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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKeever v Ellis [2004] NIIT 2050_04 (16 December 2004) URL: http://www.bailii.org/nie/cases/NIIT/2004/2050_04.html Cite as: [2004] NIIT 2050_04, [2004] NIIT 2050_4

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2050/04

APPLICANT: Paula Mary McKeever

RESPONDENT: Don Ellis

DECISION

The unanimous decision of the tribunal is that the applicant's claim for outstanding holiday pay is dismissed, without further order.

Appearances:

The applicant appeared and represented herself.

The respondent did not appear and was not represented.

This is a decision in summary form.

THE ISSUE

1. The applicant's complaint to the tribunal was for "outstanding holiday pay". Whilst the respondent did file a Notice of Appearance to this complaint, this was not received until 10 December 2004 and was therefore out of time. A letter dated 10 December 2004 was dispatched by the Office of the Industrial Tribunals and Fair Employment Tribunal to the respondent requesting that the respondent indicate whether or not he wished to apply for time to be extended for the presentation of a Notice of Appearance. No reply to that was received by the date of the tribunal. The tribunal therefore disregarded the content of the respondent's Notice of Appearance. Accordingly, the tribunal had to determine the applicant's complaint.

THE TRIBUNAL'S FINDINGS

In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-

2. It must be said, at the outset, that the tribunal found the applicant's oral testimony to be vague and unsatisfactory. The tribunal had considerable difficulty in determining the essential facts from the applicant's evidence, notwithstanding the fact that the tribunal was at some pains to afford to the applicant the fullest possible opportunity to present any factual information before the tribunal. The applicant was employed by the respondent who traded as "Muldoon's Bar" in the capacity of a barmaid. She commenced in that employment on 9 July 2002 and her employment came to an end on 2 April 2004. There was no written contract of employment at any stage throughout this employment.

The applicant worked Monday-Saturday of each week (six days) and her customary hours of work were from 10.00 am-3.00 pm on weekdays and 10.00 am-6.00 pm on Saturday.

There was no express oral contract terms in relation to paid annual leave. The applicant was unable to assist the tribunal in regard to any leave year for computation of pay. There was no evidence available to the tribunal on carrying over of any holiday leave from one year to the next.

The applicant's evidence in respect of days leave taken in the year 2003 was vague and unsatisfactory as far as the tribunal was concerned and did not permit the tribunal to reach any determination specifically in regard to leave taken in the year 2003. As far as the tribunal could ascertain, the applicant had received six days paid annual leave in the year commencing 1 January 2004. Her last date of employment was 2 April 2004 and by that time she had worked three months and two days of the calendar year. It appeared by the end of her employment, for the year 2004, she had taken precisely her entitlement to paid annual leave when one took account of the relevant statutory provisions in respect of annual leave with pay (referred to below), there being no evidence of contractual leave provisions of which the tribunal could take any account in addition to the foregoing.

In regard to the position in respect of the year 2003, the tribunal was unable to make any determination in view of the state of the evidence that was before it.

THE TRIBUNAL'S DECISION

3. The applicant had complained of "outstanding holiday pay". Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall not make a deduction of wages of a worker employed by him unless the deduction is required by virtue of a statutory provision or a relevant provision of the worker's contract or the worker has signified in writing his agreement or consent to the making of the deduction. In regard to holiday pay, the Working Time Regulations provide a statutory right to paid annual leave or pay in lieu thereof.

However, on the evidence before it, the tribunal is unable to determine that the applicant would be entitled to any unpaid wages from the respondent, whether for untaken leave or otherwise. Accordingly, the applicant's complaint is dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: Thursday 16 December 2004, Belfast

Date decision recorded in register and issued to parties: