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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McDowell v Pete's Pub Limited [2014] NIIT 1849_13IT (10 January 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1849_13IT.html
Cite as: [2014] NIIT 1849_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1849/13
CLAIMANT: Ryan McDowell
RESPONDENT: Pete’s Pub Limited
DECISION
The decision of the tribunal is as follows:-
1. The claimant’s claims in respect of holiday pay, notice pay and unpaid wages are hereby dismissed since they were lodged outside of the statutory time limit and the tribunal has not exercised its discretion to extend the time limit.
Constitution of Tribunal:
Chairman (sitting alone): Ms J Turkington
Appearances:
The claimant appeared and represented himself.
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 in respect of the respondent’s failure to pay notice monies.
3. A claim in respect of unpaid wages.
The Issues
The issues to be determined by the tribunal were:-
4. Whether the claimant’s claims were lodged within the respective time limits for the presentation of such claims. If not, whether the tribunal should exercise its discretion to extend the time limit for the presentation of each of the respective claims and therefore whether the tribunal had jurisdiction to hear and determine any of the claims.
5. If appropriate, the tribunal would then have to determine whether the respondent should be ordered to pay the sums sought by the claimant in respect of holiday, notice monies and unpaid wages.
The title of the respondent
6. The second named respondent, Peter Majury, and the third named respondent, Kelly Majury, are dismissed from the proceedings, as the correct employer of the claimant was the first named respondent, Pete’s Pub Ltd.
Disposal of the claim in the absence of the respondent
7. 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. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Sources of Evidence
8. 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:-
9. The claimant began working at the Slip Inn, Portaferry on 20 April 2012. The claimant worked as a Bar Tender on a “zero hours” contract. His average working hours were 35 hours per week and his rate of pay was £6.34 per hour.
10. On or about 2 January 2013, the claimant was getting ready for work when he received a phone call from the respondent to say that the pub business would not be opening that day. He was asked to come in at around 12 o’clock. At that time, the bar had been cleared and the respondent confirmed that the bar was closing and would not be opening again.
11. The claimant and his colleagues were told that they would get paid 2 days later. However, they did not receive their entitlements.
12. The claimant was paid fortnightly. The claimant’s holiday entitlement was 28 days per annum, based on 7 hour working days.
13. After the closure of the pub business, the claimant was in touch with the respondent by phone and text. The respondent confirmed that the claimant had 12 days untaken holiday at the end of 2012. The respondent also confirmed that the claimant was owed 63 hours wages for the final fortnight of his employment.
14. The claimant understands that the directors of the respondent company are bankrupt, although the respondent company itself is not formally insolvent. The claimant and his former colleagues have been in touch with the trustee in bankruptcy of the directors by phone seeking their entitlements. The trustee advised them to lodge their claims with the Redundancy Payments Branch. The claimant and his colleagues then submitted forms to Redundancy Payments Branch. After some time, their claims were rejected. In July 2013, the claimant and his former colleagues sought advice from the local CAB. They were advised to bring their claims before the tribunal.
15. The claimant’s claim form was lodged with the tribunal on 21 October 2013.
Statement of Law
Time limits
16. In respect of a claim for holiday pay under the Working Time Regulations, an employment tribunal shall not consider such a complaint unless it is presented—
(a) before the end of the period of three months beginning with the date on which it is alleged that the payment should have been made;
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
It is for the claimant to show “precisely why it was that he did not present his (claim)” on time – see Porter v Bandridge Ltd 1978 ICR 943, CA.
17. The claimant has brought a claim for pay in lieu of notice and for unpaid wages, both of which can be considered to be claims in respect of unauthorised deductions from wages. Under article 55 (2) of the Order, a tribunal shall not consider such a complaint unless is it presented before the end of the period of 3 months beginning with the date of the payment of the wages from which the deduction was made. Where the tribunal is satisfied that it was not reasonably practicable for the claim to be presented within this primary time limit, it may nevertheless consider the claim if it is presented within such further period as the tribunal considers reasonable.
Entitlement to Holiday Pay
18. Under Regulation 13 of the Working Time Regulations (as amended), a worker is entitled to a total of 4.8 weeks paid leave 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 than the proportion of the leave year which has expired, the employer must make a payment in lieu of leave accrued but not taken.
Entitlement to Notice
19. 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 is one week’s notice for each year of continuous employment between 2 years and 12 years.
Unlawful deduction from wages
20. By article 45 of the Order, an employer shall not make a deduction from wages of a worker employed by him save in certain defined circumstances. Where the total amount of wages paid to the worker on any occasion is less than the total amount of wages properly payable, the amount of the deficiency shall be treated as a deduction. A complete failure to pay wages due is an unlawful deduction from wages.
Conclusions
Holiday pay claim
21. The claimant should have received holiday pay in his final pay which was due to be paid in or around the first week of January 2013. Therefore, the primary 3 month time limit for lodging this claim with the tribunal expired in the first week of April 2013. The claimant provided limited explanation as to why this claim could not be lodged on time and the tribunal was mindful that the burden was firmly on the claimant to explain the delay. The tribunal’s discretion to extend time in this case is fairly constrained. Having considered all the relevant facts, the tribunal concluded that the claimant had not established that it was not reasonably practicable for him to have lodged this claim on time.
22. Furthermore, the claimant would have had to establish that he had lodged this claim within “such further period as the tribunal considers reasonable”. In this case, it was clear that the claimant and his colleagues had received advice from the CAB in July 2013 that they should bring their claims to the tribunal. However, it was not until 21 October 2013, some 3 months later that this claim was actually lodged with the tribunal. Accordingly, if it had been necessary for the tribunal to have considered this point, the tribunal would have concluded that this claim was not lodged within a reasonable time after the expiry of the 3 month time limit.
23. For these reasons, the tribunal has concluded that it does not have jurisdiction to consider the claimant’s claims for holiday pay and this claim is therefore dismissed.
Notice Pay Claim and Unpaid Wages Claim
24. As set out at para 16 above, these claims can be considered to be claims for unauthorised deductions from wages. As such, these claims must be brought within 3 months of the date when the relevant payment of wages should have been made. The tribunal can only extend time where it is satisfied, firstly, that it was not reasonably practicable for the claim to be presented within this primary time limit and, secondly, that the claim was presented within such further period as the tribunal considers reasonable.
25. In this case, the claimant’s final pay was due to have been paid to his in the first week of January 2013. The claimant’s claim form was not lodged until 21 October 2013. The time limit in respect of these claims and the tribunal’s discretion to extend time for these claims is essentially the same as that which is applicable to the claim for holiday pay. Accordingly, in considering the question of time limits for these claims, the tribunal considered the same factors as referred to at paras 20 and 21 above. Having taken account of these matters, the tribunal reached the same conclusion, namely that the claimant had not satisfied the tribunal that it was not reasonably practicable for his to have lodged the claim on time. Furthermore, should it have become necessary for the tribunal to consider this point, the tribunal would have determined that the claim form was not lodged within a reasonable time thereafter.
26. Therefore, the tribunal has concluded that it does not have jurisdiction to consider the claimant’s claims for notice pay or unpaid wages and these claims are therefore dismissed.
Chairman:
Date and place of hearing: 26 November 2013, Belfast.
Date decision recorded in register and issued to parties: