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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Graham v The Zipyard Coleraine [2012] NIIT 00156_12IT (31 May 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/156_12IT.html
Cite as: [2012] NIIT 00156_12IT, [2012] NIIT 156_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 156/12
CLAIMANT: Bridgene Graham
RESPONDENT: The Zipyard Coleraine
DECISION
The claimant’s claim in respect of holiday pay is well-founded and it is ordered that the respondent shall pay to the claimant the sum of £1,092 in respect of holiday pay.
Constitution of Tribunal:
Chairman (Sitting alone): Mr P Buggy
Appearances:
The claimant was self-represented.
The respondents were debarred from participating in the proceedings, because they had not presented any Response within the relevant time-limit.
REASONS
1. “The Zipyard Coleraine” is the trade name under
which Mr Michael Ferris and
Mr Michael Smith run a business. The claimant was the Manageress of that
business.
2. In the context of these proceedings, the claimant has made a number of complaints about the behaviour of the respondents. However, the only claim which she has actually made on her claim form is a claim in respect of holiday pay.
3. The claimant gave evidence on oath. I formed the view that she was a truthful and accurate witness.
4. I was satisfied, that by the time of the termination of her employment, that the claimant had accrued entitlement to holidays which had not as yet been taken. I am satisfied that she is entitled to money in respect of those untaken holiday leave entitlements.
5. On the basis of the information supplied by the claimant, I am satisfied that she is still due £700 holiday pay (even when due allowance has been made for holiday pay which was given to her after the termination of her employment).
6. The claimant’s holiday pay entitlements have been assessed on the basis of the following:
(1) The entitlements have been assessed on the basis of gross pay.
(2) The entitlements have also been assessed on the basis that the claimant worked a five day week for the respondents during the first five months of her employment and worked a four day week for the respondents during the following three and a half months of her employment, and that she worked three extra days (over and above the then required five days per week) during the first six months of her employment.
7. I am satisfied that the claimant was never provided with a written statement of employment particulars.
8. The effect of Article 27 (3) of the Employment (NI) “2003” Order is as follows. If an industrial tribunal makes an award to an employee in respect of a breach of contract claim, and (when the proceedings were begun) the employer was in breach of their duty to the employee regarding the provision of written employment particulars, then (subject to paragraph (5) of the Article) the consequences are as follows:
(1) The tribunal must increase the award by “the minimum amount”.
(2) It may, if it considers it just and equitable in all the circumstances to do so, increase the award by “the higher amount” instead.
9. Paragraph (5) of Article 27 is to the following effect. The general duty, to augment a breach of contract award, by taking account of a failure to provide employment particulars, does not apply if there are exceptional circumstances which would make an increase unjust or inequitable. In the context of this case, I am unaware of any relevant “exceptional circumstances”.
10. In the context of this case, I am unaware of any relevant “exceptional circumstances”. Accordingly, the general duty, to augment the amount of a breach of contract award, so as to take account of a failure to revive particulars, exists in the circumstances of this case.
11. I have decided to augment the award by the “minimum amount”, because the respondents’ business is a relatively small business.
12. The “minimum amount” is an amount equal to two weeks pay. I am satisfied that, at the end of her period of employment, the claimant was earning gross weekly wages of £196 per week. Accordingly, the breach of contract compensation will be augmented by £392.
13. On the basis outlined above, and taking account of the amounts which have been paid to the claimant in respect of untaken holidays, I have decided that the claimant is entitled to £700 in respect of holiday pay debt.
14. The sum of £392 and £700 is £1,092.
15. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 15 May 2012, Belfast.
Date decision recorded in register and issued to parties: