THE INDUSTRIAL TRIBUNALS

CASE REF:	2625/10

CLAIMANT:			Heather Mary Carroll	

RESPONDENTS:		1.  Brian Cousins
				2.  Department for Employment and Learning		

DECISION 
The decision of the tribunal is that the claimant is entitled to compensation as follows:

(1)	£4381.01 against the first respondent.

(2)	£3585.12 against the second respondent.

Constitution of Tribunal:

Chairman (sitting alone):		Mrs Ó Murray

Appearances:

The claimant appeared in person accompanied by her husband.

The first respondent did not appear and was not represented.  The second respondent was represented by Mr Cruikshanks.

The Claim

1.	The claimant’s claims were as follows:

	(1)	For breach of contract in respect of arrears of wages, holiday pay and notice pay.

(2)	For a redundancy payment.

2.	The claimant’s claims were against the first respondent, as her former employer, and against the second respondent, for failure to make a payment from the statutory fund.  The Department refused to make a payment as no supporting documentary evidence was provided by the insolvency practitioner dealing with the first respondent’s affairs.

Findings of Fact and Conclusions

2.	I considered the claimant’s oral evidence and the documentary evidence provided by her and I found the following facts proved on a balance of probabilities and reached the following conclusions.

3.	The claimant worked for the respondent from 1 February 1998 until 1 February 2010 when she was summarily dismissed as there was no work for her.

4.	The effective date of termination (EDT) was 1 February 2010 and the claimant was aged 54 at that date as her date of birth is 1 April 1955.

5.	The claimant’s hours of work fluctuated from week to week and she was paid sporadically.  The pay slips received each week were not accurate and the claimant kept her own note of hours worked as she was concerned about the sporadic nature of the payments made to her.

6.	I am satisfied with the accuracy of the claimant’s chart of hours worked, holidays taken and payments received as they were drawn from the claimant’s own contemporaneous notes and from pay slips received.

7.	During some weeks of work, particularly towards the end of her employment, the claimant had weeks when she did not work at all.

8.	Given the sporadic nature of the claimant’s hours of work and the payments received by her, I have calculated her gross and net week’s pay in accordance with Article 20(2) of the Employment Rights (Northern Ireland) Order 1996 (ERO) which states as follows:

		“20(2) the amount of a week’s pay is the amount of the employee’s average weekly remuneration in the period of 12 weeks ending –

(a)	where the calculation date is the last day of a week, with that week, and

(b)	otherwise, with the last complete week before the calculation date.

	In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to 12 the number of weeks of which account is taken”.

9.	The last 12 weeks during which remuneration was payable by the employer to the employee were weeks 23, 24, 25, 26, 27, 28, 29, 31, 33, 34, 38 and 39.  I have included weeks 38 and 39 during which the claimant took two weeks’ Christmas  holidays as she was liable to be paid remuneration during those weeks and they therefore count for the purposes of calculating a week’s pay under Article 20 of ERO.  

The total number of hours worked during that 12-week period was 165.

The average weekly hours worked (rounded up) was 14 hours per week.

The claimant received payment at £6.60 per hour gross.

The claimant’s gross weekly pay was £92.40.

The claimant’s net weekly pay was approximately £73.92.

Holiday Pay

10.	As there was no contractual terms stipulating when the holiday year began and ended, the Working Time Regulations provide that the holiday year begins on 1 October in any given year and expires on 30 September the following year.

11.	Whilst the claimant took holidays she was never paid for them.

12.	As the claimant left on 1 February 2010 the calculation for holiday entitlement is as follows:

	123 days ÷ 365 days x 28 days’ entitlement = 9.4 days

	Net daily rate of pay:  £73.92 ÷ 5 = £14.78.

	£14.78 x 9.4 days = £138.93.

	The claimant was entitled to be paid for her full holiday entitlement in 2008/2009 amounting to 28 days x £14.78 = £413.84.

	Total sum awarded for holiday pay:	£552.77

	Notice Pay					

13.	The claimant was entitled to the maximum statutory notice of 12 weeks under Article 118 of ERO.  

14.	The claimant is therefore entitled to £887.04 calculated as follows:

	12 weeks x £73.92 net =			 £887.04

Arrears of Pay

15.	In calculating the arrears of pay I took account of the hours during which the claimant worked.  I did not take account of hours during which she was on holiday and was not paid nor did I take account of the weeks during which she was not allocated any hours of work.

16.	The claimant is entitled to arrears of pay from the first respondent in the sum of £1278.00 calculated as follows:

Total hours worked 2008-2010: 836 hours

   X £6.60 gross
   £5517.60

– 20% 			= £4414.08 net sum due

Less cash received		   £3136.08
					    _______

Balance due		  	   £1278.00
					  ________

Redundancy Payment

17.	The claimant is entitled to the sum of £1663.20 for redundancy payment calculated as follows:

	Age at EDT of 1 February 2010 	= 54
	Number of years worked           	= 12 years
	Gross weekly wage at EDT       	= £92.40
	12 years x 1½ x £92.40            	 = £1663.20

Summary

18.	The first respondent is now bankrupt.  I have exercised my discretion to continue with the proceedings and award the following sums in compensation against the first respondent.

	Arrears of Pay			£1278.00
	Holiday Pay				£  552.77
	Notice Pay				£  887.04
	Redundancy Payment		£1663.20
							  ______

	Total:					£4381.01
							  _______

19.	I declare that the following sums are payable by the second respondent from the statutory fund in view of the first respondent’s bankruptcy.

	Arrears of pay subject to a maximum of eight weeks
ie 8 x £73.92 net						=	£ 591.36
	Notice Pay 12 weeks x £73.92 net			=	£ 887.04
	Arrears of Holiday Pay subject to a maximum of six weeks
	6 weeks x £73.92 net					=	£  443.52
	Redundancy Payment					=	£1663.20
	
	Total sum payable by the Department			=	£3585.12
											________

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

Chairman:

Date and place of hearing:  14 March 2011, Belfast		

Date decision recorded in register and issued to parties: