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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O' Brien v P C Media Solutions Ltd [2010] NIIT 303_10IT (30 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/303_10IT.html
Cite as: [2010] NIIT 303_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 303/10
CLAIMANT: Paul O’Brien
RESPONDENT: P C Media Solutions Ltd
DECISION
The unanimous decision of the tribunal is as follows:-
The respondent failed to pay
the claimant one week’s notice pay as required under his contract of employment.
The respondent made an
unlawful deduction from the claimant’s wages since the claimant received no pay
in respect of his lying week.
The respondent must pay to the claimant 6 days pay in respect of accrued holiday taken by the claimant.
That the respondent is hereby ordered to pay to the claimant a total sum of £1,240.07.
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr R Gray
Mr J Holland
Appearances:
The claimant appeared and represented himself at the hearing.
The respondent had not lodged a response form and did not appear at the hearing.
The Claims
1. The claimant brought the following claims before the tribunal:-
a. A claim for breach of contract in respect
of the respondent’s failure to pay notice monies.
b.
A claim in respect of unpaid
wages in respect of the claimant’s lying week.
c. A claim for pay in respect of accrued holidays taken by the claimant during his employment.
The Issues
2. The issues to be determined by the tribunal were:-
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 respondent failed to make
payment to the claimant in respect of wages earned for his lying week and, if
so, the amount of such unpaid wages.
Whether the claimant had taken accrued holidays for which he did not receive pay.
Disposal of the claim in the absence of the respondent
3. 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 (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the respondent was therefore not entitled to take any part in the proceedings at the hearing. The tribunal was satisfied that the notice of hearing was sent to the respondent in good time before 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
4. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.
Facts of the Case
5. Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-
6.
The claimant started his
employment as a sales executive for the respondent on
10 August 2009. The claimant received a statement of main terms and conditions
of employment.
7.
By clause 16 of the statement of
main terms and conditions of employment, the claimant was entitled to receive
one week’s notice of the termination of his employment.
8.
On 20 November 2009, the
respondent handed the claimant a letter terminating his employment with
immediate effect. The claimant did not receive any notice or pay in lieu of
notice.
9.
Under clause 8 of the statement
of main terms and conditions of employment, the claimant was required to work a
lying week, which was to be re-credited to the employee on calculation of final
pay. In line with this clause, one weeks pay was deducted from the claimant’s
pay for the first month of his employment, that is August 2009.
10.
The claimant did not receive any
payment for the lying week in his final payment. The Managing Director of the
respondent sent a text message to the claimant on
14 January 2010 when he referred to this saying “if there was money in the
business you would be paid your lying week”.
11.
The claimant’s salary was £12,000
per annum gross until the end of his probationary period of 8 weeks.
Thereafter, his salary was £18,000 per annum. His net pay for two weeks in
August 2009 was £497.14 and his net pay for two weeks in November was £626.22.
12.
By clause 18 of the statement of
main terms and conditions of employment, the claimant was entitled to 20 days
paid annual holiday plus eight bank/public holidays.
13.
The claimant was off work on the
bank holiday Monday at the end of August 2009 for which he received pay. He
also took annual leave with the approval of the respondent on 14 October and six
days during November 2009.
14.
The claimant did not receive any
pay for the holidays taken in November.
15.
The claimant wrote a detailed
letter to the respondent on 7 December 2009 in which he raised complaints about
all the matters included in these proceedings. Other than the text message
referred to above, the respondent failed to respond to this grievance.
Statement of Law
16.
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 with between one month and two years’ continuous employment is one
week.
17.
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.
18.
Under Regulation 13 of the
Working Time Regulations (as amended), a worker is entitled to a total of 5.6 weeks paid leave in any leave
year.
19.
The statutory grievance procedure set out in the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) is applicable to all the elements of this
case. The standard statutory grievance procedure requires the employee to put
his complaint in writing to the respondent and for the respondent to invite the
employee to a meeting to discuss the grievance and then an appeal meeting.
20. Pursuant to Article 17 of the 2003 Order, where it appears to the tribunal that the non-completion of the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50 per cent.
Conclusions
Notice pay
21. At the date of termination of
his employment, the claimant had 3 months continuous employment with the
respondent. Accordingly, under both his contract of employment and the
statutory right to a minimum period of notice, the claimant was entitled to one
week’s notice or one week’s 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:-
2 weeks net pay in November 2009 =
£626.22
Therefore, one week’s notice pay =
£313.11
Lying week/unpaid wages
22. The tribunal concluded that
the claimant did not receive any wages in respect of his lying week and the
claimant is therefore entitled to the following payment:-
2 weeks net pay in August
= £497.14
Therefore one week’s net pay for lying
week worked in August = £248.57
Holiday pay
23. The claimant was employed from 10 August to 20
November 2009, a total of 101 days. Under both his contract of employment and
the Working Time Regulations, the claimant was entitled to 5.6 weeks or 28 days
paid holidays per annum. The claimant’s entitlement to paid holidays for the
duration of his employment is calculated as follows:-
101 days worked / 365 days per annum x
28 days = 8 days
24. The claimant did receive two
days paid holiday, namely the August bank holiday and 14 November 2009. The
claimant had taken a further six days holiday. He was entitled to be paid for
all of these days, but had not received pay.
The claimant is entitled
to a payment in respect of holiday pay calculated as follows:-
4 days holiday at rate of pay during
first 8 weeks of employment
Net pay for 2 weeks = £497.14
Net pay for 4 days = £497.14 / 10 x 4
= £198.85
2 days holiday at rate of pay for
remainder of employment
Net pay for 2 weeks = £626.22
Net pay for 2 days = £626.22 / 10 x 2
= £125.24
Statutory grievance procedure
25. The claimant raised a written grievance with
the respondent in accordance with step 1 of the statutory grievance procedure.
The respondent failed to make any response to this grievance. The tribunal
concluded that the respondent was wholly responsible for the non-completion of
the applicable statutory procedure. The tribunal took into account that the
respondent took no steps whatsoever to seek to comply with the procedure.
Accordingly, the tribunal considers that it would be appropriate to increase
its award by a figure towards the higher end of the scale between 10 and 50 per
cent. The tribunal concluded that the appropriate uplift in this case is 40
per cent.
26. The uplift in respect of
non-completion of the statutory procedures is calculated as follows:-
Total award to the claimant
= £313.11 + £248.57 + £198.85 + £125.24 =
£ 885.77
Uplift of 40% = £354.30
Total uplifted award = £1,240.07
27. The total sum due to the claimant by the respondent is £1,240.07
28. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 8 June 2010, Belfast.
Date decision recorded in register and issued to parties: