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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Conway v Northsec Security Services (NI... [2010] NIIT 5695_09IT (29 March 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/5695_09IT.html
Cite as: [2010] NIIT 5695_09IT, [2010] NIIT 5695_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 5695/09, 6050/09
CLAIMANT: Brendan Joseph Conway
RESPONDENTS: 1 Northsec Security Services (NI) Limited (In Administration)
2 Northsec (UK) Limited
DECISION ON REVIEW
The decision of the tribunal is that the application for review is unsuccessful in all aspects, save that the calculation of holiday pay was incorrect in the decision and should be corrected, as referred to below and in the appended amended decision.
Constitution of Tribunal:
Chairman: Mr Cross (sitting alone)
Appearances:
The claimant appeared in person and was not represented.
The respondents did not appear at the tribunal and neither of them was represented.
Basis of application for review on part of claimant
1. The application of the claimant is made under the provisions of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. These Regulations contains the Rules of the Industrial Tribunals. Under Rule 34 of the Industrial Tribunals Rules of Procedure (“the Rules”), the claimant sought a review of the decision of the Chairman issued to the parties on 13 January 2010 after a hearing on 9 December 2009. The grounds for seeking this review were:-
1. The Chairman did not
award compensation for unfair dismissal to the claimant.
2. The Chairman did not award compensation for loss of key holding money to the claimant.
These two claims for a review were made under Rule 34 (1) (a), being the decision of a tribunal not to accept a claim.
2. The Chairman did not join
this case to a similar case of Barry Flynn against the same respondents
(Case reference 6544/09) and he also failed to join the Department of
Education and Learning, (hereinafter DEL).
3. The calculation of holiday pay due to the claimant was incorrect. These two claims for a review were made under Rule 34 (3) (e) of the Rules, that the interests of justice required the tribunal to review its decision.
Decision of the Chairman
4. The Chairman is unable
to consider the possibility of awarding compensation for unfair dismissal to
the claimant, as the claimant made no claim for such compensation to the
tribunal, in his application dated 27 April 2009 and received by the tribunal
on 28 April 2009, or in his application dated 18 June 2009, received by the
tribunal on 19 June 2009. No other application from the claimant against the
respondent is at present before the tribunal.
5. The claimant’s claim
for key holding money, for a period up to August 2008, when he ceased to be a
key holder, was not referred to in either of the claims that he made to this
tribunal and consequently the Chairman cannot make a decision on the claim, as
it is not before the tribunal and has never been notified to the respondent.
6. At the initial hearing of these claims there was a discussion concerning the possible joining of these claims to that of a Mr Barry Flynn, who was known to this claimant and had a similar claim against the same respondents. However it transpired that Mr Flynn’s claim was ready to be listed and there was consequently no advantage in joining the two claims. There was no detriment to the claimant as a result of this decision not to join the claims. The Chairman discussed with the claimant the position of DEL. DEL was not joined to the claim as it had paid certain money to the claimant and when the Chairman considered the matter, he came to the conclusion, that as DEL had paid all money to the claimant that was required to be paid to him by law, there was no advantage in joining DEL at that stage as there would be no advantage to the claimant.
7. A mistake had been made
by the Chairman with regard to the calculation of holiday pay, as the
calculation was made on a daily rate of £33.64, when the true daily rate was
£47.10. The calculation has been recast in the amended decision attached.
The amended calculation is as follows
28 days holiday due 2008/2009 financial year @ £47.10 net per day = £1,318.80
6 days Statutory holiday pay at the same rate = £ 282.60
---------------
£1,601.40
Chairman:
Date and place of hearing:
Date decision recorded in register and issued to parties:
THE INDUSTRIAL TRIBUNALS
CASE REFS: 5695/09
6050/09
CLAIMANT: Brendan Joseph Conway
RESPONDENTS: 1. Northsec Security Services (NI) Limited (In Administration)
2. Northsec (UK) Limited
DECISION
The decision of the tribunal is that the claimant was employed by the second named respondent at the time of his dismissal and is entitled to be paid a sum of £1,601.40 in respect of holiday pay.
Constitution of Tribunal:
Chairman: Mr Cross (sitting alone)
APPEARENCES
The claimant appeared in person and was not represented.
The respondents did not appear at the tribunal and neither of them were represented.
Findings of Fact
1. The claimant was employed by the first named respondent as a security guard on a site in County Fermanagh. His employment on the site had started on 1 January 1993, with another company that had had the contract for the security of the site. The claimant had been employed on the same site by a number of employers between 1993 and the commencement of his employment with the first named respondent. His contract of employment had reached the first named respondent through the operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006, (hereinafter called TUPE) and its predecessor legislation.
2. The first named respondent went into Administration on 24 March 2009. The claimant’s pay slip for the two weeks ending on 15 March 2009, was issued to him, as on previous months by the first named respondent. From then on the pay slips were issued by the second named respondent. The last one being issued on 27 April 2009. On that date the claimant’s employment was terminated, as the second respondent lost its contract on the site where the claimant worked. No notice was given, but the claimant did have discussions with a Mr McBride about a possible transfer to a site in Omagh, or at the hospital in Enniskillen. Discussions continued for some days but to no avail and the claimant was never given any other post in the properties guarded by the second named respondent. The claimant’s P60 was issued by and in the name of the second named respondent.
3. At the time of his dismissal however the claimant was under the misapprehension that he was still an employee of the first named respondent, as he had never received notification that his contract of employment had been transferred, and he had not noticed the change of company name on the pay slips or on the P60. It was only later, when he was in discussion with the Administrators of the first named respondent, that the transfer was discussed. When the claimant looked again at his pay slips and his P60, he noticed that his contract had been transferred some six weeks before his dismissal. At that stage the claimant requested that the second named respondent should be joined to both the claims and this was done, by order of the tribunal, on 24 September 2009.
4. Although the second named respondent is still trading in Northern Ireland it did not respond to being joined in this claim.
5. The claimant was entitled to 28 days pay for holiday that he had not taken, for the period commencing on 6 April 2008 and ending on the date of dismissal. He was also owed holiday pay for six of the statutory days that he had not taken for the period from 6 April 2008 to the date of dismissal. This later entitlement was as laid down in an Agreement between the then owners of the business, Group 4 Securitas Limited and Amalgamated Transport and General Workers Union.
Decision
6. The tribunal, having been informed that the claimant was paid his redundancy entitlement and notice pay by the Department of Employment and Learning (hereinafter “the Department”), holds that he is entitled to his outstanding holiday pay from the second named respondent, which was the employer of the claimant at the time of his dismissal. The contract of employment had been transferred to the second named respondent. The tribunal does not know the date of the transfer of the claimant’s contract of employment, but his last pay slip from the first named respondent is dated 15 March 2009, and the company went into administration on 24 March 2009, so the transfer must have occurred between those dates, as the next pay slip, in the name of the second named respondent, was dated 29 March 2009.
7. Under TUPE the employer to whom the contract of employment passes on a transfer is responsible for payment of all claims that an employee may have for outstanding pay and holiday entitlement, even though the same accrued before the employment contract was transferred. Consequently the second named respondent is liable to pay the outstanding holiday pay due to the claimant. The amount of the outstanding holiday pay is calculated as follows:-
28 days holiday due for 2008/2009 financial year
@ £47.10 net per day = £1,318.80
6 days Statutory holiday pay at the same rate = £ 282.60
---------------
£1,601.40
8. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 9 December 2009, Belfast.
Date decision recorded in register and issued to parties: