THE INDUSTRIAL TRIBUNALS

CASE REFS:  04631/09
04632/09  
04633/09

CLAIMANTS:		Sebastian Buda
Grace Norma Stothers
				Jennifer Sherwood

RESPONDENT:		Ian Shannon

DECISION

The unanimous decision of the tribunal is:-

 1.	That the claimants’ claims for redundancy payment be dismissed.

 2.	That the claimants’ claims for holiday pay be dismissed.

 3.	That the respondent do pay to the second-named claimant the sum of £401.10 in respect of notice pay and outstanding wages.

 4.	That the respondent do pay to the third-named claimant the sum of £967.00 by way of notice pay and outstanding wages.

Constitution of Tribunal:
Chairman:			Mr M Davey
Panel Members:		Mr Lyttle
				Mr Archer

Appearances:
The claimants all appeared in person.
The respondent was represented by Mr J Mallon, Barrister-at-Law, instructed by Cunningham & Dickey, Solicitors.

REASONS

 1.	The claim of the first-named claimant, Sebastian Buda, was dealt with on 14 August 2009 and a separate decision issued on 28 September 2009.

 2.	The claims of the second and third-named claimants related to redundancy, loss of notice pay, holiday pay and outstanding wages.  The first issue for the tribunal was whether the tribunal had jurisdiction to deal with the claims relating to redundancy payments and holiday pay since the evidence of the respondent was that he had at no time received any complaint or indication by way of a grievance from the claimants or any of them raising the issue of redundancy payments or anything else.  The respondent made this statement in his response and maintained this stance in giving his evidence.  The evidence of the second and third-named claimants was to the effect that, as regards redundancy, they and the first-named claimant had discussed the possibility of making a claim for redundancy and that the first-named claimant had suggested that he would write a letter on behalf of all three of them and arrange for its delivery to the respondent.  The proposed contents of the letter had been discussed and/or read over to them.  However, neither of them had ever seen the letter, neither of them had signed it and neither was able to say by what means or when, if at all, the letter had been sent or otherwise conveyed to the respondent.  There was evidence that the possibility of claiming against the Redundancy Branch of the Department of Employment and Learning had been the subject of some verbal discussion between the second-named claimant and the respondent but there was nothing to show that any letter or other notice was ever sent or delivered by or on behalf of the claimants or any of them.  There was no copy of the letter.  It was established by clear evidence from both the second and third-named claimants that there was no mention in the letter of anything other than redundancy payments.  Specifically there was no mention of holiday pay.  On the basis of this evidence the tribunal is not satisfied that the requirement imposed by Regulation 6 of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004 for claimants to raise a formal grievance with their employer before bringing applications to the tribunal has been satisfied.  Such a formal raising of grievance has to take place in relation to any claim involving inter alia redundancy payments or holiday pay.  Where this formality is not complied with the claim fails. Accordingly the applications of both the second and third-named claimants in respect of redundancy and holiday pay are dismissed.

GRACE NORMA STOTHERS

 3.	The claims remaining in respect of the second-named claimant were for notice pay and for outstanding wages.  The parties had agreed that notice pay in the case of the second-named claimant amounted to £246.66 being one week’s pay for each full year of service.  

	The second-named claimant’s claim for outstanding wages related, according to her evidence, to her final period of work immediately prior to the closure of the respondent’s business.  She worked two days per week and had worked the Tuesday and Wednesday.  The business closed the following day.  It was conceded by the respondent that this money was due.  The other part of the outstanding wages claim related to a claimed “lying week”.  Both the second and third-named claimants stated that a lying week system was in place at the respondent’s business but only for those who had been there from the beginning; new staff were not subject to this arrangement. The second-named claimant produced two wage packets together with her P60 for the year 2004/05 stating that these were the only two weeks for which she was paid in that financial year.  The wage packets were dated respectively 28 March 2005 and 3 April 2005.  Her weekly wage at that time was £70.  The form P60 showed £140 or two week’s wages having been earned by the claimant during the tax year 2004/05.  She had commenced work on 14 March 2005.  However the respondent’s bank account showed two cheques for £70 negotiated on 30 and 31 March 2005, prior to the wage packet dated 3 April 2005.  The respondent’s records showed that cheques had been issued for the weeks ending 21 March 2005 and 28 March 2005.  The respondent’s records also showed the final week (week w/e 3/4/05) when no cheque was issued.  The respondent’s evidence was that no lying week system had ever been operated.  In the light of the documentary evidence the tribunal preferred the evidence of the respondent and concluded that no lying week system was in place.  

	The second-named claimant also gave evidence about extra days she had worked subsequent to the closure of the business for which she had not been paid.  However, she was not able to particularise the days or the rates at which she was supposed to have been paid or even whether any formal arrangement that she would be paid was ever entered into.  She also described an arrangement whereby holiday days were swapped but in the tribunal’s view this aspect of matters fell within the holiday pay claim which, as appears above, falls to be dismissed.  In relation to outstanding wages the claimant is therefore entitled to the sum of £160.44, her weekly wage as at the time of the closure of the business being £80.22 per week.  Together with the agreed sum of notice pay the amount payable to the second-named claimant is £401.10.

JENNIFER SHERWOOD

 4.	The third-named claimant’s claims related to redundancy pay, holiday pay, outstanding wages and notice pay.  As has already been stated the claims for redundancy pay and holiday pay are dismissed.  The parties had agreed that the sum of £223.00 was due by way of outstanding wages.  No issue arose for the tribunal there.  It was conceded that the third-named claimant was entitled to pay in lieu of notice.  There was, however, a dispute as to the length of service of the third-named claimant with the respondent.  

	The third-named claimant had been in the respondent’s employment in a different business before the business the subject of these proceedings came into being.  She was a pastry chef and was, according to the respondent’s evidence, highly regarded by him.  The respondent had been running a restaurant called “The Cooperage” at which the third-named claimant had been employed.  That venture closed but he was proposing to open a new restaurant and wanted her to work there also.  In the event there was a five week gap between the final closing of one premises and the formal opening of the other.  It is common case that the she worked beyond the actual closure of the first business and before the formal opening of the second.  The respondent’s evidence was that he believed it was only a day or two after the first business closed and that a week would have covered the period before the formal opening of the second business.  The third-named claimant’s evidence was to the effect that she had been employed throughout the gap period not every day but for some time during each week.  The tribunal accepted that the third-named claimant had been working at least part-time for the respondent throughout the gap period and that consequently there was no break in employment.  Counting in the period when she had worked in the first business the third-named claimant had five full years service with the respondent and sought notice pay on that basis.  The claimant’s weekly wage at the time the second business closed was £148.80 per week. She is accordingly entitled by way of notice pay to £148.80 x 5 = £744.00.

	The third-named claimant also claimed a “lying week”.  However, the tribunal, for the same reasons as indicated in relation to the second-named claimant rejects the evidence that a lying week system was in place.  Accordingly the amount payable by way of outstanding wages and notice pay is £744.00 + £223.00 = £967.00.

 5.	There were no other issues raised with the tribunal.

RECOUPMENT

 6.	No question of recoupment arises.

INTEREST

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

Chairman:

					14 August 2009
Date and place of hearing:	2 October 2009, Belfast
					12 November 2009

Date decision recorded in register and issued to parties: