THE INDUSTRIAL TRIBUNALS 

CASE REF:	1508/03

APPLICANT:	Sean Cromie

RESPONDENT:	Rixell Limited

DECISION 

The unanimous decision of the tribunal is that the application be dismissed.  

Appearances:
The applicant appeared in person.
The respondent was represented by Mr G Howard of Peninsula Business Services Limited.

Summary Reasons

1.	The applicant was employed as a production manager by the respondent from 3 June 2002 until 14 March 2003.  It was common case that the contract of employment under which he served included a clause to the effect that the need for additional hours might arise from time-to-time and that it was a condition of employment that a reasonable amount of additional hours would have to be worked when the employee was called upon to do so.  The contract further provided that excess hours above the monthly threshold of eight hours per working day in each month could be taken as time off in lieu.  It also provided that payment for those hours might be granted at time and a half and that this was subject to the approval of management.  The applicant’s evidence was that he worked additional hours on a frequent basis due to the lack of middle management beneath him.  Because of this lack he indicated that he was unable to take time off in lieu in the time immediately surrounding the working of the additional hours.  He had intended, when things settled down in the factory, to take some time off in lieu.  The actual amount of time had never been negotiated or discussed.  At no time did the applicant seek any payment instead of time in lieu and at no time during the applicant’s period of employment was any such payment authorised by management.  As the applicant said himself time off was much more important to him than payment as he wished to spend the time with his family.  However, events overtook the applicant and his contract was terminated before he had taken the time off which he had proposed to take.

2.	The applicant sought, initially, to suggest that the failure to pay/to make payments for additional hours represented an unauthorised deduction.  However, there was never any question that any kind of payment had been authorised.  Payment had not even been asked for.  Consequently payment could not be regarded as being properly payable under the provisions of the Employment Rights Order.  Furthermore, it could not be said that there was any breach of the applicant’s contract with his employer.  The applicant had intended to take time off.  Even on his own evidence, no objection had been raised to his doing so in due course.  His intentions were frustrated however by the termination of his contract before he could take the time off.  This did not in the tribunal’s view, amount to a breach of contract.  Nor was it open to the applicant to seek, at that time, an alternative by way of payment instead.  Accordingly, the application falls to be dismissed.

Chairman:

Date and place of hearing:	29 October 2004, Belfast.

Date decision recorded in register and issued to parties: