Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/02606_11IT.html
Cite as: [2012] NIIT 2606_11IT, [2012] NIIT 02606_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2606/11

CLAIMANT: Henry Francis Lynn

RESPONDENTS: 1. Convery Haulage Limited (in administration)

2. Department for Employment & Learning

DECISION

The tribunal dismisses the claimant’s claim for holiday pay under Rule 27(5) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

Constitution of Tribunal:

Chairman (Sitting alone): Ms M Bell

Appearances:

The claimant did not appear and was not represented.

The first-named respondent did not appear and was not represented.

The second-named respondent was represented by Mr Curran.

1. The claimant in his claim sought four weeks holiday pay for ‘July 2011 December 2010’ following the first named respondent going into administration in May 2011.

2. No response was entered by the first-named respondent.

3. The second-named respondent in its response resisted the claimant’s claim.

ISSUES

4. The issues before the tribunal were:

i. Has the tribunal jurisdiction to entertain the claimant’s claim for holiday pay in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 regarding the time limits for presenting claims? That is:-

- was the claim presented in time? If not;

- was it not reasonably practicable for it to be presented in time? If so;

- was it presented within such further period as the tribunal considers reasonable?

If so;

ii. Is the claimant due holiday pay?

EVIDENCE

5. The tribunal considered the claim, response from the second-named respondent and heard from Mr Curran on behalf of the second-named respondent.

FINDINGS OF FACT

6. The claimant’s employment with the first-named respondent came to an end in May 2011 upon the first-named respondent going into administration on 4 May 2011.

7. The claimant made application to the second-named respondent and was paid a redundancy payment, compensation for loss of notice and arrears of pay by the second-named respondent but his application for holiday pay was rejected on 8 September 2011 due to a lack of supporting documentation or information to verify his claim and following advice from the first-named respondent’s administrators that no holiday pay was outstanding.

8. The claimant presented his claim to the office of the tribunals on 17 October 2010.

THE LAW

9. Under Rule 27(5) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 if a party fails to attend or to be represented, for the purpose of conducting the party’s case at the hearing under Rule 26, at the time and place fixed for such hearing the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date. Under Rule 27(6) of the 2005 Regulations if a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.

10. The Industrial Tribunal has jurisdiction to hear contract claims for the recovery of damages under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 subject to the time limits set out in Article 7. Under Article 7 an Industrial Tribunal shall not however entertain a contract claim unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the applicable period, within such further period as the tribunal considers reasonable.

11. Under the Working Time Regulations (Northern Ireland) 1998 Regulation 30(2) an Industrial Tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the date on which it is alleged the payment should have been made, or, within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable to be presented before that period of three months.

APPLYING THE LAW TO FACTS FOUND

12. Having examined all of the information in its possession made available by the parties the tribunal considers there is insufficient evidence before it to satisfy it that it has jurisdiction to entertain the claimant’s claim, the claim appearing to have been presented over five months after the claimant’s employment ended, and in any event were it satisfied that it has jurisdiction to hear the claim there is insufficient evidence before the tribunal to persuade it that any payment is outstanding to the claimant in respect of holiday pay.

CONCLUSION

13. The tribunal dismisses the claimant’s claim for holiday pay under Rule 27(5) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

Chairman:

Date and place of hearing: 5 January 2012, Belfast.

Date decision recorded in register and issued to parties:

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