Industrial Tribunals Northern Ireland Decisions

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Cite as: [2013] NIIT 1065_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1065/13

CLAIMANT: Malgorzata Rohde

RESPONDENT: Bartlomiej Grabowski t/a Bart’s Kebab

DECISION

It is the decision of the tribunal that the claimant is entitled to receive holiday pay in the sum of £78.40. She is also entitled to receive a week’s pay in lieu of notice in the sum of £89.45.

Constitution of Tribunal:

Chairman (sitting alone): Ms W A Crooke

Appearances:

The claimant appeared and represented herself.

Mr Grabowski also appeared and represented himself.

The title of the respondent was changed to Bartlomiej Grabowski t/a Bart’s Kebab.

SOURCES OF EVIDENCE

1. The claimant gave evidence on her own behalf and Mr Stanislaw Krogulski also gave evidence on her behalf.

2. Mr Grabowski, the respondent, also gave evidence on his own behalf.

3. There was no agreed bundle but both sides produced documents to the tribunal which were considered in the course of reaching its decision.

THE CLAIM AND THE DEFENCE

4. The claimant claimed that she was entitled to receive the sum of £450.00 of holiday pay and the week’s pay in lieu of notice of £149.00. Mr Grabowski, the respondent, claimed that she had been paid the full holiday entitlement of £400.00 and was not entitled to pay in lieu of notice.

THE RELEVANT LAW

5. The relevant law relating to holiday pay is found in the Working Time (Northern Ireland) Regulations 1998 (the Regulations). The relevant law in relation to computation of a weekly wage is found in Article 18 of the Employment Rights (Northern Ireland) Order 1996.

FACTS

6. The claimant worked for the respondent in his fast food business from 7 September 2011 to 7 March 2013.

7. While she was on sick leave she was dismissed by the respondent. He alleged that this was for smoking cannabis. The respondent did not produce any of the standard statutory letters to comply with the procedures set out in Schedule One of the Employment Order (Northern Ireland) 2003. The claimant did not have a disciplinary hearing or an appeal.

8. There was a divergence in the evidence between the claimant and the respondent but eventually it appeared that although there was a variation in the hours worked weekly by the claimant, both claimant and respondent agreed that she was paid £45.00 per day which was based upon a nine hour day and the claimant normally worked Saturday and Sunday, although sometimes she would have worked a half day on Friday and a half day on Sunday with her full day on Saturday making up her average 18 hours per week. Although Mr Grabowski claimed that he did not pay the claimant for her two hour break, in practice as she was paid £45.00 per day which comprised a working day of nine hours at a rate of £5.00 per hour, we find that the claimant was paid £5.00 per hour for a nine hour working day. As an hourly paid worker the claimant is entitled to 100 hours 48 minutes of holiday per year (rounded up to 101 hours). It appeared that the claimant did do some additional hours upon request but inadequate records were produced by the claimant and the respondent so her entitlement has been calculated in accordance with the Regulations.

9. Mr Grabowski did not dispute that the claimant had taken no holidays in the tax year from 6 April 2012 to her termination date of 7 March 2013.

CONCLUSIONS

10. I find that the claimant is entitled to receive a payment for her untaken holidays at the end of her employment with the respondent. This is an amount rounded up to 92 hours as the claimant did not work for the final four weeks of the tax year in which her employment was terminated.

101 hours - 8 hours 42 minutes (Rounded up to 9 hours) = 92 hours

11. According to Articles 18(2) and (3) of the Employment Rights (Northern Ireland) Order an amount of a week’s pay is calculated as follows:-

“(2) The amount of a week’s pay is the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.

(3) For the purposes of paragraph (2) -

(a) the average number of weekly hours is calculated by dividing by 12 the total number of the employees normal working hours during the relevant period of 12 weeks; and

(b) the average hourly rate of remuneration is the average hourly rate of remuneration payable by the employer to the employee in respect of the relevant period of 12 weeks.”

12. It appeared that various methods could be used to calculate the claimant’s weekly average rate of pay. According to the P45 submitted by the claimant’s Accountant, the claimant had received the sum of £5,760.00 for the period from 6 April 2012 to 7 March 2013. From this the respondent submitted that the £400.00 already paid in respect of holiday pay should be deducted. Accordingly, £5,760.00 - £400.00 = £5,360.00 ÷ 52 = £103.07 per week. Additionally, the tribunal also calculated the average weekly rate of pay over the last 12 weeks of the claimant’s employment in accordance with Article 18 as follows:-

Start date/finish date:	17/12/12 to 23/12/12	0.00
	24/12/12 to 30/12/12	0.00
	31/12/12 to 06/01/13	0.00
	07/01/13 to 13/01/13	£100.00
	14/01/13 to 20/01/13	£100.00
	21/01/13 to 27/01/13	£215.00
	28/01/13 to 03/02/13	£150.00
	04/02/13 to 10/02/13	£95.00
	11/02/13 to 17/02/13	£115.00
	18/02/13 to 24/02/13	£105.00
	25/02/13 to 03/03/13	£30.00
	04/03/13 to 09/03/13	£0.00
	Total:	£910.00

Dividing this by the 12 weeks of employment, the average weekly rate is £75.83.

Taking an average of the claimant’s figures for the last 12 weeks of employment and the figure obtained from the P45 as follows, I calculate the claimant’s average weekly wage as follows:-

£75.83 + £103.07 ÷ 2 = £89.45

The claimant’s entitlement to holiday pay is 92 hours x £5.20 = £478.40.

Balance due £78.40.

13. The claimant’s contract of employment was terminated without notice allegedly on the basis that she had been witnessed smoking cannabis. No statutory procedures were entered into. No hearings were held. She was summarily dismissed without notice. The claimant did not claim in her claim form that she had been unfairly dismissed. The tribunal finds that she is entitled to one week’s notice upon termination of her employment in accordance with Article 118 of The Employment Rights (NI) Order 1996 in the sum of £89.45.

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

Chairman:

Date and place of hearing: 25 September and 4 November 2013, Belfast.

Date decision recorded in register and issued to parties:

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