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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Jenkins v Exus Energy Ltd [2007] NIIT 1094_05 (18 April 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/1094_05.html Cite as: [2007] NIIT 1094_05, [2007] NIIT 1094_5

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1094/05

CLAIMANT: Debra Jenkins

RESPONDENT: Exus Energy Ltd

DECISION

The decision of the tribunal is that the claimant's respective claims for unpaid wages and for holiday pay in respect of contractual annual leave and also pay in lieu of untaken holidays for additional time worked, and for pay in lieu of notice, are well-founded and the tribunal Orders the respondent to pay to the claimant the total sum of £11,973.55.

Constitution of Tribunal:

Chairman (sitting alone): Mr J V Leonard

Appearances:

The claimant appeared in person and represented herself.

The respondent did not appear and was not represented.

REASONS

1. The claimant's claim was for unpaid wages, for holiday pay in respect of contractual annual leave and also pay in lieu of untaken holidays for additional time worked, and for pay in lieu of notice (the claimant also had mentioned guarantee pay and redundancy pay in her claim form but at hearing clarified that she was not pursuing these claims). There was no response by the respondent to the claim within the statutory time provided.
2. The tribunal heard oral evidence from the claimant and from Mr Fergus Begley (who was taking proceedings against the same respondent and whose case was heard directly prior to the claimant's hearing) and the claimant also submitted documentation in evidence.
3. Accordingly, the tribunal was required to determine the claimant's complaints in the matter and, if satisfactorily made out, to determine the matter of any award of compensation in respect of such complaints.

THE TRIBUNAL'S FINDINGS

4. On foot of the evidence adduced before it, the tribunal made the following findings of fact, material to the issues to be determined, on the balance of probabilities:-

(a) The respondent company was incorporated in January 1995 under the name 'B9 Energy Biomass Limited'. On 10 September 2003 the respondent changed its name to 'Exus Energy Limited'.

(b) The claimant was Managing Director and Chief Executive Officer of the respondent. The claimant was also a shareholder in the respondent. The claimant's employment was subject to written contract terms, which terms were seen and inspected by the tribunal. These written terms provided that the claimant's period of continuous service commenced on 1 May 2001. At the material time, the salary of £39,996.00 per annum, gross, was payable monthly under the contract terms. The normal days and hours of work were Monday to Friday of each week, with a nominal working day consisting of 7.5 hours (excluding lunch of 30 minutes). The contractual holidays were 25 working days holidays in each leave year (excluding public holidays), and the leave year ran from 1 January in each year. The written terms provided that a maximum of five days leave could be carried forward into the following leave year. The contract terms also provided that the notice period to be provided by the respondent to the claimant, for continuous employment of up to one year, was one month's notice; for more than one year it was two months' notice. The claimant accepted these written terms. From further oral evidence heard by the tribunal from both the claimant and also from Mr Begley, which evidence the tribunal fully accepted, the tribunal concluded that these written contract terms were subject to "custom and practice" consensual variation.

(c) One particular such agreed variation to the written terms provided that the claimant was enabled to carry forward more than five working days into the following leave year, by agreement (notwithstanding the written term to the contrary). Another agreed term provided that during extremely busy times at work the claimant could work additional hours beyond her contractual hours which hours would be, as it was called, 'banked'. The customary agreed arrangement was that these additional 'banked' hours would result in either further time off in lieu or, alternatively, additional remuneration, if the former were not to be possible. From the evidence, upon the termination of other contracts relating to other employees, those other employees had indeed been fully paid for the additional hours which had been worked and 'banked', on the basis of either hourly or daily rates of remuneration. The tribunal had no reason to think that the contractual situation was any different in respect of the claimant.

(d) In 2005 the respondent encountered significant cash flow difficulties. Endeavours were made by the claimant, together with other members of the respondent's management, to raise additional finance from investors, including private subscriptions and institutional and Venture Capital investments. However a critical point was passed by which time further investments did not materialise. As a result, the decision was taken by management, initially, to lay off employees with effect from 1 June 2005. Notwithstanding that lay-off, the claimant in her capacity as Managing Director and Chief Executive Officer continued to work on behalf of the respondent from 1 June 2005 until 16 June 2005. On or about 15 June 2005 the decision was taken by management to terminate the contracts of all members of the respondent's workforce, with effect from 16 June 2005. Included amongst these persons was the claimant. Accordingly, the claimant was dismissed by the respondent on 16 June 2005.

(e) At the date of dismissal, being 16 June 2005, the claimant's contract provided for a wages figure of £153.83 gross pay per day; £108 net pay per day.

(f) The claimant was not paid by the respondent her monthly salary in respect of the month of April 2005. The claimant was however paid by the respondent her monthly salary in respect of the month of May 2005. However, she received no remuneration from the respondent thereafter.

(g) At the date of termination of this employment the claimant had carried over by agreement from the previous leave year 18 holiday leave days. That, together with accrued leave for the then current leave year, 11.4 days, indicated that the claimant had unpaid holiday leave as at the date of termination of employment amounting to 29.4 days in total.

(h) The claimant had worked additional hours in pursuance of the customary agreement and these were 'banked'. On the strength of this custom and practice, the claimant was entitled at the date of termination to an additional 32.9 days' leave, or to pay in lieu thereof.

(i) At the date of termination, the contract terms provided that the claimant was entitled to two months' pay in lieu of notice as she had worked for more than one year.

(j) The claimant had made a payment claim to the Department for Employment & Learning ("DEL") and had received the following:-

(i) Salary (net)

(including £92.00 guaranteed payment) - £1,477.23

(ii) Unpaid holiday leave (net) - £ 508.58

(iii) Pay in lieu of notice - £1,120.20

(iv) A sum equivalent to statutory redundancy pay in addition.

(k) Apart from the foregoing payments received from DEL, the claimant had received no further remuneration upon termination of her employment from the respondent. The respondent entered into a company voluntary arrangement, so the tribunal understands, in the early part of 2006 and had been treated as being insolvent from that point by DEL.

(l) The tribunal did not need to determine any further facts for the purposes of its determination in the case.

THE APPLICABLE LAW

5. Article 45 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides that any deficiency in wages due is to be treated as a deduction made by the employer. Under Article 55 of the 1996 Order a tribunal may determine a wages deduction complaint to be well-founded and, on foot of Article 56 of the 1996 Order, the tribunal may order a respondent to pay to a claimant the amount of any deduction made in contravention of Article 45. Chapter III of the 1996 Order provides for statutory entitlement to payment for lay-off or short-time, but Article 186 states that an employee is not entitled to a redundancy payment by reason of being laid-off if he is dismissed by his employer. That latter provision does not prejudice any right of the employee to a redundancy payment in respect of the dismissal. The Tribunal's jurisdiction for breach of contract derives from the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 ("the 1994 Order"). Article 3 of the 1994 Order allows proceedings to be brought before an Industrial Tribunal by an employee for damages or any other sum (other than in relation to personal injuries) if, inter alia, the claim arises or is outstanding on the termination of the employee's employment

THE TRIBUNAL'S DETERMINATION

6. The tribunal fully accepts the evidence, both documentary and oral, which has been placed before it by and on behalf of the claimant, and has drawn conclusions of fact from this. In this matter, due to rather unfortunate financial circumstances, the respondent dismissed the claimant; that was stated by the respondent to be on grounds of redundancy but the tribunal is not required in these proceedings to determine the reason for the dismissal; the claimant has brought other (unfair dismissal) proceedings in respect of her dismissal. Apart from certain monies which were paid to the claimant from the National Insurance Fund by DEL, the claimant was in addition owed wages by the respondent upon the termination of this employment.
7. In respect of the various heads of claim pursued by the claimant, on foot of the statutory provisions mentioned above the tribunal finds the claimant's claims to be well-founded. The tribunal therefore Orders the respondent company to pay to the claimant the amounts that are set out below.
8. UNPAID WAGES

The claimant's claim was that she had been not paid wages for the month of April 2005, and for part of June 2005. In regard to April 2005 the net wages unpaid amounted to £2,345.46. In regard to June 2005, the claimant did perform work on behalf of the respondent in performance of her contractual duties, notwithstanding the lay-off of other staff, from 1 June 2005 until the date of termination, 16 June 2005, a period of 12 days. The claimant claimed entitlement to payment for these 12 working days at £108.25 net per day, being the sum of £1,299.00, less the sum of £92.00 that she had received from DEL in respect of that period of 12 days. The claimant's net claim was thus for £1,207.00 for the month of June 2005. The claimant had received from DEL the sum of £1,477.23 (£1,385.23 plus £92.00 guaranteed payment). The tribunal finds this particular claim well-founded and the net sum of £2,167.23 is payable to the claimant.

9. PAY IN LIEU OF CONTRACTUAL HOLIDAY LEAVE AND UNPAID LEAVE (TIME IN LIEU OF ADDITIONAL HOURS WORKED)

At the date of termination, the claimant had accrued 29.4 days' holiday leave at £108.25 net per day, being the sum of £3,182.55. At the date of termination, the claimant had accrued additional working time ("banked" hours) equivalent to 32.9 days in respect of which she would have been entitled to either time off or to pay in lieu thereof. 32.9 days at £108.25 net is the sum of £3,561.43. The total for this is £6,743.98. Deducting from that the sum of £508.58 received by the claimant from DEL, the net amount due to the claimant is £6,235.40.

10. PAY IN LIEU OF NOTICE

Under contract, the claimant was entitled to two months' pay in lieu of notice. This is the equivalent of £4,690.92 net pay. Deducting from that the sum of £1,120.00 received by the claimant from DEL, the net amount due to the claimant is £3,570.92.

11. The total in respect of the foregoing sums is the sum of £11,973.55. The tribunal therefore Orders the respondent to pay to the claimant the total sum of £11,973.55.
12. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 18 April 2007, Belfast

Date decision recorded in register and issued to parties: