THE INDUSTRIAL TRIBUNALS
CASE REF: 02974/01
APPLICANT: Phillip Deane
RESPONDENT: Greg McCartan, trading as Kernan Timbers Products Limited In Administrative Receivership
DECISION
The unanimous decision of the tribunal is that the tribunal finds part of the applicant's complaint well-founded and Orders the respondent to pay to the applicant the following:-
One week's pay in lieu of notice £240.00
Ten days' holiday pay £480.00
Total £720.00
Appearances:
The applicant was represented Mr G Donaghy, Barrister-at-Law, instructed by Kenneth McKee, Solicitors.
There was no appearance by or on behalf of the respondent.
This is a reserved decision in summary form.
THE ISSUE
- In his Originating Application to the tribunal the applicant complained of 'breach of contract, failure to pay holiday pay, wages in lieu of notice, lying week'. There was no appearance to this Originating Application on the part of the respondent therein named. An issue emerged as to the correct identity of the respondent. The tribunal accordingly had to determine the correct identity of the respondent and whether the applicant's complaints were substantiated.
THE TRIBUNAL'S DECISION
- In reaching its decision the tribunal has had regard to all matters, both oral and written, raised in evidence, and to its findings of fact in regard to these. In this regard the tribunal found the facts set out below.
- The applicant was employed by Kernan Timber Products Limited, a company of limited liability, and that is the proper respondent. The complaint against the respondent named in the applicant's Originating Application is dismissed, without further order.
- The applicant was engaged by the respondent as a "PVC operative" and was employed continuously from September 2000 until the applicant was summarily dismissed on 12 June 2001. There was no evidence that the employment was subject to any written statement of main terms and conditions of employment. A number of weeks after that dismissal, the respondent company was placed in Administrative Receivership. There was no evidence that the company had gone into liquidation at the date of the last hearing.
- Upon examination of the applicant's wages records in this employment and specifically the wages slips, in accordance with Article 17(3) of the Employment Rights (Northern Ireland) Order 1996 the tribunal determined that the applicant's applicable nett weekly wage was £240.00. That figure has been used as the basis for the calculations set out below.
- The tribunal finds that the applicant was summarily dismissed by the respondent. That dismissal was without notice or pay in lieu of notice. In accordance with Article 118 of the Employment Rights (Northern Ireland) Order 1996, the applicant would be entitled to one week's pay in lieu of notice, the sum of £240.00.
- The applicant claimed that the respondent had failed to pay him holiday pay properly due. In the absence of any written evidence of any greater contractual entitlements in this regard, the tribunal notes the provisions of the Working Time Regulations (Northern Ireland) 1998 (as amended). Specifically, Regulation 13 of those Regulations entitles workers (which expression includes employees working, as did this applicant, under a contract of employment) to four weeks' paid annual leave. Upon the facts, and taking into account these provisions, the tribunal determines that ten days' holiday leave was outstanding but unpaid and due to the applicant at the date of termination of employment. Accordingly, the sum due to the applicant in respect of this is £480.00. The applicant also claimed that there was due to him pay for overtime worked by him that was unpaid and also unpaid wages in respect of an unpaid lying week. Looking at the evidence placed before it, the tribunal was unable to determine that anything was due to the applicant in respect of these claims and the tribunal makes no finding in respect of that part of the applicant's claim. There was no other finding on the tribunal's part in respect of any sum or sums due by the respondent to the applicant apart from the foregoing sums mentioned.
- Accordingly the tribunal finds part of the applicant's complaint well-founded and Orders the respondent to pay to the applicant the following:-
One week's pay in lieu of notice £240.00
Ten days' holiday pay £480.00
Total £720.00
This is a relevant decision for the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 19 March 2002, Belfast, 3 October 2002, Belfast
Date decision recorded in register and issued to parties:
