Buda v Ian Shannon [2009] NIIT 4631_09IT (28 September 2009)

THE INDUSTRIAL TRIBUNALS

CASE REF: 4631/09

CLAIMANT: Sebastian Buda

RESPONDENT: Ian Shannon

DECISION

The unanimous decision of the tribunal is that:-

(1) The claimant’s claim for a redundancy payment be dismissed.

(2) The claimant’s claim for notice pay be dismissed.

(3) The claimant’s claim for holiday pay be dismissed.

(4) That the respondent do pay to the claimant the sum of £260 by way of outstanding wages.

Constitution of Tribunal:

Chairman: Mr Davey

Members: Mr Lyttle

Mr Archer

Appearances:

The claimant appeared in person.

The respondent was represented by Mr J Mallon, Barrister-at-Law, instructed by Cunningham Dickey, Solicitors.

Reasons

1. The claimant’s claim was that he had been dismissed by the respondent by reason of redundancy, that this dismissal was without notice, that at the time of his dismissal he had outstanding holiday entitlement and that he was owed outstanding wages. The respondent denied that any dismissal had been effected, alleging that the claimant had resigned and that, accordingly, he was not entitled to pay in lieu of notice or any redundancy pay. The respondent also claimed that the claimant that had taken all his holiday entitlement prior to the date of the termination of his contract and that any outstanding wages had been disposed of by payment in kind.

2. The tribunal found the following facts.

The claimant was employed by the respondent as a restaurant manager from 13 February 2006. He was employed full-time working an entire week with Sundays and one other day off per week. His gross weekly wage was £260 (net £210). On 26 September 2008 the claimant went to see the respondent to tell him that he could no longer work as he had as he wished to take a computer course which would occupy him Monday to Thursday each week. He produced a letter of resignation which further stated that he wished to leave employment on 4 October 2008, the Saturday at the end of the following working week. The letter also stated that the claimant had enjoyed his time with the respondent and was more than willing to help him out when he was free if the respondent would like him to. This letter was handed over to the respondent and accepted by him. The respondent wished the claimant well. There followed a conversation in which the possibility of the claimant being offered work as a waiter from time to time in the future was discussed. However, no firm commitment was entered into on either side. At this time the restaurant was in some financial difficulty but the respondent was still hoping that one of two proposals to improve the position would be accepted. In the event, neither proposal was accepted, and by the following Wednesday, 1 October, both proposals had been rejected. The respondent’s bankers indicated that, apart from the wages cheques due to be issued on Wednesday 1 October, the respondent’s cheques would no longer be honoured and on Thursday 2 October the premises closed.

During the course of 2007 the staff at the respondent’s restaurant had taken all their holiday entitlement for the 2007/8 year before the end of March. Easter in 2008, fell at the end of March. The respondent had indicated that two days holidays could be taken to cover Easter Monday and Tuesday on the basis that these days would be taken from the holiday entitlement of 2008/9. According to the claimant’s contract of employment his holiday year started on 1 April each year. The claimant took the Easter Monday and Tuesday in March 2008. He also took his paternity leave entitlement of 10 days towards to the end of May 2008. He also took time off between 1 April 2008 and the time of the termination of his employment, a total of 12 days off. He took one or two other days off but made these up by days worked in lieu.

3. The tribunal is satisfied that the claimant intended to and did terminate his contract of employment as the manager of the respondent’s restaurant by his letter handed to the respondent on 26 September 2008. The claimant sought to suggest in his evidence that this resignation was withdrawn. However, he stated categorically that he had not asked for the letter back and did not take it back. He further suggested that he believed a new contract had been entered into whereby he would become a waiter at the restaurant on a part-time basis. However, he was unable to identify any specific number of hours due to be worked by him or the specific days to which those hours would relate. The tribunal is satisfied that there was discussion of the possibility of his carrying out waiter duties, that both the claimant and the respondent were well disposed towards the idea but that no final commitment or arrangement was entered into at that time. It may well be that, if the restaurant had survived, a contract would have been entered into in the future either on a part-time or, more likely, on a casual basis. The tribunal does not accept that any such contract was entered into on 26 September 2008 as suggested by the claimant. In the tribunal’s view the letter of resignation was accepted, including the short notice period of just over one week which was proposed by the claimant as the date when he wished his employment to finish. Accordingly the claimant was not dismissed and cannot obtain any redundancy payment or claim unfair dismissal.

4. The tribunal is also satisfied on the basis of the evidence of the book-keeper, Ms Warwick, that the respondent’s records showed that the claimant had taken between 1 April 2008 and 1 October 2008 a full 12 days holiday. As the claimant’s holiday year started on 1 April he was only entitled, by the termination of his contract, to one half of his holiday entitlement, ie 12 days. Those days had all been taken in the holiday year. Consequently, no holiday pay is due. The tribunal is not including in it’s calculations the holidays taken on Easter Monday or Tuesday. The suggestion by the respondent that holidays taken in the 2007/2008 year could be taken from the holiday entitlement of 2008/2009 does not seem to be consistent with the thrust of the Working Time Regulations which require holidays to be taken in the year they are due.

5. For the full week commencing Monday 29 September and finishing on Saturday 4 October, the claimant did not receive payment in the ordinary way. It was suggested in the papers, although no direct evidence was given by the respondent on this point that payment was made by way of a gift of food and drink items with a value in excess of the sum which would have been due. However, no detail was given of the precise items which were so transferred, if any, and no formal or itemised valuation was provided. The tribunal is not satisfied that proper payment was made and awards the claimant the sum of one week’s wages, £260, in respect of one week’s pay for a week during which the claimant was either working or ready and willing to work. As the tribunal has found that the claimant resigned and was not dismissed by the respondent, no question of any or any further pay in lieu of notice arises.

Recoupment

6. No question of recoupment arises.

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

Chairman:

Date and place of hearing: 14 August 2009, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Buda v Ian Shannon [2009] NIIT 4631_09IT (28 September 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/4631_09IT.html Cite as: [2009] NIIT 4631_09IT, [2009] NIIT 4631_9IT

Industrial Tribunals Northern Ireland Decisions