THE INDUSTRIAL TRIBUNALS

CASE REF:  00263/09

CLAIMANT:			Fabian Dunlop

RESPONDENT:		Mark Donley T/A Top Dog (Donley Engineering)

DECISION
The decision of the tribunal is that the claimant is entitled to £546 in respect of holiday pay, £210 for a lying week, and £162.40 in respect of sick pay, totalling £918.40.

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr S A Crothers

Appearances:
The claimant was present and represented himself.
The respondent did not enter a response and was not present at the hearing.

THE CLAIM

 1.	The claimant’s claim is crystallised in correspondence forwarded to the respondent dated 22 October 2008 as follows:-

		“Dear Mark Donley
I am writing to tell you that I want to raise a grievance about the following.  On my termination of employment on the 26th September 2008 my terms of employment where not adhered to.  The following points are my reason for this grievance.

1)	Under the terms of employment I was entitled to one weeks notice at full pay.

2)	The holiday benefits due to me under those terms were 24 days a year.  I was employed for 9 months of that year but only took 5 days annual leave, under my employment terms that left me 13 days annual leave still due.  By working the 9 months on the basis of 24 days per 12 months this would leave me with an entitlement of 18 days (75%) having only taking 5 days this leaves me with 13 days annual leave still due.

3)	At the beginning of my employment I did not receive the 1st week’s wages as it was retained in hand by the company.

4)	I failed to receive any wages on the 1st of August as my pay cheque was lost by another employee.

5)	I received a payslip on the 12th September and the next one I received on the 26th September.  The payslip of the 19th September was omitted by mistake or otherwise.  I did not receive any pay entitlement for that week.

	The above are the reasons for my grievance complaint.

	I am entitled to a hearing to discuss this matter.  I am also entitled to be accompanied by a work colleague or my trade union representative.

		Please reply within 7 days (or not more than 28days of the date of this letter).

Yours sincerely

Fabian Dunlop”.

On the claimant’s evidence, the title of respondent was amended to that shown above.

THE ISSUES 

 2.	The issues before the tribunal were as follows:-

(i)	Is the claimant entitled to a payment in respect of holiday pay?

(ii)	Is the claimant entitled to notice pay?

(iii)	Is the claimant entitled to a payment for a lying week?

(iv)	Is the claimant entitled to an amount for sick pay?

SOURCES OF EVIDENCE

 3.	The tribunal heard evidence from the claimant and considered documentation referred to in the course of his evidence.

FINDINGS OF FACT

 4.	Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

The claimant commenced employment with the respondent on 4 February 2008.  He was employed as a production operator.  He was off sick from sometime towards the end of May 2008 and remained off work until his employment was terminated on 26 September 2008.  Following a meeting with the respondent on 19 September 2008 the claimant was told that he was being paid off from the following Friday, 26 September 2008.  He did not receive two weeks’ sick pay owed to him on 1 August 2008 and later in September 2008.  The tribunal accepts his analysis regarding holiday pay based on weekly net average pay of £210 over two weeks with an additional amount of £126 net for an additional three days.

THE LAW

 5.	The tribunal considered the relevant provisions in the Employment Rights (Northern Ireland) Order 1996 relating to unauthorised deduction from wages together with the relevant provisions of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 in relation to breach of contract.

CONCLUSIONS

 6.	Having considered the evidence and the facts as found the tribunal concludes as follows:-

(i)	The claimant by virtue of his service is entitled to one week’s pay in respect of a lying week = £210.

(ii)	The claimant was however given one week’s notice of termination of his employment on 19 September 2008 and is not entitled to any further payment in respect of same.

(iii)	I further order the respondent to pay to the claimant the sum of £162.40 sick pay due to him, together with holiday pay of £546 = £708.40.

(iv)	The total amount to be paid to claimant is therefore £918.40.

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

Chairman:

Date and place of hearing:	29 April 2009, Belfast.

Date decision recorded in register and issued to parties: