THE INDUSTRIAL TRIBUNALS 

CASE REF:	1301/04

APPLICANT:		Gareth Doolan	

RESPONDENT:		Royal Mail			 

DECISION ON A PRE-HEARING REVIEW 

Pursuant to Rule 15(2) (b) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004, and with the consent of the parties, the tribunal hereby dismisses the above complaint, with no further order.  This determination does not affect any subsequent complaint the applicant has made to the tribunal.

Appearances:
The applicant appeared in person. 
The respondent was represented by Ms O’Neill, Napier & Sons, Solicitors.

Summary Reasons:
Pursuant to Rule 12 (4) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004, these reasons are given in summary form.

The tribunal found the following facts:-

1.	On 1 April 2004, the applicant presented an originating application to the Industrial Tribunal, complaining that the respondent was in breach of contract in withholding of payment.  At section 13 of the originating application, the applicant asserted as follows:

The Return Letter Centre was closed on 2 January 2004 and I was forced to take the day off at my own expense (i.e. flexi-time).  This was done by management without consultation with either myself or my union.  Since over the last 12 years I have had free choice of when I take holidays, I feel this has breached (an implied) part of my contract of employment.  When challenged by a solicitor’s letter, management replied that they had agreement with the union.  On investigation this was most certainly not the case.

2.	The respondent’s notice of appearance, presented on 27 May 2004, indicated at section 4 that the applicant had not been dismissed.  At section 7 of the notice of appearance, the respondent contended that:

The respondent denies that it unlawfully deducted wages from the Applicant as alleged or at all.

The National Return Letter Centre where the applicant is employed was closed on 2 January 2004.  The decision to close the Centre was taken by the Centre Manager, Ray Kennedy, due to popular demand amongst staff.

In early December 2003 a number of requests were received by management for the Centre to close on the Friday after New Year’s Day, thus giving staff an opportunity for a long weekend.  Staff were given the option to work the time up as flexi-time, take it as annual leave, or take it as unpaid leave.

The applicant opted for flexi-leave and was present at a team meeting when the close was discussed and he signed a sheet to confirm that he would take the time as flexi-time.

There is no evidence that the respondent unlawfully deducted wages from the applicant within the meaning of article 45 of the Employment Rights (NI) Order 1996.  The applicant did not work on 2 January 2004 and therefore was not entitled to wages.

The respondent further denies that it breached its contract of employment with the applicant as alleged or at all.  The tribunal has no jurisdiction to hear the applicant’s breach of contract complaint as his contract of employment has not been terminated …

3.	Accordingly, the matter came before us as a pre-hearing review.

4.	The applicant is a member of the Communication Workers Union.  The tribunal finds that there is no provision in the applicant’s contract of employment for him to be paid by the respondent when he is not at work (other than when he is off sick).  In January 2003, the respondent was asked by its employees to close the return letter centre on 2 January 2004 so that staff could  have a long weekend.  Therefore, there was a popular proposal for the Return Letter Centre to close from the Friday after Christmas until 3 January 2004, and that staff would take this time off by either (i) unpaid leave or (ii) flexi-time.  This proposal was discussed with the Communication Workers Union, although we find that the Union did not formally agree the proposal to close the Return Letter Centre.  The proposal was then discussed at a team meeting, and staff were told that they could take off 2 January 2004 as 

Either (i)  TOIL/ flexi-time, (ii) annual leave or (iii) unpaid leave.  The applicant agreed to take 2 January 2004 as flexi-time.  The tribunal finds that the applicant did not work on 2 January 2004, and took flexi-time of 6.5 hours.  Had he worked on 2 January 2004, he would have been paid £30.  The applicant’s employment subsequently ended on 23 June 2004, which obviously post dates the presentation of this complaint.  This tribunal is not here required to determine the subsequent complaint of unfair dismissal which the applicant has presented.

5.	When the provisions of Article 3(c) of he Industrial Tribunals Extension of Jurisdiction Order (NI) 1994 were drawn to the applicant’s attention, he withdrew his complaint of breach of contract.  The Respondent did not, therefore, seek a deposit from the applicant, or any other order.

The decision of the tribunal on a Pre-Hearing Review:

6.	Having considered the originating application, notice of appearance, and the submissions made by each party, the tribunal determines as follows:-

(a)	We are satisfied that this complaint cannot properly fall under the provisions of Article 45 of the Employment Rights (NI) Order 1996 in respect of unlawful deduction from wages.

(b)	Since the applicant cannot establish he satisfies the provisions of Article 3(c) of he Industrial Tribunals Extension of Jurisdiction Order (NI) 1994 – in that this complaint does not arise or is outstanding on the termination of his contract of employment – the applicant made application to withdraw his breach of contract claim, without objection by the respondent.  Accordingly, pursuant to Rule 15(2) (b) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004, the tribunal therefore dismisses this complaint in its entirety.

(c)	This decision does not affect the applicant’s subsequent unfair dismissal claim arising from the circumstances of the termination of his employment on 23 June 2004.

(d)	No further or other Order is now made.  

Chairman:

Date and place of hearing:		     3 December 2004, Belfast

	

Date decision recorded in register and issued to parties: