Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1667_08IT.html
Cite as: [2009] NIIT 1667_08IT, [2009] NIIT 1667_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1667/08

CLAIMANT: Sylvia Gates

RESPONDENT: Amanda Ferguson

DECISION ON REMEDY

The unanimous decision of the tribunal is that the claimant is entitled to the sum of £355.12 in respect of holiday pay.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mr N Wilkinson

Mr I Rosbotham

Appearances:

The claimant was present and represented herself.

The respondent did not enter a response to the claim and was not present at the hearing.

1. A default judgment was made against the respondent on 20 February 2009 in the following terms:-

“The time for presenting a response having expired, I determine that the claimant’s claim in respect of holiday pay is well founded.

Any remedy to which the claimant is entitled will be determined at hearing, notice of which will be issued shortly.”

2. The issue before the tribunal was:-

How much is the claimant entitled to pursuant to the default judgment?

SOURCES OF EVIDENCE

3. The tribunal heard evidence from the claimant and was presented with relevant documentation which included pay slips, contractual documentation and correspondence from the respondent dated 2 September 2008.

FINDINGS OF FACT

4. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) The claimant presented her claim to the tribunal on 6 November 2008 claiming £350.95 in respect of holiday pay. In paragraph 12 of her claim form a detailed computation was set out in relation to how the claimant arrived at this sum. The Tribunal Office forwarded a copy of the claim form to the respondent on 9 December 2008. A response was due on 6 January 2009. A response was not entered and a default judgment was made on 20 February 2009 in the terms set out at paragraph 1. of this decision. Correspondence was then forwarded to the respondent on 20 February 2009 in the following terms:-

“DEFAULT JUDGEMENT

Industrial Tribunals Rules of Procedure 2005

A chairman has decided that a default judgement be issued under Rule 8 of the Industrial Tribunals Rules of Procedure 2005. This is enclosed.

As the judgement deals only with liability, the conciliation officer continues to have a duty to conciliate in this case. That duty will now end on 6 March 2009. Unless you and the claimant agree a remedy a hearing will be arranged.

You have the right to apply for a review of the default judgement. If you wish to do so you must apply within 14 days of the date of this letter. Your review application must include an application for an extension of the time limit for presenting a response; an explanation of why the response was not presented within the original time limit (and why no application for an extension of that time limit was made). The response you now wish to present must be attached to the above correspondence.

If you believe that the judgement is wrong in law you may also appeal to the Court of Appeal provided you do so within 42 days of the date of this letter.

Yours sincerely

For the Secretary of the Tribunals”

The respondent did not respond to this correspondence. On 6 July 2009 a Notice of Hearing was forwarded to both the claimant and the respondent. The claimant received the Notice of Hearing on 7 July 2009.

(ii) The respondent faxed two items of correspondence to the Tribunal Office dated 27 July 2009 requesting a postponement of the hearing. The claimant objected to any such postponement. At the outset of the hearing, the tribunal considered the request for a postponement and the claimant’s submissions in relation to same. The respondent had indicated that correspondence regarding the hearing had not been received until 27 July as the premises had been closed from 10 July until that date. The tribunal found this claim surprising in light of the fact the claimant received a Notice of Hearing on 7 July 2009.

(iii) The claimant, while sympathetic in relation to the tragic incident, referred to by the respondent in her correspondence requesting a postponement, nevertheless referred to the fact that she (the claimant) had received the Notice of Hearing on 7 July and claimed that the respondent’s premises were open after that date. She also claimed that the tragic incident had occurred in premises across the road from the respondent’s premises and, as far as she was aware, that the nursery had not been closed. She also relied on the fact that the claim had been ongoing for a considerable time. After careful consideration, and given the sequence of correspondence as outlined above, the tribunal refused the postponement request and proceeded with the hearing.

(iv) The tribunal is satisfied that the claimant was employed by the respondent from 18 February 2008 until 27 June 2008 as a deputy manager. It is also satisfied with the wages analysis and leave due as set out in paragraph 12 of her claim form, subject to the correct calculation for wages for April, May and June 2008 being £ £2885.35 and not £2884.65. This means that the figure for daily pay should be £44.39 and not £44.38. There is no evidence in the contractual documentation placed before the tribunal as to when the leave year commenced.

THE LAW

5. The law in relation to annual leave entitlement is contained in Regulation 13 of the Working Time Regulations (Northern Ireland) 1998, as amended. The tribunal specifically considered the amendments made by the Working Time (Amendment) Regulations (Northern Ireland) 2007, and especially Regulation 13A.

CONCLUSIONS

6. Having considered the evidence together with the findings of fact and the relevant law, the tribunal concludes as follows:-

(i) The claimant, as a worker, had been continuously employed by the respondent for a period in excess of 13 weeks, and therefore has an entitlement to annual leave in accordance with Regulation 13 of the Working Time Regulations. A worker at the material time in this case, was entitled to 24 days leave per year.

(ii) On the basis of the claimant’s evidence and paragraph 12 of her claim form, the tribunal is satisfied that the claimant is entitled to 8 days leave at a net rate of £44.39 per day = £355.12.

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

Chairman:

Date and place of hearing: 28 July 2009, Belfast.

Date decision recorded in register and issued to parties:

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