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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McDonald v Mervyn McAllister [2010] NIIT 01657_10IT (27 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/01657_10IT.html
Cite as: [2010] NIIT 1657_10IT, [2010] NIIT 01657_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1657/10
CLAIMANT: Stephen Raymond McDonald
RESPONDENT: Mervyn McAllister
DECISION
The unanimous decision of the tribunal is that the claimant is entitled to a payment of £1,173.53, comprising £513.53 in respect of holiday pay and a penalty of £660 in respect of the respondent’s failure to provide written particulars of employment. The respondent is directed to pay the claimant £1,173.53.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Mr R Black
Mr A Crawford
Appearances:
The claimant appeared in person.
The respondent did not enter a response, did not appear and was not represented.
1.
The claimant was employed by the
respondent as head chef in the Marine Hotel, Ballycastle from 18 August 2009 to
25 March 2010.
2.
He was laid off without pay from
7 January 2010 to 25 March 2010 when he resigned. There was no written
contract of employment and there was no oral contractual term or implied
contractual term which permitted the respondent to lay off the claimant in
these circumstances.
3.
The claim was for holiday pay.
The oral agreement was for 28 days leave per annum. The leave year was the
financial year and the claimant had taken five days’ leave.
4.
The claimant is entitled to a
payment of £513.53 in respect of untaken annual leave calculated as follows:-
Rate of accrual for holiday leave 142 x 28 = 10.9 days
365
Less 5 days taken
= 5.9 days
Average net daily pay = £ 87.04
Total 5.9 x £87.04 = £513.53
5.
The claimant was never provided
with written particulars of employment as required by Article 33 of the
Employment Rights (NI) Order 1996. The claimant had made repeated requests for
such particulars.
Under Article 27 of the Employment (NI) Order 2007 the tribunal has power to
impose a penalty in such circumstances of between two and four weeks’ pay
calculated in accordance with the 1996 Order and subject to the statutory cap
imposed by Article 23 of that Order.
6.
The tribunal, in the
circumstances of this case, imposes a penalty of two weeks’ pay, subject to the
statutory cap of £330 per week, ie £660.
7.
The total payable by the
respondent to the claimant is £1,173.53.
8. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 7 September 2010, Belfast.
Date decision recorded in register and issued to parties: