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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> D' Ignoti v Darina McCormick [2010] NIIT 7293_09IT (07 May 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/7293_09IT.html Cite as: [2010] NIIT 7293_9IT, [2010] NIIT 7293_09IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7293/09
CLAIMANT: Elena D’Ignoti
RESPONDENT: Darina McCormick
DECISION ON A REVIEW HEARING
The decision of the Tribunal is that the
original decision in so far as it relates to
an award of holiday pay in the sum of £136.08 is varied by the substitution of
£51.57 for £136.08.
Constitution of Tribunal:
Chairman: Mrs A Wilson (sitting alone)
Appearances:
The respondent did not appear but was
represented by her husband, Mr
McCormick.
The claimant appeared in person and was unrepresented.
The claimant not having a fluency in the
English language was facilitated by an
interpreter, Mr Paul Curran.
Sources of evidence.
The Tribunal considered the notes taken
during the original hearing, the original
decision, the application for review, the response to the review application
and
the submissions of the parties.
The Issue.
Should the decision of the Tribunal
registered on 3rd February 2010 be
confirmed, varied or revoked following review under Rule 36 of The
Industrial
Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland)
2005 [the Rules of Procedure] on the grounds that that decision was wrongly
made as a result of an administrative error .
Background.
1. By undated letter received by the
Tribunal office within 14 days of the date
upon which the original decision was sent to the parties, the respondent
applied for a review of the Tribunal’s decision in so far as it related to one
aspect of the
calculation of holiday pay on the grounds that the decision in this regard was
made as a result of an administrative error.
2. In the original decision the Tribunal
at paragraph 21 recorded the following
finding:-
The tribunal award the claimant the further sum of £136.08 in
respect of 2.5
days leave earned and untaken. This is calculated on a pro rata basis based
upon an annual contractual entitlement of 28 days.
3. The application for review relates to
this specific finding and is grounded as
follows:-
‘The Tribunal awarded the claimant a
further £136.08 in respect of a further 2.5
days leave. This was calculated on a pro rata basis based upon an annual leave
contractual entitlement of 28 days.
Surely this calculation would only be
valid if the claimant had been working a 5
day week. As was confirmed by all parties and recorded under point 5 of
the
Findings of Relevant Fact:
“Shortly into the employment contract,
the claimant expressed dissatisfaction
with her working hours and an agreement was reached between the parties that
the claimant would work a reduced week”
It was
agreed at the time Miss D’ignoti reduced her working week, that the
holiday entitlement would be pro rata to the days worked. Based upon the
advice
I have been given leave should be awarded at 12.07% of total hours worked ie
37 days x 9.5 = 351.5 hours
351.5 hours/ 100* 12.07% = 42.3 hours
Based upon the above calculation Miss
D’Ignoti’s total leave entitlement would
be 42.3 hours. I have already paid Miss D’ignoti for 3.5 days (ie 33.25
hours).
This would mean that I owe payment for a further 9 hours. At £5.73 per
hour this
would be £51.57 and not £136.08 detailed in the findings.
4. The Tribunal having considered this
application in accordance with Rule 35
and decided not to refuse it, now review the original decision in accordance
with
Rule 36 of the Rules of Procedure.
5. The Tribunal considered the notes
recorded during the original hearing and in
particular the record of the respondent’s evidence to the effect that holiday
entitlement was to be calculated on a pro rata basis following the revised
agreement regarding part time work. This evidence was not challenged at the
original hearing by the claimant. As a consequence the Tribunal accepts that
there was an error in the calculation of holiday pay and for this reason varies
the
original decision in accordance with the methodology advanced by the
respondent in her application for review.
6. It is the respondent’s submission that
holiday pay should be calculated to
reflect 36 days worked. This is a departure from the terms of the
application for
review which is based on 37 days worked and is not accepted by the
Tribunal. In
its original decision [paragraph 18] the Tribunal found on an evaluation
of all the
evidence before it that the claimant worked 37 days and the decision is
confirmed in this regard.
7. For reasons given above, the decision
is varied in accordance with the
respondent’s methodology as set out in the application for review and the
element of the award of holiday pay in the sum of £136.08 is substituted by an
award of £51.57 under this heading.
Chairman:
Date Decision issued to parties:
