THE INDUSTRIAL TRIBUNALS

CASE REF:	176/06

CLAIMANT:			Michael Gavin McCartan	

RESPONDENT:		Department for Employment & Learning

		

DECISION 

The unanimous decision of the tribunal is that:-

(i)	The respondent ought to make a payment to the claimant under Article 227 of The Employment Rights (NI) Order 1996.

(ii)	The amount of the payment to be made by the respondent to the claimant is £252.23. 

Constitution of Tribunal:

Chairman:		Mr Travers

Members:		Mrs Ley
			Mr Brewster

Appearances:

The claimant did not attend and was not represented.

The respondent was represented by Mrs K. Dobbin of the Redundancy Payments Branch.

	

REASONS

ISSUES

1.	By a claim form signed on 2nd February 2006, the claimant seeks an order for unpaid holiday pay arising from his time as an employee of David George trading as DMS Property Management [“DMS”].

2.	The claimant did not attend and was not represented.

Notice of the hearing had been sent to the claimant by a notice dated 4th April 2006.                                                                                                      In the circumstances the tribunal decided to proceed in the claimant’s absence. In so proceeding, the tribunal has considered all information in its possession which has been made available to it by the parties.

FACTS

3.	The claimant commenced work with DMS as a filing clerk on 3rd October 2004. His claim form states that he worked a 24 hour week and was paid an average of £450 net per month.

His contract was terminated on 10th August 2005 by reason of his employer’s insolvency.

At the date of termination the claimant had accrued holiday entitlement of 12.15 days.  

LAW

4.	Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 at rule 27 provides that where a tribunal proceeds in the absence of a party, “it shall first consider any information in its possession which has been made available to it by the parties”.

5.	Part XIV of The Employment Rights (NI) Order 1996 provides that upon the termination of employment because of an employer’s insolvency, a tribunal may make a declaration that the respondent ought to pay to the employee the sum of any holiday pay outstanding upon termination of the contract of employment.

6.	Article 233(3)(b) provides that where a tribunal makes a declaration that the respondent ought to make a payment in respect of holiday pay, the tribunal shall ”declare the amount of any such payment which it finds the Department ought to make” [my emphasis].

DETERMINATION

7.	The respondent has provided a RePay System print-out showing an entitlement to 12.15 days holiday pay. This is accepted by the tribunal. The print-out goes on to state that the Claimant’s daily rate of gross pay was £93.33, which results in a net amount due of £801.42.  This figure is not accepted by the tribunal as the claimant in his claim form states that his pay is £450 net per month for a 24 hour week as a filing clerk. 

8.	The tribunal declares that the respondent ought to make a payment to the claimant of £252.34 in respect of holiday pay outstanding at the date of termination of the contract.

9.	The basis of this calculation is as follows:- 

(£450 x 12) divided by 52 = £103.84 per week, divided by 5 = £20.76 per day.

12.15 x 20.76 = £252.23.
 
10.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990. 

Chairman:

Date and place of hearing:	14th June 2006, Belfast.	

Date decision recorded in register and issued to parties: