Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   2101/13

 

 

 

CLAIMANT:                          Amanda Kane        

 

 

RESPONDENT:                  Metro Travel Ltd, t/a Breakaway Travel Ltd   

 

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the respondent is ordered to pay the claimant the sum of £1,513.64.

 

 

Constitution of Tribunal:

 

Chairman:                Miss E McCaffrey

 

Members:                 Mr F Murtagh

                                    Mr E Miller

 

           

Appearances:

 

The claimant appeared in person.

 

The respondent had entered a response but was not represented at the hearing.

 

 

 

THE ISSUES

 

1.         The issues for the tribunal to consider were whether the claimant was entitled to:-

 

(1)        notice pay;

 

(2)        pay in lieu of holidays accrued but not taken; and

 

(3)        arrears of pay in relation to her allegation that she had been paid below the rate agreed with the respondent.

 

 

THE FACTS

 

2.         This is one of four claims all brought against the same respondent.  The claimant commenced employment with the respondent on 1 January 2013 working 32 hours per week.  She started work with the employer having been off on a period of maternity leave after she was made redundant from Co-Operative Travel.  She had agreed with her employer that she would be paid £6.49 per hour which was the amount she had previously been paid while working for the Co-Operative Travel.  Her contract of employment indicated her pay would be £9,600.00 per annum.  The actual pay she received was £845.33 per month (gross), £809.61 per month (net).  By the claimant’s calculations if she had been paid the correct amount she would have been entitled to receive £899.95 per month (gross).  She worked 32 hours per week after unpaid breaks and worked four days per week.  She had also agreed with the respondent that she would receive commission at the rate of 10% on individual sales but never received any money.  She approached Mr White of the respondent company with her colleagues about this some time before the business closed.  He indicated that finances were difficult and asked them to wait for payment which they reluctantly agreed to do.

 

3.         The tribunal notes that the name of the respondent given in the claimant’s claim form is “Brian White” and secondly, “Metro Travel trading as Breakaway Travel”.  The response form lodged by the respondent gives the correct name of the respondent as “Metro Travel Ltd”.  The contracts of employment produced to the tribunal give the name of the employer as “Metro Travel Ltd. trading as Breakaway Travel” and we note the name of the employer on her payslips is given as “Breakaway Travel Ltd.”  Accordingly we amend the name of the respondent to read “Metro Travel Ltd. trading as Breakaway Travel Ltd.”  The response form was lodged in the case of this claimant, but seems to refer to all four claimants.

 

4.         On 9 September 2013 Mr Brian White, a Director of the respondent company called all staff to a meeting at the respondent’s premises.  He had advised them that he was closing the business and that they would all receive one week’s pay in lieu of notice which was paid to them.  The contract of employment given to the claimant indicated that she was entitled to one month’s notice when she was employed for over a month up to five years in service.  The contract also specified that staff were entitled to 20 days’ paid leave plus eight bank holidays pro-rata for part-time employees.  The claimant was aged 32 at the date of dismissal.  At the date of the hearing the respondent company is still active.  The claimant was entitled to 15 days holiday up to the date of dismissal and had taken 6.5 days’ leave.

 

5.         The claimant found a new job commencing on 2 January 2014.

 

 

THE RELEVANT LAW

 

Written Terms and Conditions of Employment

 

6.         An employee is entitled to receive written terms and conditions of employment by virtue of Articles 33(1) and Article 36(1) of the 1996 Order.  By Article 27 of the 2003 Order, where the tribunal finds that no contract has been provided, it shall award two weeks’ gross pay and they award up to four weeks’ gross pay if it considers it just and equitable to do so.

 

The Right Not to Suffer Unauthorised Deductions

 

7.         Under Article 45 and following of the 1996 Order an employee has the right not to suffer unauthorised deductions from his wages unless the deduction is required or authorised to be made by virtue of the statutory provision or provision of the orders contract or the worker has previously signified his agreement in writing or consent to the making of the deduction.

 

8.         Article 55 of the 1996 Order specifies that a worker may present a complaint to an Industrial Tribunal in relation to deductions from wages and that complaint must be presented before the end of the period of three months beginning with the date of the deduction.  If a complaint is brought in respect of series of deductions, then a reference to the deduction or payment is to the last deduction of payment in respect of which a complaint is made.

 

Minimum Wage

 

9.         Under the National Minimum Wage Act 1998, workers are to be paid at least national minimum wage for the current year.  For the years at issue in relation to these claims, for the year from October 2011 the rate was £6.08 per hour and from October 2012 the rate was £6.19 per hour.  It was increased further in October 2013.

 

Accrued Holiday Pay

 

10.      Under the Working Time Regulations all employees are entitled to a minimum of 28 days’ paid holiday per year if they are employed full-time.  Their leave will be reduced pro-rata according to the hours that they work.  They are entitled to be paid for holidays accrued but not taken if their employment ceases in the course of the year.

 

Reasons and Decision

 

11.      The claimant in this case was summarily dismissed by the employer with one week’s pay in lieu of notice, without being given proper payment for accrued holiday entitlement.  She is not entitled to claim unfair dismissal as she had less than one year’s service.  We are satisfied that the claimant was entitled to receive commission.  However because of lack of information which the claimant has been able to obtain about the actual commission due, we cannot make any award in that regard.

 

12.      We are satisfied on the information we were given by the claimant that she was entitled to be paid at the rate she had agreed with the employer namely £6.49 per hour.  Accordingly she was paid 39p per hour below the rate agreed which works out at £12.48 (gross) per week.  She was employed by the respondent for 36 weeks and accordingly the arrears of pay to which she is entitled are as follows:-

 

£12.48 x 36                                                                                                    =  £449.28

 

 

Notice Pay

 

The claimant was contractually entitled to four weeks’ notice pay but received only one week’s notice. 

 

Accordingly she is entitled to three weeks’ notice.  We calculate that the gross pay she was entitled to should have been as follows:-

 

£6.49  x  32 hours                                                                                        =   £207.68

 

£207.68  x  3                                                                                                  =   £623.04

 

Holiday Pay

 

We calculate that the claimant was entitled to 22.5 days holiday per year.  She had taken 6.5 days and her holiday entitlement up to 9 September was 15 days.  Accordingly she is due 8.5 days holiday which we calculate as follows:-

 

8.5  x  £51.92                                                                                                  =  £441.32

 

The claimant had less than one year’s service and so is not entitled to claim for unfair dismissal.

 

We therefore order the respondent to pay to the claimant the total sum of £1,513.64

 

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

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:          26 February 2014, Belfast.          

 

 

Date decision recorded in register and issued to parties: