THE INDUSTRIAL TRIBUNALS 

CASE REF:	1798/04

CLAIMANT:			Angela Christine Herman		

	
RESPONDENTS:		1.	Khosrow Hassani
2.	Vincent’s Café/Café Vincent’s
3.	Hassan Kudlum		

DECISION

The tribunal directs that the name of the third respondent should be amended to that of Hassan Kudlum trading as Vincent’s Café or Café Vincent’s.

The tribunal finds that the second respondent is merely the place of employment and is not in itself a legal entity and is dismissed from the proceedings.

The tribunal also dismisses the first respondent from the proceedings.  Khosrow Hassani was found by the tribunal to be an employee of the third respondent.

The tribunal found that the claims for unpaid wages arising from unpaid holiday leave entitlement and from payments below the national minimum wage are well-founded.  The tribunal therefore directs that the third respondent pay to the claimant the sum of £1,033.88.

 Constitution of Tribunal:

Chairman:		Mr T G Browne

Appearances:

The claimant was represented by Mr D. Carson.

The respondents did not attend and were not represented. 

THE ISSUES

The tribunal had to determine whether the claimant was owed holiday pay arising from her contract of employment with the respondents.

The tribunal also had to determine whether the claimant had been paid less than the national minimum wage.

In reaching its decision the tribunal received the evidence of the claimant and submissions by Mr Carson.  The tribunal also studied the relevant legislation and the originating application, as well as the notice of appearance of the third respondent.  It is worthy of note at this stage that the third respondent in his notice of appearance indicated that he accepted, and did not intend to resist, the claims;  nor did he contradict the calculations of amounts which were supplied to him.

The tribunal found the following facts:

The claimant, whose date of birth is 10.06.63, commenced employment as a part-time waitress at Café Vincent’s in Botanic Avenue, Belfast, on 5 December 2002.

Her working hours were sixteen hours per week, at a rate of £4.10 per hour;  those hours and pay continued until she left her employment there in May 2004.

The third respondent was at all material times a partner in the business which owned and ran Café Vincent’s.

The tribunal found that by virtue of the National Minimum Wage Regulations 1998 the prevailing rate of the national minimum wage as at December 2002 was £4.10 per hour, which rose in October 2003 to £4.50 per hour;  that rate was still applicable in May 2004.

The tribunal found from the evidence of the claimant that in addition to her pay, the respondent paid to her family tax credit at the correct rate of £57.89 per week, which then was repaid to the third respondent by the appropriate Social Services Department.

The tribunal found from the evidence of the claimant that she had taken only ten days’ holiday during her employment by the third respondent.  The tribunal accepted her evidence that she had been told by the first respondent that she was not entitled to receive any paid holidays because she was a part-time employee.  It is unclear whether he told her this deliberately to mislead her, or whether he did so in ignorance of any such entitlement.

The tribunal found that the claimant received no payment for the 10 days’ holiday in July 2003, and she did not receive any family tax credit payments from the third respondent for those ten days.

THE DECISION

The tribunal concluded that by virtue of Section 1 of the National Minimum Wage Act 1998 the claimant qualified for the national minimum wage throughout her employment by the third respondent.  

Her rate of pay at £4.10 per hour was therefore held by the tribunal to be £0.10 per hour below the prevailing rate from 5 December 2002 until 1 October 2003 and £0.40 per hour below the prevailing rate until May 2004.

The tribunal consequently found from Section 17 of the 1998 Act that she is entitled to claim the difference between her actual pay and the appropriate rates of the national minimum wage.

The tribunal concluded from Regulations 13-16 of the Working Time Regulations (Northern Ireland) 1998 that the claimant was entitled to paid annual leave.  The tribunal further concluded that the third respondent breached his statutory duty thereunder in failing to pay the claimant for the ten days’ leave which she took in July 2003.

The tribunal further held that the claimant is entitled to claim for payment for the annual leave to which she was entitled but did not take.

The tribunal has adopted the unchallenged calculations annexed to this decision as supplied by the claimant.

The tribunal therefore orders that the third respondent pay to the claimant a total amount of £1,033.88.

This relates to the balance between the hourly amount paid to the claimant between December 2002 and October 2003, which totals £84.90.  The balance between those amounts between October 2003 and May 2004 at the higher prevailing rate amounts to £198.40.

The amounts owed for unpaid holiday leave and payment in lieu of holiday entitlement amounts to £268.80 for the first year and £118.80 for the second, being a total of £387.60 plus working family tax credit totalling £327.08.

The tribunal also accepted that there was a day’s unpaid pay of £36.00.

The claimant’s representative made an application for costs because the respondents had not appeared, at the tribunal and were not represented and consequently that they somehow had snubbed the tribunal and had behaved unreasonably.

The tribunal however considers that such an order is not appropriate.  Under Rule 14 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004, which apply to this case, the criteria for such an order are that a party or his representative has in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably.

These are civil proceedings, in which a party need not attend, and as such non-attendance would seem to be placed outside the test for “otherwise unreasonably”.

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

Chairman:

Date and place of hearing:	30 September 2005, Belfast.	

Date decision recorded in register and issued to parties: