THE INDUSTRIAL TRIBUNALS 

CASE REF:    2406/12 

CLAIMANT:	Trevor Cunningham

RESPONDENTS:	1.	Amber Merchants Ltd, t/a Wastebeater Recycling
	2.	Kieran Byrne, Managing Director

DECISION

The decision of the tribunal is that the claimant was wrongfully dismissed by the 
first-named respondent but as he has received all amounts due to him under his contract there will be no award made in favour of the claimant.

Constitution of Tribunal:

Chairman  (Sitting alone):	Ms E McCaffrey

Appearances:

The claimant appeared in person and was represented by his father, Mr Cunningham.

The respondent was represented by Mr Tom Sheridan of Peninsula Business Services Ltd.

ISSUES

1.	The issues to be decided in this case were whether the claimant had been wrongfully dismissed from his employment and whether the claimant had any outstanding entitlement to notice pay and holiday pay facts.

FACTS

2.	The claimant started work on 18 May 2012 for Greenstar NI Ltd.  This company subsequently went into administration and ownership was transferred to the first-named respondent on 1 October 2012.  The claimant therefore did not have a complete one year’s service at the date of his dismissal on 26 October 2012 and is unable to pursue a claim for unfair dismissal.  His claim therefore consists of a claim for alleged wrongful dismissal, notice pay and holiday pay.  I direct that the second-named respondent should be dismissed from these proceedings.

3.	The claimant was due to go on holiday for a week on 26 October, that afternoon he was told by Tommy Reynolds, the manager on the site, that he was to be “let go” and that any money due to him would be sent out.  There was no investigation and no disciplinary procedure.  Although Mr Reynolds did make comments in relation to alleged shortcomings in the claimant’s work performance, there was no proper investigation or procedure followed.

4.	The claimant went on holiday and when he returned he contacted the respondent to seek his P45 which was sent to him somewhat belatedly.  He also received a payment of £950.93 but it was not clear as to what this represented, as no pay advice was sent to him.  At the hearing it was agreed by the parties that this amount represented the claimant’s contractual notice payment of four weeks pay, together with a payment in relation to some holiday pay representing 3.32 days and this was accepted by the claimant’s representative.

5.	The claimant sent a letter to the respondent, pointing out, amongst other things, that he should receive further holiday pay as he believed that he was entitled to more holidays.  He subsequently received a letter from the respondent dated 7 January 2013 setting out his leave entitlement and saying that a balance payment of £265.90 gross would be made to him.  He in fact received the net payment of £195.00 in his account in January.  It was agreed at the hearing that the calculation of this payment was not accurate.  Mr Byrne, who gave evidence on behalf of the respondent indicated that the respondent relied on the information provided to them by Deloittes (the administrators of Greenstar (NI) Ltd) who had confirmed that as 30 September 2012 the claimant was entitled to 3.66 days holiday which had accrued but had not been taken.  It was also agreed by the parties at the hearing that during his four weeks employment with the respondent the claimant had accrued the right to a further 2.33 days holiday making a total of 5.99 days.

6.	The respondent’s evidence was that the payments made to the claimant in November and January covered payment for holidays of 7.08 days and they therefore believed that he had been slightly overpaid in respect of his holidays.  After further discussions at the hearing the claimant’s representative agreed that they were satisfied that any holiday pay due to the claimant had been paid.

7.	Mr Byrne indicated that he was a general manager at the Newry site where the claimant had worked.  He said however that he was not familiar with the details of why the claimant had been dismissed as he said these were normally dealt with by the middle manager (Mr Reynolds) and he did not have any records or details of it.  He was however, clear that as far as he was aware the claimant had received everything he was contractually entitled to.  He also asserted that payslips were sent out as a matter of standard procedure and the claimant agreed that he had received payslips during his employment with the respondent.

8.	From the evidence I have heard I am satisfied that the claimant was wrongfully dismissed in that there were no warnings and no disciplinary procedure followed in relation to this matter.  However the claimant had less than one year’s service and so was unable to bring a claim for unfair dismissal.  I am also satisfied that the claimant was paid his full notice pay to which he was entitled under his contract and was paid outstanding holiday pay.  Accordingly, it would not be appropriate for me to make any further award in his favour.

Chairman:

Date and place of hearing:       12 February 2013, Belfast.

Date decision recorded in register and issued to parties: