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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smith v Rainbow Garland Limited [2013] NIIT 722_13IT (16 August 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/722_13IT.html
Cite as: [2013] NIIT 722_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 722/13
CLAIMANT: Dale Mitchell Smith
RESPONDENT: Rainbow Garland Limited
DECISION
The unanimous decision of the tribunal is:-
1. That the correct respondent is Rainbow Garland Limited.
2. That the respondent is hereby ordered to pay to the claimant the sum of £577.60 in respect of outstanding holiday pay.
3. That the respondent is hereby ordered to pay to the claimant the sum of £178.75 in respect of notice monies.
4. That the respondent is hereby ordered to pay to the claimant the sum of £212.80 in respect of unpaid wages.
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr A Crawford
Mr B Collins
Appearances:
The claimant appeared and represented himself at the hearing.
The respondent had not lodged a response form and did not appear at the hearing.
The Claims
The claimant brought the following claims before the tribunal:-
1. A claim for pay in lieu of holidays accrued but not taken at the date of termination of the claimant’s contract of employment.
2. A claim of the respondent’s failure to give notice of termination or pay notice monies.
3. A claim in respect of unpaid wages.
The Issues
The issues to be determined by the tribunal were:-
4. The correct respondent to the claim. The tribunal determined that the claimant’s employer was Rainbow Garland Limited and the title of the proceedings was amended accordingly. Whilst the claimant had not named this company as a respondent, the 2 Directors of the company, namely Bryan West and Michelle Dougan had both been named. The tribunal was therefore satisfied that the company via its directors had been effectively notified of the claim. The tribunal therefore had no hesitation in joining the company Rainbow Garland Limited as a respondent to the claim in substitution for its Directors.
5. Whether the claimant had accrued holidays which were accrued but not taken at the date of termination of his contract and, if so, the amount of pay in lieu of such holidays due to the claimant.
6. Whether the respondent failed to provide the required period of notice to the claimant or to pay the claimant in lieu of notice and, if so, the amount of pay in lieu of notice due to the claimant.
7. Whether the respondent failed to make payment to the claimant in respect of wages earned and, if so, the amount of such unpaid wages.
Disposal of the claim in the absence of the respondent
8. The respondent did not appear at the hearing. The respondent had not presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing. The tribunal was satisfied that the Claim Form and Notice of Hearing were duly sent to the 2 Directors of the respondent at addresses at Upper Newtownards Road and Alfred Street, Belfast respectively and none of this correspondence was returned undelivered via the post. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Sources of Evidence
9. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.
Facts of the Case
Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-
10. The claimant started his employment as a waiter in the respondent’s restaurant business at Botanic Avenue , Belfast on or about 28 June 2012. The claimant never received a statement of main terms and conditions of employment.
11. Throughout his employment, the claimant worked full-time and his rate of pay was £6.08 per hour (gross). The claimant did receive pay slips.
12. The claimant worked a full week of 35 hours in January 2013 but did not receive any pay for this week.
13. Around 20 January 2013, the claimant and his colleagues attended for work at the restaurant to find that fittings were being removed from the premises. The claimant and his colleagues understood that the restaurant had ceased trading. They had received no communication from the respondent to this effect.
14. At the request of the staff, Michelle Dougan, a Director of the respondent, signed a letter to the staff dated 20 January 2013 confirming that the business had ceased trading and therefore that work for all employees had ceased with immediate effect.
15. The claimant did not receive any paid holidays during the course of his employment. The claimant worked a total of 882 hours during his employment.
Statement of Law
16. Under Regulation 13 of the Working Time Regulations (as amended), a worker is entitled to a total of 5.6 weeks paid leave (pro rata) in any leave year. By Regulation 14, where a worker’s employment is terminated during the course of his leave year and, on the termination date, the proportion of leave which he has taken is less that the proportion of the leave year which has expired, the employer must make a payment in lieu of leave accrued but not taken.
17. By article 118 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), the notice required to be given by an employer to terminate the contract of employment of an employee who has been employed for one month or more is not less than one week.
18. By Article 45 of the Order, an employer shall not make a deduction from wages of a worker employed by him unless the deductions is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction. A complete failure to pay wages on any occasion constitutes a deduction from wages.
Conclusions
Holiday pay
19. Since he had not received any paid holiday during the course of his employment, the claimant was entitled to 5.6 weeks paid holiday (pro rata) on termination of his employment on 20 January 2013. Over the course of his employment, the claimant worked a total of 882 hours. He worked a total of 29 weeks from 28 June 2012 to 20 January 2013. The claimant’s average working hours per week is therefore 882/29 = 30.4 hours per week.
20. The claimant’s entitlement to holiday pay is calculated as follows:-
5.6 weeks x 30.4 (average hours per week) x 29 weeks/52 = 95 hours
Holiday pay = 95 hours x £6.08 per hour (gross) = £577.60 (gross).
Notice
21. At the date of termination of his employment, the claimant had more than one months continuous employment with the respondent. The claimant was therefore entitled to 1 weeks notice of termination of his employment or 1 weeks pay in lieu of notice. Since the claimant did not receive notice or pay in lieu, the claimant is entitled to pay in lieu of notice as follows:-
29.4 average hours per week x £6.08 per hour (gross) x 1 week = £178.75 (gross).
Unpaid wages
23. The tribunal concluded that the claimant did not receive any wages for a total of 35 hours worked in January 2013 and the claimant is therefore entitled to the following payment:-
35 hours x £6.08 per hour (gross) = £ 212.80 (gross).
24. The total sum due to the claimant by the respondent is £969.15.
25. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 June 2013, Belfast.
Date decision recorded in register and issued to parties: