Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/142_12IT.html
Cite as: [2012] NIIT 00142_12IT, [2012] NIIT 142_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 142/12

CLAIMANT: Alice Louise Cupples

RESPONDENTS: 1. Mandy Baird/Corr

2. Damien Corr

DECISION

The unanimous decision of the tribunal is that the claimant is entitled to unpaid wages of £1,680.92; notice pay of £146.22; holiday pay of £280.38; and a penalty of £292.46, totalling £2,399.96.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr R Black

Mr B McCreight

Appearances:

The claimant appeared in person and was not represented.

The respondents appeared in person and was not represented.

1. The claimant was employed as an assistant in the toddler room of a new private nursery started by the first-named respondent. The employment terminated on 14 November 2011. The name of the first-named respondent is amended to:-

Mandy Corr

2. This claim was made much more difficult than it should have been because of almost complete lack of contractual or financial records on the part of the respondents. As a result, the date of commencement of employment was in dispute, the contractual hours were in dispute, the amount of wages due was in dispute and the identity of the employer was also in dispute.

3. The tribunal is satisfied that, on the balance of probabilities, the claimant commenced work on 5 July 2011. It does not accept the respondents’ position that work done at this point in time was done by the claimant on an unpaid voluntary basis. Such proposition is inherently unlikely.

4. The tribunal is also satisfied that the claimant’s employer was the first-named respondent. All claims are therefore dismissed against the second-named respondent. The only involvement of the second-named respondent in this matter appears to have been that he assisted the first-named respondent, his wife, to interview staff when the nursery commenced operations.

5. The tribunal is also satisfied that there was no guaranteed 40 hour week or guaranteed minimum number of hours per week in any contractual agreement reached between the parties. If there had been such an arrangement, the claimant would have objected strenuously to the very low number and very variable number of hours she worked from July onwards and there is no evidence that she did so. It is also clear that the claimant would have continued in the employment of the first-named respondent without complaint had the employment not been terminated by the first-named respondent for business reasons.

6. The claimant received no wages at all in the course of this employment, apart from one payment of £140.00 and one payment of £100.00. She was entitled to the statutory minimum wage of £5.93 per hour and then £6.08 per hour. The claimant did not receive written statement of terms and conditions as required by the Employment Rights (Northern Ireland) Order 1996.

Remedy

7. Unpaid wages

The claimant worked 142.25 hours at £5.93 per hour and 177.20 hours at £6.08 per hour:-

142.25 x £5.93 = £ 843.54

177.20 x £6.08 = £1,077.38

Less payments of £240.00 = £ 240.00

Total £1,680.92

8. The claimant is therefore entitled to £1,680.92 in unpaid wages.

9. The claimant did not receive notice or pay in lieu of notice and is therefore entitled to one week’s pay in lieu of notice. The amount of a week’s pay for these purposes is the average due over the last 12 complete weeks, which is necessarily adversely affected by the extremely variable hours, is:-

24.05 x £6.08 = £146.22

10. There were no contractual provisions relating to holiday entitlement, the claimant is therefore entitled to 28 days’ pro rata for the entire leave year commencing on 5 July. No leave was taken.

The calculation, insofar as it can be made, is therefore:-

¹²⁵/₃₆₅ (fraction of leave year) x 29.24 (daily rate) x 28 = £280.38

11. The first-named respondent failed to provide a written statement of particulars of employment as required by Articles 33(1) and 36(1) of the 1996 Order and the tribunal imposes a penalty of two weeks’ pay:-

£146.22 x 2 = £292.44

12. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Vice President:

Date and place of hearing: 15 May 2012, Belfast

Date decision recorded in register and issued to parties:

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