THE INDUSTRIAL TRIBUNALS 

CASE REF:	1768/03
3366/03

APPLICANT:	Robert Lewis	

RESPONDENT:	John Rafferty
			t/a City Construction Services	

DECISION

The unanimous decision of the tribunal is:-
(a)	That the applicant was not unfairly dismissed.
(b)	That the applicant is entitled to be paid four weeks holiday pay by the respondent.

Appearances:
The applicant appeared in person.
The respondent appeared in person.

Summary Reasons

1.	It was agreed between the parties that the title to the proceedings be amended to show the respondent as John Rafferty trading as City Construction Services.

2.	There was little dispute about the facts.  The applicant had worked for the respondent between 1999 and 2001 but had then left his employment for a period of approximately one year.  He recommenced employment with the respondent in the middle of May 2002 and his employment extended for just over one calendar year.  During the course of the summer of 2003 the applicant sought advice as regards holiday pay from the Labour Relations Agency.  On advice from them, he approached the respondent with regard to the payment of holiday pay.  The respondent said, in response to his enquiry, “If you keep this up I will have to let you go”.  Following this conversation the applicant left the respondent’s employment that day and did not return.

According to the respondent the applicant had approached him with regard to holiday pay about a week or two before the date he left.  The respondent said that he was going to look into it.  The applicant asked him again when he told him that he was still looking into it.  The respondent denied making any threat.  The respondent also stated that he had believed that persons working without set hours, like the applicant, whose work was on a measured basis, would normally have holiday pay assessed as they went along and deducted from their overall wages and kept until holiday times.  The applicant had, however, asked that no deductions should be made.  There was no question but that no holiday pay had been paid to the applicant.

3.	The tribunal finds that there was an initial mention of holiday pay a week or two before the applicant left.  The matter was also mentioned again on the day when the applicant left.  Even taking the applicant’s evidence at its height there was no actual dismissal.  The words used by the respondent, according to the applicant, did not amount to a dismissal; nor could they have been construed as such.  In any event the tribunal accepts the respondent’s evidence that he indicated that he was looking into the matter.  The applicant suggested that he was under threat for asserting his statutory right.  Even if this was so he was not directly dismissed.  The only question, therefore, was whether he had been constructively dismissed.  In the tribunal’s view there was no breach of contract.  The respondent had not refused to pay holiday pay; he had said he was looking into it.  Without a breach of contract there can be no constructive dismissal.

4.	There is no question but that the applicant was, at all relevant times, a worker within the meaning of the Working Time Regulations (Northern Ireland) 1998.  As such he was entitled to holiday pay.  He had been working for the applicant for one year and was accordingly entitled to four weeks holiday pay.  In situations like that of the applicant, where there are no normal working hours for the employee, the Employment Rights (Northern Ireland) Order 1996 provides that the amount of a week’s pay is the amount of the average weeks remuneration in the twelve weeks ending with the day the applicant left employment since that day was the last day of the working week.

5.	No evidence was available to the tribunal as to the amount of the applicant’s wages during the twelve weeks in question.  Accordingly, the tribunal will reconvene at a time to be determined in order to take evidence and to find the amount of the wages paid to the applicant during the course of those twelve weeks and thus establishing the average to be used in calculating the amount to be paid to the applicant for the four weeks holiday pay due to him.   

Chairman:

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

Date decision recorded in register and issued to parties: