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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Banaszczyk v Hamilton Morton T/A Patchmills... [2010] NIIT 409_10IT (26 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/409_10IT.html
Cite as: [2010] NIIT 409_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 409/10
CLAIMANT: Piotr Banaszczyk
RESPONDENT: Hamilton Morton T/A Patchmills Farm Meats
DECISION
The claimant is entitled to a redundancy payment, payment in lieu of notice, holidays accrued due and outstanding wages. The respondent shall pay the claimant £1,770.20.
Constitution of Tribunal:
Chairman (sitting alone): Ms M Bell
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented.
1. The claimant in his claim complained that he had not received notice, outstanding wages, payment in lieu of holidays accrued due or a redundancy payment on termination of his employment when the respondent ceased to trade.
2. No response was presented by the respondent.
Issues
3. The issues for the tribunal were:
- Is the claimant entitled to a redundancy payment?
- Is the claimant entitled to pay in lieu of notice?
-
Has the respondent failed to pay
the claimant in lieu of holidays accrued due?
- Has the respondent failed to pay wages due to the claimant?
Evidence
4. The tribunal considered the claim, documentation received from the claimant and heard the claimant’s oral evidence.
Findings of Fact
5. The claimant who was born on 12 April 1971, commenced employment with the respondent on 1 May 2007 as a delivery driver. The claimant was paid approximately £192.05 gross per week, being £187.32 net.
6. The claimant did not receive a written statement of particulars of employment from the respondent or regular payslips.
7. The claimant worked for the respondent as usual, Monday to Friday in the week ending 13 November 2009 but did not receive net wages due to him of £187.32.
8. The claimant worked for the respondent as usual on 16 and 17 November 2009 but when he attended work on 18 November 2009 he found that the respondent’s premises were closed and he was unable to work, he returned again prepared to work on 19 and 20 November 2009 but the respondent’s premises were still closed and have remained so. The claimant has not received any payment of wages from the respondent for the week ending 20 November 2009. When the claimant contacted the respondent he was assured that he would be paid all money outstanding to him.
9. The claimant subsequently received a P45 from the respondent stating his leaving date to be 30 November 2009,but no redundancy payment, payment in lieu of notice, holidays accrued due or outstanding wages have been received.
10. The claimant saved all his paid holidays to take at Christmas each year. No paid holidays had been taken by the claimant in the current holiday year commencing 1 May 2009 prior to termination of his employment.
The Law
11. Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include if the dismissal is wholly or mainly attributable to the fact that his employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him, or to carry on that business in the place where the employee was so employed.
12. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.
13. Under Article 118B of the 1996 Order an employer is required to give minimum notice to terminate the contract of employment of a person of not less than one weeks’ notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.
14. The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulation 13A for a worker to have minimum leave in a year of 5.6 weeks from 1 April 2008, and for the purposes of the regulations that the worker’s leave year begins, where there are no applicable provisions of a relevant agreement, if the worker’s employment began after 23 November 1998, on the date on which that employment began and each subsequent anniversary of that date.
15. Under Regulation 14(2) of the 1998 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.
16. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.
Applying the Law to Facts Found
On consideration of all the evidence before it the tribunal is satisfied of the following:
17. Redundancy Payment
The claimant’s dismissal was by reason of a redundancy as defined in Article 174 of the 1996 Order, the respondent having ceased trading and the claimant is entitled to a redundancy payment calculated in accordance with Article 197 of the 1996 Order as follows;
2 years continuous employment x 1 x £192.05 = £384.10
18. Notice
Article 118B of the 1996 Order implies a minimum notice requirement of two weeks into the claimant’s contract of employment with the respondent, the claimant did not receive proper notice of termination of his employment from the respondent and is entitled to two weeks net pay being £374.64 in lieu thereof.
19. Holidays
The respondent has failed to pay the claimant on termination of his employment payment in lieu of leave accrued due under the Working Time Regulations .The claimant usually worked five days per week and had accrued due holidays for approximately seven out of twelve months of the holiday year, rounded up amounting to 17 days holiday accrued due.
5.6 weeks x 7/12 = 16.33, rounded up = 17 days’ holiday
The respondent shall pay the claimant 17 days’ holiday pay at £37.46 per day being £636.82.
20. Wages
The respondent has breached the claimant’s contract of employment in failing to pay him on termination of his employment wages for the weeks ending 13 and 20 November 2009 during which he worked for the respondent or attended work prepared to carry out work for the respondent. The claimant has suffered a loss, and the tribunal orders the respondent to pay the claimant £374.64 in respect of unpaid wages.
Conclusion
21. The claimant is entitled to a statutory redundancy payment, payment in lieu of his statutory minimum notice entitlement, holiday’s accrued due and outstanding wages.
22. Summary of Compensation Awarded
Redundancy Payment £384.10
Notice £374.64
Holiday Pay £636.82
Wages £374.64
TOTAL £1,770.20
23. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 May 2010, Belfast.
Date decision recorded in register and issued to parties: