THE INDUSTRIAL TRIBUNALS
CASE REF: 2827/04
APPLICANT: Stephen Allen
RESPONDENTS: 1. Stephen Blakely
2. Blackstaff Construction Limited
3. Department for Employment and Learning
DECISION
The unanimous decision of the tribunal is that the third named respondent is to make a payment under Article 227 of the Employment Rights (Northern Ireland) Order 1996 to the applicant of ten days holiday pay amounting to £540.00 ( 2 x £270.00) and an additional sum of £23.80 in respect of pay in lieu of notice, totalling £563.80. The first named respondent is dismissed from the proceedings.
Appearances:
The applicant appeared in person and was unrepresented.
The first and second named respondents did not appear and were not represented.
The third named respondent was represented by Ms Kathleen Dobbin.
REASONS IN SUMMARY FORM
In reaching its decision, the tribunal considered the documents of record, documents furnished by the parties during the course of the hearing and the oral evidence of the parties.
- The applicant lodged proceedings with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 21 October 2004, claiming redundancy payment, unpaid holiday pay and pay in lieu of notice from the second named respondent. The Department was joined as a respondent on 19 January 2005.
- At hearing the applicant contended that the effective date of termination of his employment was the later date of 21 October 2004, the date upon which the second named respondent went into compulsory liquidation, and not 4 July 2004 as stated on his originating application to the industrial tribunal.
- The tribunal considered the evidence of the parties and the documentation and decided that the effective date of termination was 4 July 2004. Accordingly, the tribunal decided that it had no jurisdiction to deal with the complaint against the second named respondent in relation to unpaid holiday pay and notice pay as the applicant did not present his complaint within three months of the effective date of termination. The tribunal did not accept that it was not reasonably practicable for the applicant to comply with the time limit for lodging proceedings as he had received advice in this regard from the Labour Relations Agency.
- However the tribunal concluded that the applicant was entitled to have his claim for unpaid notice pay and holiday pay against the third named respondent considered under Article 233(1) of the Employment Rights (Northern Ireland) Order 1996.
- The applicant was employed by the second named respondent as a joiner from the end of July 2001. On 4 July 2004 he went into his place of work to hand in a sick line and was given an envelope containing his P.45 dated 4 June 2004. The applicant was forty four years old.
- On 27 July 2004, the applicant wrote to his employer by recorded delivery letter requesting clarification as to the payment of redundancy pay, holiday pay and pay in lieu of notice. He received no response from his employer.
- In early August 2004, the applicant contacted the Labour Relations Agency and was advised to contact the third named respondent and to lodge proceedings with the Office of the Industrial Tribunals and the Fair Employment Tribunal.
- The applicant made a claim for payments from the National Insurance Fund received by the third named respondent on 6 August 2004. On 7 September 2004 the third named respondent wrote to the applicant to advise him that no payments could be made to the applicant until he had taken all reasonable steps to obtain payment from his employer, advising him to compete a form IT1 and to make his application to the industrial tribunal within three months of the date of the letter.
- On 21 October 2004 the second named respondent went into compulsory liquidation and the third named respondent paid the applicant a payment of £810.00 for redundancy and £465.98 in respect of notice pay which was calculated from the applicant's P.60 which included sick pay. No payment was made for holiday due to insufficient evidence.
- Ms Dobbin agreed that the amount paid for two weeks in lieu of notice to which the applicant was the applicant was entitled, should have been calculated on the basis of the applicant's gross weekly wage of £370.50 and not £358.60. Therefore the amount paid by the third named respondent should be adjusted accordingly.
- The applicant was contractually entitled to take six weeks holiday each year. His annual leave year ran from 1 January to 31 December and he was not entitled to carry forward any leave entitlement. The parties agreed that the applicant had taken five days holiday leave prior to 4 July 2004 and was therefore entitled to ten days holiday pay.
- The third named respondent had paid the correct amount to the applicant in respect of redundancy pay.
- This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 24 March 2005, Belfast.
Date decision recorded in register and issued to parties:
