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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Phair v Baxter [2007] NIIT 1088_06 (15 January 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/1088_06.html Cite as: [2007] NIIT 1088_06, [2007] NIIT 1088_6 |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1088/06
CLAIMANT: Sheila Ellen Matilda Phair
RESPONDENT: Roddy Baxter
DECISION
The unanimous decision of the tribunal is that the Tribunal Orders the respondent to pay to
the claimant the sum of £355.21.
Constitution of Tribunal:
Chairman: Mr J. V. Leonard
Panel Members: Mr F. Dodds
Mr J. Boyd
Appearances:
The claimant appeared and represented herself.
There was no appearance by or on behalf of the respondent (a default judgement having issued in the case)
Reasons:
In this matter the claimant lodged with the Office of the Tribunals a claim form dated 18 August 2006, received by the Office of Tribunals on 22 August 2006, in which the claimant made a claim for unpaid holiday pay.
By letter dated 8 December 2006 the Office of the Tribunals wrote to the respondent informing the respondent that, if a response to the claim was not received by 6 October 2006 and no extension of time had been agreed by a Chairman, the respondent would not be entitled to resist the claim. No response was thereafter received from the respondent.
As no response had been received within the statutory period provided, a Chairman of Tribunals considered the matter and on 23 October 2006 a default judgement issued under rule 8 of the Industrial Tribunals Rules of Procedure (2005) contained in the first Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
By letter dated 23 October 2006 sent by Office of the Tribunals to the respondent, the respondent was informed of the issue of the default judgement and a copy of the default judgment was enclosed. The said letter dated 23 October 2006 sent by Office of the Tribunals to the respondent afforded the opportunity to the respondent to apply for a review of the default judgement within 14 days of the date of the said letter. However, no review application was received.
Accordingly, the matter has now been listed for a hearing on the issue of remedy before this tribunal.
The tribunal heard oral evidence from the claimant and examined the claimant's claim form. A default judgement having issued in the case, the tribunal's task was to determine the appropriate remedy in the light of the claimant's claim, as determined on foot of the default judgement.
THE TRIBUNAL'S FINDINGS OF FACT
On foot of the evidence adduced before it tribunal found the following facts:-
(a) The claimant was employed by a fast-food and restaurant business which business was taken over by the respondent. The business, in its entirety, was transferred to the respondent in or around Christmas time of 2005. The claimant's contract of employment was transferred with that business transfer.
(b) Although no written terms and conditions of employment had ever been provided to the claimant throughout the course of the claimant's nine years of continuous employment in this business, the custom and practise agreed orally was that each employee would receive 4 weeks paid annual leave, the leave year commencing at the start of January in each year. That leave entitlement was inclusive of any bank and public holidays which such days were often worked by the employees of the business on account of the nature of the trade.
(c) The claimant normally worked from Monday through to Friday for a total of 32 hours in each week. The claimant took no leave days whatsoever from 1 January 2006 up until 13 July 2006 on which date the claimant voluntarily left this employment.
The claimant's net weekly pay for each day worked was £32.89.
At the time of the claimant ceasing to be employed, 13 July 2006, the tribunal assessed the number of days' leave in the leave year commencing 1 January 2006 to which the claimant would have been entitled as being 10.8 days. In respect of that leave entitlement the claimant had received no remuneration from the respondent upon the termination of this employment.
The tribunal did not need to determine any further findings of fact in this case.
THE APPLICABLE LAW
8. The Working Time Regulations (Northern Ireland) 1998 (as amended) (“the Working Time Regulations”) provide at regulation 13 that any worker is entitled to a period of annual leave with pay in each leave year equivalent to four weeks. Regulation 14 applies where (a) a worker's employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect the proportion the worker has taken of the leave to which he is entitled in the leave year under regulation 13 differs from the proportion of the leave year which has expired. Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave, apportioned as appropriate.
Part VI of the Employment Rights (Northern Ireland) Order 1996 (“ the 1996 Order”) provides for protection of wages and Article 45 of the 1996 Order provides that an employer shall not make a deduction from wages of a worker employed by him unless (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. Non-payment of wages constitutes a deduction for the purposes of Article 45. Article 55 of the 1996 Order provides that a worker may present a complaint to an industrial tribunal and where a tribunal finds a complaint under Article 55 well-founded, it shall make a declaration to that effect and shall order the employer, in this type of case, to pay to the worker the amount of any deduction made in contravention of Article 45 of the 1996 Order.
THE TRIBUNAL'S DETERMINATION ON REMEDY.
9. In this case, applying the relevant law to the facts, the tribunal determines that the claimant is entitled to the equivalent of 10.8 days' paid annual leave under the Working Time Regulations. That sum was not paid by the respondent to the claimant upon termination of employment and that constitutes an unlawful deduction from wages on foot of Article 45 of the 1996 Order.
10. As, on foot of the default judgement, a Chairman of Tribunals has already found the claimant's claim to be well-founded and is therefore to be deemed to have made a declaration to that effect for the purposes of Article 55 of the 1996 Order, this tribunal determines the appropriate remedy in this case. The Tribunal Orders the respondent to pay to the claimant the sum of £355.21.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 29 November 2006, Londonderry.
Date decision recorded in register and issued to parties:
