that a postponement was required.
4. Maginn's Bar is not a legally identified individual against which it would be appropriate to make an order. No documentation was submitted by the claimant to identify the correct legal identity of his employer the respondent.
5. The claimant stated in his originating claim form at section 6.4 that he worked 40 hours per week at £7.00 per hour gross. He also stated that the average take home pay was £300 per week. These figures did not correlate with each other. The tribunal calculated that 40 hours at £7.00 per hour gave a gross weekly salary of £280.00.
6. The claimant stated at section 10.3 of his originating claim form that his "average day was 8.5 hours at £7.00 per hour and on that basis he alleged that he was owed £684.25 gross in respect of accrued holiday leave. The claimant made no mention whether over his seven month period of employment with the respondent he availed of any leave. The tribunal noted that those seven months included Christmas and Easter holiday periods.
7. No wage slips were produced to the tribunal as to the claimant's gross wage.

Applicable Law

8. The relevant law is found either in the provisions of The Working Time Regulations (Northern Ireland) 1998 as amended or the terms and conditions of the claimant's contract of employment. The material provisions on entitlement to annual leave and compensation related to entitlement to leave are found at Regulation 13 and 15A of the Working Time Regulations (Northern Ireland) 1998 as amended. It is clear from the Regulations that, in the absence of contractual provisions, the leave year for the claimant ran from 12 October 2006 and each subsequent anniversary of that date. Paragraph (2) of Regulation 15A makes clear that the claimant accrues leave at one twelfth of the four weeks annual leave in every leave year. The tribunal has to ascertain the accrued annual leave, less any leave taken, in accordance with the Regulations unless evidence is placed before the tribunal as to contractual terms with regard to the date for commencement of the leave year and accrual of leave entitlement.

Conclusions

9. The tribunal has determined that it is not possible on the balance of probabilities to be satisfied as to what monies if any are owed to the claimant in light of the conflicting information provided on the originating claim form as to the wages earned. The tribunal calculated that the figures provided by the claimant are inconsistent with the level of wages claimed in his claim form. For example on a five day week at 8.5 hours average the gross amount earned by the claimant would amount to £295.50. The claimant makes no mention as to whether his calculation is in accordance with contractual terms or whether he is relying on the Working Time Regulations. In the absence of any reference to contractual terms it appears to the tribunal that this application is more likely than not to be a claim pursuant to Regulation 30 of the Working Time Regulations (Northern Ireland) 1998 as amended.
10. The value of any payment to be made in respect of accrued leave which had not been availed of prior to termination of employment under the Regulations is based on "a week's pay" within the meaning of the Employment Rights (Northern Ireland) Order 1996. However in this case it is not possible to clearly determine the value of a "weeks pay". The notice of hearing advises the claimant that it is his responsibility to "prove the facts of his case" and documents such as pay slips, contract of employment are given as examples of the documents that should be brought to hearing. The claimant failed to attend the hearing or make any contact indicating that he did or did not wish the matter to proceed in his absence. The tribunal did consider adjourning this hearing but it appeared to the tribunal that one explanation for the lack of communication was that the parties had resolved issues between themselves but not troubled to advise the tribunal. Mindful of the overriding objective set out in the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 it did not appear to the tribunal that an adjournment in these circumstances was warranted to deal "justly" with the matter. Accordingly the tribunal has determined to dismiss the claim in all the circumstances.

Chairman:

Date and place of hearing: 3 October 2007, Belfast.

Date decision recorded in register and issued to parties: