THE INDUSTRIAL TRIBUNALS

CASE REF:	1609/05

CLAIMANT:			Brian Caldwell

RESPONDENTS:		1.  Melmount Foods
				2.  Department for Employment & Learning

DECISION ON A REVIEW
The decision of the tribunal is that the prior decision in this case be amended by substituting for the sum of £260.42 expressed to be payable by the first named respondent to the claimant the sum of £1,041.68.

Constitution of Tribunal:
Chairman:		Mr Davey

Appearances:
The claimant did not appear, nor was he represented.
The first named respondent did not appear, nor was he represented.
The second named respondent was represented by Ms K Dobbin of Redundancy Payments Branch, Department for Employment and Learning.

REASONS

 1.	The claimant, in seeking the review of the tribunal’s decision, submitted in his detailed letter that his original claim had been misunderstood by the tribunal.  In particular the tribunal had believed that he was seeking to recover a sum equivalent to three weeks holiday pay in respect of the holiday year 2005/06.  In fact, the claimant stated, he was seeking to recover that sum in respect of holiday year 2004/05.

 2.	According to the claimant’s letter he had taken no holidays referable to the 2004/05 holiday year as at the time of the termination of his contract nor had he received any payment in lieu.  This evidence was consistent with the claimant’s original claim for holiday pay submitted to the second named respondent (“the Department”).  Although one of the directors of the company had asserted to the Insolvency Service that there were no holidays outstanding to any member of staff there was no documentary evidence or wages record to contradict the claimant’s statement which the tribunal accepted.  Accordingly in addition to the £260.42 previously adjudged to be due to the claimant by the first named respondent a further three weeks wages at £260.42 per week (3 x £260.42 = £781.26) was due to him as of 30 June 2005, the end of the holiday year and his penultimate day of work.  The total sum due amounted to £1,041.68 which should be substituted for the sum previously adjudged to be due to the claimant by the first named respondent.

 3.	The tribunal has also further considered the provisions of Article 229 of the Employment Rights Order (Northern Ireland) 1996.  Paragraph 1(c) of that article covers the position of the Department in relation to payments following insolvency with particular regard to holiday pay.  In broad terms it provides that the Department is only required to make payments in respect of holidays actually accrued within 12 months of the date of the insolvency of the relevant employer.  In this case the first named respondent became insolvent on 26 January 2006.  Accordingly the Department’s liability would extend only to holidays actually accrued and not taken between 27 January 2005 (12 months prior to the insolvency) and the date when the claimant’s employment terminated.  Liability would not extend to holidays or holiday pay accruing prior to those dates.

4.	No question of recoupment arises.

 5.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:   25 April 2007, Belfast		

Date decision recorded in register and issued to parties: