48 Ward v Markey t/a Kilbroney Bar (Holiday Pay) [2004] NIIT 1291_03 (7 September 2004)


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Industrial Tribunals Northern Ireland Decisions
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URL: http://www.bailii.org/nie/cases/NIIT/2004/48.html

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 1291/03

    APPLICANT: Robin Ward

    RESPONDENT: John Markey

    t/a Kilbroney Bar

    DECISION

    The unanimous decision of the tribunal is:-

    (a) That the title to the proceedings be amended to show the respondent as John Markey trading as Kilbroney Bar.
    (b) That the applicant is entitled to nine days holiday pay @ £70.00 per day making a total of £630.00 to be paid by the respondent to the applicant.

    Appearances:

    The applicant appeared in person.

    The respondent appeared in person.

    Summary Reasons

  1. The applicant's evidence was that when he was originally employed by the respondent's manager, Mr Baker, he had asked for a sum of £400.00 per week. Mr Baker had asked how many hours he had been working. He indicated that he had been working forty to fifty hours per week. Mr Baker said that he would only be working thirty to thirty five. Accordingly, the applicant reduced his demand to £350.00 which was agreed. This was £350.00 per week net. He described his working hours as being from 11.00am – 3.00 pm and from 5.00pm – 9.00 pm each day with a half day on Saturday. During the course of his employment he was docked pay on some occasions when he was not in work. He decided to leave and asked for his holiday pay. He was told that he was not getting any as he was not entitled. He suggested he would go to a solicitor and was asked if he had the number of a good one.

  2. According to the respondent, the applicant's working hours were forty to forty five hours per week. These hours were from 11.00 am – 3.00 pm or perhaps 2.30 pm and then from 6.00 pm or perhaps 7.00 pm until 8.00 pm or so on weekdays, 9.00 pm on Fridays and on Saturday perhaps 10.00 pm. It varied from day-to-day with last orders being at 9.00 pm. The week was a five day working week. The respondent indicated that from time to time the applicant failed to show up for work and eventually he started to take pay off him when this occurred. The respondent produced a schedule of the weeks during which the applicant had worked for him. This extended from week 32 to 52 in one financial year and weeks 1 and 2 in another. The schedule suggested that the applicant had been off four days in week 49 when he had worked seventeen hours, that he had been off three days in week 51 when he had worked thirty four and a half hours, that he had been off three days in week 1 when he had worked thirty three hours and three days in week two when he had worked twenty eight and a half hours. The schedule also showed one day's sick leave in week 36.

  3. The tribunal concluded that the evidence of the parties as to the relevant working hours did not stand up to analysis. According to the applicant he was supposed to work thirty to thirty five hours. Adding up the hours he was supposed to work in a normal week it amounted, on his evidence, to thirty six hours. When one considers the working hours described on the basis of a five day week by the respondent they do not amount to even forty hours on a full five day basis. Both parties did agree there had to be a certain amount of flexibility as to the amount of the working hours. In such cases it has to be expected that there will be weeks when an employee will work less than the number of hours officially contracted for and other weeks in which he will work more. The tribunal notes that it was unusual for the applicant to be recorded as working the same number of hours in any consecutive week. The tribunal notes that it is suggested in the schedule produced by the respondent that the applicant had taken significant numbers of days off. The tribunal does not accept the evidence as it appears from the schedule. The schedule suggests that in week 49 the applicant was off for four days yet he worked seventeen hours during the course of the week. In the tribunal's view this does not make sense. The tribunal does not accept the applicant worked seventeen hours on the one remaining day of a five day week. The same applies to week 51 when the applicant is suggested to have been off for three days while at the same time working for thirty four and a half hours. Likewise with week 1 and week 2 of the new financial year when the applicant is recorded as having been off for three days each although working thirty three hours and twenty eight and a half hours during the relevant weeks. The tribunal therefore approaches the evidence of the schedule with caution. In any event the tribunal notes that, from week 49 through to week 2, on any occasion when the applicant took time off, according to the schedule, he suffered a deduction of wages. Although the amounts deducted do not match the days that the applicant was supposed to be off the tribunal finds that on each occasion the deduction amounted to a recoupment by the respondent of all monies he considered related to the days when the applicant should, according to the respondent, have been in employment but was not. It is not therefore open to the respondent to suggest that any of the days which the applicant missed during the course of weeks 49 through to week 2 could be regarded as part of his holiday entitlement since the applicant was not paid for them. Looking at the remainder of the schedule namely from week 32 to 48 the tribunal notes that in all but four of those weeks the applicant is recorded as having worked in excess of thirty six hours. In all these cases the tribunal regards the time worked as being within the margin of flexibility to which the tribunal has already referred.

  4. In the remaining weeks, week 32, week 36, week 40 and week 48, there is little indication as to the length of time the applicant was actually off or the reason why. In one week he is recorded as having been off sick for one day. The applicant's evidence was to the effect that he was sick on that occasion and that he did take some other time off for ill-health. The tribunal accepts that the applicant was off sick as he said. The tribunal does not accept that it was part of the terms of his employment that he was to produce medical certificates even when he was off for one day, as suggested by the respondent or that in the absence of a sick certificate, the leave was unauthorised. That evidence is not corroborated in any way and such an arrangement would, in the tribunal's view, be most unusual. Accordingly, there was no reduction in the applicant's holiday entitlement due to unauthorised absence during those four weeks..

  5. The applicant was employed for twenty two weeks. The tribunal finds that he is entitled to nine days holiday pay at his daily rate of pay which was £70.00 net. Accordingly, the amount payable by the respondent to the applicant is £630.00.

    6. Chairman:

    Date and place of hearing: 7 September 2004, Belfast.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/48.html