Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/382_09.html
Cite as: [2009] NIIT 382_09IT, [2009] NIIT 382_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00382/09

CLAIMANT: Kenneth Jackson

RESPONDENT: Anthony McCauley T/A AML Transport

DECISION

The unanimous decision of the tribunal is that the respondent is hereby ordered to pay to the claimant: a total sum of £12,555 in respect of outstanding holiday pay, notice monies, statutory redundancy payment and unpaid wages.

Constitution of Tribunal:

Chairman: Ms Turkington

Members: Mr Burnside

Mr Hanna

Appearances:

The claimant appeared and was represented at the hearing by Mr Bernard, Barrister-at-Law instructed by Fisher and Fisher Solicitors.

The respondent had not lodged a response form and did not appear at the hearing.

The Claims

The claimant brought the following claims before the tribunal:-

A claim for pay in lieu of holidays accrued but not taken at the date of termination of the claimant’s contract of employment.

A claim for breach of contract in respect of the respondent’s failure to pay notice monies.

A claim in respect of the respondent’s failure to pay a statutory redundancy payment to the claimant upon termination of his employment.

A claim in respect of unpaid wages.

The Issues

The issues to be determined by the tribunal were:-

Whether the claimant had accrued holidays which were accrued but not taken at the date of termination of his contract and, if so, the amount of pay in lieu of such holidays due to the claimant.

Whether the respondent failed to provide the required period of notice to the claimant or to pay the claimant in lieu of notice and, if so, the amount of pay in lieu of notice due to the claimant.

Whether the claimant’s employment was terminated by reason of redundancy and whether the claimant was therefore entitled to a statutory redundancy payment and, if so, the amount of such statutory redundancy payment.

Whether the respondent failed to make payment to the claimant in respect of wages earned and, if so, the amount of such unpaid wages.

Disposal of the claim in the absence of the respondent

The respondent did not appear at the hearing. The respondent had not presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

The tribunal heard oral evidence from the claimant and considered a number of documents submitted on behalf of the claimant.

Facts of the Case

Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted on behalf of the claimant, the tribunal found the following relevant facts:-

The claimant whose date of birth is 3 July 1956 started his employment as a lorry driver for the respondent on or about 1 September 2003. The claimant never received a statement of main terms and conditions of employment.

The claimant worked 40 hours per week on average and his take home pay was £450 per week paid by cheque. The claimant did not receive pay slips.

The claimant’s employment was terminated by the respondent on 28 November 2008 when the respondent told the claimant that he was “de-hiring” the claimant’s lorry and that the claimant no longer had a job.

The claimant was entitled to holidays under the Working Time Regulations. The holiday year operated by the respondent ran from 1 January to 31 December. During the 2008 holiday year, the claimant did not take any holidays. Therefore, his full holiday entitlement under the Regulations was outstanding on the termination of his employment.

The claimant did not receive notice of termination of his employment nor did he receive pay in lieu of notice.

The claimant did not receive any statutory redundancy payment from the respondent.

During the last few months of his employment with the respondent, the claimant was only paid sporadically receiving only 1 weeks pay in July and in August and no pay from September onwards. At the date of termination of his employment, the claimant had earned but had not received a total of 13 weeks pay.

The claimant’s solicitors wrote to the respondent on 9 December 2008 setting out the claimant’s complaints in respect of outstanding holiday pay, pay in lieu of notice, redundancy payment and unpaid wages. The respondent did not make any response to that letter.

Statement of Law

Under Regulation 13 of the Working Time Regulations (as amended), a worker is entitled to a total of 4.8 weeks paid leave in any leave year beginning on or after 1 October 2007 but before 1 April 2008. By Regulation 14, where a worker’s employment is terminated during the course of his leave year and on the termination date, the proportion of leave which he has taken is less that the proportion of the leave year which has expired, the employer must make a payment in lieu of leave accrued but not taken.

By Article 118 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), the notice required to be given by an employer to terminate the contract of employment of an employee is one week’s notice for each year of continuous employment between 2 years and 12 years.

Under Article 170 of the Order, an employer shall pay a redundancy payment if an employee is dismissed by reason of redundancy. By Article 174, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished.

By Article 45 of the Order, an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction. A complete failure to pay wages on any occasion constitutes a deduction from wages.

Conclusions

Since he had not taken any holiday during the 2008 holiday year, the claimant was entitled to 4.8 weeks paid holiday (pro rata) on termination of his employment on 28 November 2008. The claimant is entitled to pay in lieu of holidays as follows:-

4.8 weeks @ £450 per week multiplied by 11/12 = £1,980.

24. At the date of termination of his employment, the claimant had 5 years continuous employment with the respondent. The claimant was therefore entitled to 5 weeks notice or 5 weeks pay in lieu of notice. Since the claimant did not receive notice or pay in lieu, the claimant is entitled to pay in lieu of notice as follows:-

£450 per week multiplied by 5 weeks = £2,250.

25. The tribunal had no hesitation in concluding that the claimant’s employment was terminated by reason of redundancy in view of the clear indication from the respondent that he was reducing the number of lorries which he operated. The claimant is therefore entitled to a statutory redundancy payment as follows:-

1.5 weeks pay (capped at £330) for each full year of continuous employment during which the claimant was aged 41 or over – 1.5 multiplied by £330 multiplied by 5 = £2,475.

26. The tribunal concluded that the claimant did not receive any wages for a total of 13 weeks prior to the date of termination of his employment and the claimant is therefore entitled to the following payment:-

13 weeks multiplied by £450 per week = £5,850.

27. The total sum due to the claimant by the respondent is £12,555.

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

Chairman:

Date and place of hearing: 6May 2009, Belfast.

Date decision recorded in register and issued to parties: