Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1471/05

CLAIMANT: Peadar Seamus McMahon

RESPONDENT: Thomas Verdun Mathers, T/A Mathers Transport

DECISION

The claims that the Claimant did not receive written particulars of employment or itemised pay statements are dismissed, as are the claims to one week's holiday pay and one week's pay in lieu of notice.

Constitution of the Tribunal:

Chairman (Sitting Alone): Mr M G O'Brien

Appearances:

The Claimant did not appear and was not represented.

The Respondent was represented by Mr Paul Kennedy, Solicitor.

Sources of Evidence

The Claimant did not tender any evidence or written representation.

The Respondent's solicitor made representations.

Findings of Fact

1. By his claim, presented on 31 October 2005, the Claimant asserted he had been employed by the Respondent from 8 June 2004 to 3 July 2005 as a lorry driver, earning £150 per week gross: £130 per week nett. The Claimant claimed he was unfairly dismissed on 17 July 2005. At section 6.3 of the claim form, the Claimant asserted he worked 30 hours per week. At section 7.3 of the claim form, the Claimant asserted that he received £14 per week Working Tax Credit. At section 10.1 of the claim form, the Claimant asserted he was entitled to £300 comprised of holiday pay and notice. At section 12.1, the Claimant asserted he had never received one week's notice pay or one week's holiday pay, and that he had never received itemised pay statements or written particulars of employment.
2. By its response to the claim, presented on 5 December 2005, the Respondent asserted at section 4.6 that the Claimant had resigned his employment and therefore there was no issue of an entitlement to notice pay. At section 4.7 – 4.8 of the response, the Respondent contended the Claimant worked on 25 hours per week on average. The circumstances of this alleged resignation are expanded upon in section 6.3(3) of the response form.
3. A Pre-hearing Review determined on 10 May 2006 that the Claimant's claim for unfair dismissal is out of time and that the tribunal, accordingly, had no jurisdiction to deal with the complaint of unfair dismissal.
4. The Tribunal finds the burden of proving non receipt of written particulars, non-receipt of itemised pay statements, entitlement to one week's holiday pay and one week's pay in lieu of notice rests squarely on the Claimant. The Claimant has not appeared, is not represented, and tendered no written representation. The Tribunal is therefore unable to make any finding that the Claimant did not receive written particulars of employment, or a similar finding that he did not receive itemised pay statements. The Tribunal finds that the Claimant resigned on 17 July 2005. The Tribunal finds the Claimant did not have one week's entitlement to holiday pay when he resigned on 17 July 2005.

The Issues to be Decided

5. The issues to be decided in this case are four-fold;

(a) Did the Claimant receive written particulars of employment?

(b) Did the Claimant receive itemised pay statements?

(c) Is the Claimant entitled to one week's pay in lieu of notice?

(d) Is the Claimant entitled to one week's holiday pay?

Applicable Law

6. Articles 33 and 34 of the Employment Rights (NI) Order 1996 Order ["the 1996 Order"] provide an employee with the right to have provided to him a statement of employment particulars within two months of commencement of employment.
7. Article 40 of the 1996 Order provides an employee with the right to receive itemised pay statements.
8. Article 45 of the 1996 Order provides an employee with the right not to suffer unauthorised deductions from wages. Article 59 of the 1996 Order defines wages to include holiday pay.
9. Article 118(3) of the 1996 Order provides the employee with the right to receive pay in lieu of notice.

The Decision of the Tribunal

10. The Tribunal wishes to emphasise that it has considered the assertions in the claim and the response, pursuant to Rules 27 (5) (6) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 ["the 2005 Rules"].
11. The Tribunal has found that the burden of proving (i) non receipt of written particulars, (ii) non-receipt of itemised pay statements, (iii) entitlement to one week's holiday pay, and (iv) entitlement to one week's pay in lieu of notice rests squarely on the Claimant. The Claimant has not appeared, is not represented, and tendered no written representation. Therefore, the burden of proof has not been discharged by the Claimant in this regard, and the Tribunal was precluded from making findings in respect of non-receipt of written particulars of employment and of non-receipt of itemised pay statements.
12. Accordingly, the Tribunal dismisses the Claimant's claim for breach of Articles 33-34 of the 1996 Order, and for breach of Article 40 of the 1996 Order.
13. Pursuant to Rules 27 (5)-(6) of the 2005 Rules, the Tribunal has taken due cognisance of the information supplied by Mr Kennedy that the Claimant resigned on 17 July 2005 and determines that there was thus no breach of Articles 45, 59 or 118(3) of the 1996, and that the Claimant is not entitled to one's week's pay in lieu of notice or one week's holiday pay.
14. The Claimant's claims are thus dismissed in their entirety.
15. No further or other Order was sought or is now made.

Chairman:

Date and Place of Hearing: 8 June 2007, Belfast

Date decision recorded in register and issued to the parties: