Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 2597/06

CLAIMANT: Nabir Othman

RESPONDENT: Lemongrass (NI) Ltd

DECISION

The unanimous decision of the tribunal is that the respondent do pay to the claimant the sum of £573.09 in respect of outstanding holiday pay and the sum of £382.06 by way of outstanding wages. The claimant's claim for wrongful dismissal is hereby dismissed.

Constitution of Tribunal:

Chairman: Mr Davey

Members: Mr Irwin

Ms Kelly

Appearances:

The claimant was represented by Mr R Nixon of Citizen's Advice Bureau.

The respondent was represented by Mr A Ahmet.

Reasons

1. The claimant's claim was three-fold. First he alleged that he had taken three weeks holiday for which he had not been paid. Second he alleged that there were three weeks wages outstanding as at the termination of his employment. Third he claimed that he was wrongfully dismissed and sought a week's pay in lieu of notice.

2. There was no dispute that, as at the determination of the claimant's contract of employment he was receiving the sum of £230 per week gross or £191.03 nett. There was dispute as to the length of continuous service of the claimant. This affected the question of holiday pay but the total amount of time served did not exceed one year. Consequently no question of any rights for unfair dismissal arose.

3. It is common case that the claimant first took up employment with the respondent in December 2005. The tribunal found that he continued to work from then until 6 October 2006. This finding was based on the evidence of the claimant as supported by a fellow employee Mr N Hisham. The evidence given on behalf of the respondent was that the claimant had ceased to work but went on holiday in April and did not return until August. In support of this contention the respondent produced two bundles of copied payslips the first ending on 14 April 2006 and the second running from 18 August 2006 until 13 October 2006. The tribunal discounted these payslips in relation to the issue of continuous employment. This was for two reasons. First the first bundle of payslips related to a Mr Nabir Othman with a national insurance number SE 11 51 87D. The second bundle related to a Mr Nabir Othman national insurance number 10 05 84M. The respondent was unable to explain this inconsistency. Second the first bundle of payslips showed an amount of gross pay paid in the tax year 2006/07 of £461.54. If the first bundle and the second bundle related to the same individual then that figure should have been carried forward and should have appeared at the commencement of the second bundle. It did not do so. In the light of these deficiencies the tribunal did not consider the payslips to be of any probative value as to the continuous employment question. The tribunal preferred the evidence of the claimant as supported by his co-worker.

4. At the end of June the claimant's evidence was that he went on holiday until 25 July. This extended over three working weeks for which the tribunal found the claimant received no pay. This was the evidence of the claimant. There was no direct evidence to contradict it since the case of the respondent was that the claimant was not working at all at that time. The tribunal has rejected that evidence of the respondent and preferred the evidence of the claimant. The tribunal accepts the claimant's evidence that he received no pay for that period.

5. The claimant continued to work until 6 October 2006, a Friday. Late on that Friday night, approaching the end of his working day, when he had finished his work, he was taking a rest and eating a banana when a dispute broke out between the claimant and the respondent's representative at the end of which, so the tribunal finds, the claimant threw down his apron and went home. The next day, Saturday he would in the ordinary way have received payment for the week ending the previous Saturday. He was not at work the following day and consequently did not receive payment nor did he ever receive payment for the week in which he left. According to the payslips produced by the respondent in respect of those two weeks a sum of £191.03 nett was due for each week.

6. As regards outstanding wages the respondent accepted that the claimant had not received payment for the final two weeks of his work. The claimant stated that there was a further week for which he had not received payment although he had worked. He stated clearly in his originating application that he had not received payment from 18 September until his departure. However, he stated to the tribunal that he could not remember what week the payments were for, that there were times when the respondent would give him less pay than he was due and make it up the following week and that he could not really be sure about what week he got paid for or when he was paid short. The tribunal regarded this evidence as to the shortage of pay to be less than convincing and did not consider that, in regard to the third week of outstanding wages claimed, the claimant had satisfied the burden of proof laid upon him.

6. The final question for the tribunal was whether the claimant had been dismissed and whether he was entitled to notice pay. The tribunal, as set out above, found that the claimant threw down his apron and left. In the tribunal's view this did not amount to a dismissal and the claimant was not, consequently, entitled to notice pay. The claimant's evidence was that during the dispute which took place he had, in response to suggestions that he had not been doing his job, indicated that he had done a lot that day, that everyone had got everything they wanted, and that it was reasonable for him to take a break. In response to that, according to the claimant's evidence, the respondent had said that if he wanted to go home he could do so. It was common case that both individuals involved in the dispute were angry and were shouting at each other. The respondent's evidence that the argument culminated in the claimant throwing down his apron and going home was more consistent with the clear evidence of reciprocal anger and recrimination than that of the claimant. The tribunal notes that even if it accepted the claimant's version it would still have found there to have been no dismissal since the comment ascribed to the respondent would have been more consistent, in those circumstances, with an indication that he could go home early rather than that he should go home permanently.

8. In the light of the above the tribunal finds that there were three weeks nett wages due in respect of outstanding holiday pay, two weeks nett wages due in respect of outstanding wages and that the claim for wrongful dismissal should be dismissed.

Recoupment

9. No question of recoupment arises.

10. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 22 February 2007, Belfast.

Date decision recorded in register and issued to parties: