Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2409/06

CLAIMANT: James Kerlin

RESPONDENT: DEL Redundancy Payments Service

DECISION

The unanimous decision of the tribunal is that the claimant's application to the respondent Department under Article 227 of the Employment Rights (Northern Ireland) Order 1996 in respect of holiday pay be dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Ms Wright

Mr Robinson

Appearances:

The claimant appeared in person.

The respondent was represented by Ms M McDevitt, Solicitor, of The Departmental Solicitor's Office.

1. The claimant, Dr Kerlin, worked for a company, Smart Light Devices Ireland Ltd (SLDI), from 1 September 2002 until 22 April 2005. On 21 April 2005 he received a letter from the Chief Executive of the company informing him that for economic reasons his employment with the company was terminated with immediate effect.

2.	(i)	This claim concerns an application by Dr Kerlin to the respondent Department for a payment to him under Article 227 of the Employment Rights (Northern Ireland) Order 1996 for an amount in respect of holiday pay to which he claims to be entitled.
	(ii)	There had been an issue between the parties as to whether or not Dr Kerlin was an employee of SLDI, but by the time of the hearing this point had been conceded in Dr Kerlin's favour by the respondent Department and it therefore was not necessary for the tribunal to resolve it.
	(iii)	The outstanding issues between the claimant and the respondent Department were the date on which the company had become insolvent, and whether or not he was entitled to carry over holidays. The former is relevant under Article 229(1)(c) of the 1996 Order, as by virtue of that provision an employee is entitled to claim holiday pay in respect of a period or periods of holiday not exceeding six weeks in all, and to which the employee became entitled during the 12 months ending with the date on which the employer became insolvent. The relevance of the latter arises under Article 229(3)(b) which provides a definition of holiday pay to include any accrued holiday pay which, under the employee's contract of employment, would in the ordinary course have become payable to him in respect of the period of a holiday if his employment with the employer had continued until he became entitled to a holiday.

2. The tribunal finds the following facts:-

(i) The company was compulsorily wound up on 9 March 2006.

(ii) Dr Kerlin contended there had been an earlier members' winding up on 22 April 2005. However, no evidence has been produced to support this. Such documentary evidence as exists, including documentation in the possession of the Insolvency Service, indicates that it was a compulsory winding up.

(iii) Dr Kerlin was entitled to carry over holidays with the approval of the company's Board of Directors. No evidence has been produced to show that any such approval was given in respect of the relevant period.

(iv) The respondent Department has made arrangements to pay Dr Kerlin holiday pay calculated at 2.92 days on the basis that he was entitled to that amount of holidays between 9 March 2005 and 22 April 2005 and, the former date being the 12 months prior to the date of insolvency.

3. We are satisfied that the respondent Department has made the proper payment to Dr Kerlin under Article 127, and we therefore dismiss his complaint to the tribunal.

Chairman:

Date and place of hearing: 23 April 2007, Belfast

Date decision recorded in register and issued to parties: