Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/2398_12IT.html
Cite as: [2013] NIIT 02398_12IT, [2013] NIIT 2398_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2398/12

CLAIMANT: Alan Edward Nixon

RESPONDENTS: 1. Rainbow Garland Belfast Ltd

2. Michelle Dougan

3. Bryan West

DECISION

The claimant’s claims in respect of unpaid wages, holiday pay, notice pay and failure to provide written terms and conditions of employment are well-founded and the first-named respondent is ordered to pay the claimant the sum of £2,176.00, calculated as set out in the decision below.

Constitution of Tribunal:

Chairman (Sitting alone): Miss E M McCaffrey

Appearances:

The claimant appeared in person.

The respondent had not entered a response and did not appear.

ISSUES

1. The claims before me were for:-

1. Unlawful deduction of wages (Article 45, Employment Rights (NI) Order 1996 (“the ERO”));

2. Failure to pay notice pay (Article 118 ERO);

3. Failure to pay accrued holiday pay (Working Time regulations, as amended);

4. Failure to provide written terms and conditions of employment (Article 33 ERO and Article 27, Employment (NI) Order 2003 (“the 2003 Order”);

5. Failure to provide itemised payslips (Article 40 and following, ERO).

FACTS

2. The facts found in this case were as follows. The claimant was employed by the first-named respondent as a manager from 3 July 2012 until 26 August 2012 when he was dismissed by the second-named respondent by text message. She and Bryan West were directors of the first-named company. The claimant confirmed that he understood that the first-named respondent was a limited company and accordingly I order that the title of the first-named respondent is amended to Rainbow Garland Belfast Limited and the second and third named respondents are dismissed from the proceedings.

3. The claimant had agreed with the respondent that he would be paid £633.66 per week gross and £500.00 per week net. The first week he was at work he received a pay slip which he said was wrong and he returned it to the accountants who had prepared it. He did not receive any further payslips, nor did he receive a contract of employment. The claimant asked for his contract and for details of the employer’s liability insurance, but did not receive either. He said that he had fallen and injured his hand while at work and when he notified his employers of this, he received a text from Michelle Dougan, saying he was dismissed. Following this the claimant received a text saying he was not to come back to work, there were discrepancies in stock and that there was money missing from the safe. He contacted Bryan West, who initially said things would “blow over”, but he was subsequently told not to return to work. At this stage the claimant had not been paid in full for two weeks, but had received only £250.00. A friend called with the respondent on his behalf the following week, but was given only £400.00, which left a balance outstanding for the two weeks of £350.00 regarding wages. The claimant had not taken any holidays while working for the respondent, but said he had agreed with the respondent that he should have 4 weeks’ holiday each year.

DECISION

4. In view of the unchallenged evidence of the claimant, I find that his claims are
well-founded and I order the first-named respondent to pay the claimant compensation as follows:-

1. Unpaid wages: £350.00

2. Unpaid notice pay

Given that the claimant had 2 months’ service,

he is entitled to 1 week’s notice or payment in lieu: £500.00

3. Payment for accrued holidays not taken. Given that the minimum statutory entitlement to holidays is 28 days per year, the claimant was entitled to 4.66 days holiday for 2 months service. On the basis of his net pay, he was entitled to £466.00 for his untaken holiday.

£500 / 5 = £100.00 per day x 4.66 = £466.00

5. Failure to provide written terms and conditions of employment. The claimant was not provided with written terms and conditions of employment, although he had been employed for 8 weeks and an employer is due to furnish the statement of written terms and conditions no later than two months after the beginning of the employment (Article 33 ERO). Under the 2003 Order, the Tribunal shall make a minimum award of 2 weeks’ gross pay, and may make an award of up to 4 weeks’ gross pay if it considers it just and equitable, subject to the statutory limit of £430.00 per week at the date of the claimant’s dismissal. In this case, given the short duration of the claimant’s employment, I consider it appropriate to make an award of 2 weeks’ gross pay and so I order the respondent to pay the claimant the sum of £860.00 in respect of this part of his claim.

6. Failure to provide itemised pay statements. I accept the claimant’s evidence on this point and the remedy set out in Article 44 is that I should make a declaration to that effect. Article 44 (4) further provides that:-

“Where…. The tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application of the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.”

In this case, the claimant was dismissed on 26 August 2012 and his claim form was received at the Office of the Industrial Tribunals on 23 November 2012, almost 13 weeks later. As he did not receive any payment from the respondent during those 13 weeks, there were no unlawful deductions and so I cannot make any award to the claimant.

7. Accordingly, I order the respondent to pay to the claimant the sum of £2,176.00 in respect of the various claims set out above.

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

Chairman:

Date and place of hearing: 12 February 2013, Belfast.

Date decision recorded in register and issued to parties:

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