THE INDUSTRIAL TRIBUNALS

CASE REF:	1119/10

CLAIMANT:			Michael Vincler

RESPONDENT:		Red Cent (Nutts Corner) Limited 

DECISION 
The decision of the tribunal is that the proper respondent to the claim is Red Cent (Nutts Corner) Limited. The claimant’s claims in respect of unpaid holiday pay and pay in lieu of notice are well-founded and the tribunal orders the respondent to pay to the claimant the total sum of £2,648.80 in compensation.

Constitution of Tribunal:
Chairman (sitting alone):		Mr J V Leonard

Appearances:
The claimant appeared and represented himself.

The respondent did not appear and was not represented.

The Claim and the Issue

1.	The claimant made various claims against the respondent identified in his claim form as “Red Cent Car Parking”.  At the outset of the matter, the Chairman clarified with the claimant the correct identity of the respondent and the claimant produced some evidence in that regard.  The first issue to be addressed by the tribunal, therefore, was the proper identity of the respondent.  Further to that, in his claim the claimant had claimed breach of contract, notice pay, holiday pay and other unpaid amounts, which said claim was accepted as part of the tribunal’s pre-acceptance procedure.  However, that part of the claimant’s claim in respect of unauthorised deduction from wages was rejected for the reason that the claimant had not indicated that he had raised the subject matter of that part of the complaint in writing with the respondent and had awaited the statutory period of twenty eight days before presenting his claim to the Office of Tribunals.  There was no response made to that accepted part of the claim by the respondent.  Accordingly, the tribunal had to determine whether or not those claims which had been accepted were well-founded and, if so, the appropriate remedy including any award of compensation in respect of these claims.

2.	The decision of the tribunal that follows is based upon the substance of the claims, the oral evidence of the claimant and also the documentary evidence introduced by the claimant. 

The Tribunal’s Determinations of Fact

3.	In consequence of the oral and documentary evidence, the tribunal on the balance of probabilities established the following material facts:-

3.1	The claimant commenced employment as a Car Park Attendant/Driver on 
1 September 2008. The place of employment was known as “Red Cent Car Parking”, located at 50 Moira Road, Nutts Corner, Crumlin, Co Antrim, BT29 4LS.  Upon examination of the wages advice records in respect of this employment and also copies of two wages cheques (which had been returned by a Bank unpaid) and after consideration of all the other evidence in the matter, and at the suggestion of the claimant, the tribunal determined that facts indicated that the proper identity of the employer in this matter was a company of limited liability known as “Red Cent (Nutts Corner) Limited”. 

3.2	The claimant’s hours of work varied but he appears to have been employed variously between three and twelve hours per day, quite regularly working as much as twelve hours on working days.  The claimant’s oral evidence was that he regularly worked 42 hours per week and that his hourly rate of gross pay was £6.50. That conflicted with the gross and nett wage otherwise stated by the claimant in his claim form. The tribunal’s finding in that regard to wages is that mentioned below.

3.3	There was no statement of written terms and conditions of employment.  There was apparently no agreement in respect of paid annual leave. Indeed, the claimant indicated that he had never received any paid annual leave in respect of this employment at all from the very commencement to the end of the period of employment.  In his claim form the claimant stated that his gross pay per week was £250.00 and his net take home pay was £220.00 per week. The tribunal determines these to be the relevant figures for the purposes of this decision.

3.4	From 1 January 2010 onwards until the end of the employment the claimant did not receive any wages from the respondent at all.  Certain wages cheques were tendered to the claimant by the respondent but these were returned marked “refer to drawer” by the Bank. One of these was from the respondent and another appears to have been from a company known as “Red Cent Vehicle Rental Limited”.  The tribunal inspected some correspondence from Ulster Bank Limited returning these cheques. That indicates that these cheques were drawn on two different accounts. The conclusion from this is that some other (perhaps sister) company was, it appears, assisting the respondent in endeavouring to meet wages obligations. 

3.5	The claimant was summarily dismissed from employment, without notice or pay in lieu of notice, by the respondent with effect from 12 February 2010.  The tribunal did not need to determine any further material findings of fact for the purpose of the decision in this case.  

The Applicable Law

4.	The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), Article 118, provides that the statutory minimum period of notice required to be given by an employer to terminate the contract of employment of an employee who has more than one month and less than two years’ continuous service is one week.  In the absence of evidence of enhanced contractual terms, this minimum statutory notice is deemed to be incorporated into any contract of employment.  It is a breach of contract on the part of any employer to fail to provide either pay in lieu of notice or the due notice on termination of employment.  A breach of contract claim may be brought under the terms of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.  This enables employees to recover sums due under contracts of employment which arise or are outstanding upon termination of any employment.  Article 45 of the 1996 Order provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or by a relevant provision of the worker’s contract, or the worker has previously signified in writing his consent to the making of the deduction.  Failure to pay wages on any occasion constitutes a deduction.  Under Regulation 13 of the Working Time Regulations (Northern Ireland) 1998 (as amended by the Working Time (Amendment) Regulations (Northern Ireland) 2007) a worker is entitled to a statutory period of paid annual leave in any leave year.  The statutory grievance procedure contained within the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) requires the employee to put his complaint in writing to the employer and for the employer to invite the employee to a meeting to discuss the grievance.  Article 17 of the 2003 Order provides that if it appears to the industrial tribunal that the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, the statutory procedure was not completed before the proceedings were begun, and the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, the tribunal shall normally increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount up to 50 per cent. 

The Tribunal’s Determination

Holiday Pay

5.1	In this case the tribunal without difficulty accepts the claimant’s evidence that there was a total failure on the part of the respondent to afford any paid annual leave throughout the course of this employment.  The claimant’s claim is thus determined by the tribunal to be well-founded. The Working Time (Amendment) Regulations (Northern Ireland) 2007 provide that for the leave year commencing 1 April 2008 any employee is entitled to 4.8 weeks’ paid annual leave.  For the leave year commencing 1 April 2009, the equivalent is 5.6 weeks’ paid annual leave.  In this case, the employment commenced on 1 September 2008 and continued for seven months up to 31 March 2009.  The equivalent period, on a pro-rata basis, of paid annual leave ought thus to have been 14 days for that leave year.  In respect of the corresponding period for the next leave year for the employment, commencing on 1 April 2009, up to the time of termination, 12 February 2010, the equivalent period on a pro-rata basis is 24 days’ paid annual leave.  Therefore 38 days’ paid annual leave are due to the claimant.  The tribunal is satisfied from the evidence that the correct pay (net) per day for these unpaid leave days is £44.00. The claimant is therefore due the sum of £1,672.00 in respect of this.

Pay In Lieu of Notice

5.2	The claimant under this head would be entitled to one week’s pay in lieu of notice.  This is a sum of £220.00.

Unauthorised Deduction from Wages

5.3	This part of the claimant’s claim was not accepted by the tribunal but, in any event, even if that had not been the case the tribunal does not observe from the evidence in the matter any further wages which are owed in addition to the forgoing.  

Statutory Enhancement under the 2003 Order

5.4	In this case the evidence is that the claimant had complied with the statutory procedures insofar as relates to that part of the claim accepted by the tribunal.  There has been no response whatsoever from the respondent to this endeavour on the part of the claimant to engage in the statutory procedures. That being the case, the tribunal’s determination is that under Article 17 (3) of the 2003 Order non-completion of the statutory grievance procedure is wholly or mainly attributable to the employer.  In this case there is no reason not to apply the 10% uplift compensation and, examining the facts and circumstances, the tribunal determines that an appropriate uplift is 40%. That is applied to the calculation of compensation which is set out below. 

The Proper Respondent

5.5	The tribunal determined that the proper respondent is the company of limited liability known as “Red Cent (Nutts Corner) Limited”. 

The Compensation

6.	 Holiday pay                                                                                 £1,672.00

            Pay in lieu of notice                                                                        £220.00

            Statutory uplift (40%)                                                                     £756.80 

     Total compensation                                                                  £2,648.80

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

Chairman:

Date and place of hearing:	29 July 2010, Belfast.	

Date decision recorded in register and issued to parties: