THE INDUSTRIAL TRIBUNALS

CASE REF:  7293/09

CLAIMANT:			Elena D’Ignoti 

RESPONDENT:		Darina McCormick

DECISION
The decision of the tribunal is that the claimant is entitled to the sum of £183.09 in respect of notice pay, the sum of £179.60 in respect of holiday pay and the sum of £480.41 in respect of arrears of pay arising from failure to pay the minimum wage amounting to a total payment due of £843.10.   

Constitution of Tribunal:
Chairman:		Mrs A Wilson (sitting alone)

Appearances:
Both parties appeared and gave sworn evidence but neither party was represented.  The claimant not having a fluency in the English language was facilitated by an interpreter, Ms Barbara Fisher, who was also sworn.  

Issues:

The issues for this Tribunal are:-

	(i) 	Was the claimant dismissed by the respondent without notice and if so what amount of notice pay if any, is due to her?

	(ii)	Was the claimant entitled during the course of her employment with the respondent to be paid the minimum wage and if so what arrears of pay if any are due to her? 

	(iii) 	Has the claimant any contractual entitlement to holiday pay and if so what amount if any is due to her? 

Sources of Evidence:-

Witnesses

On behalf of the claimant the tribunal heard from the claimant and from Mr David E Ili.

On behalf of the respondent the tribunal heard from the respondent, Mr McCormick and Mrs Marie McQuaid.

The tribunal considered also the Notice of Application, the Response, documents handed in and referred to by the parties and the submissions of both parties.

Findings of Relevant Fact:-

1. 	The respondent works from home and employed the claimant as a childminder to look after her four children and carry out related light housework.

2. 	There is a dispute between the parties as to the dates of employment including the dates of commencement and termination of employment.  It is the respondent's case that the employment contract ran from 7th May 2009 to 22 July 2009 whereas the claimant alleges that the correct dates are the 6 May 2009 to 23 July 2009.

3. 	Although little turns on the minor disparity between the parties regarding the dates of commencement and termination of employment, issues arise in relation to dates worked throughout the period of employment.  The tribunal having considered all conflicting evidence accepts the evidence of the claimant in relation to relevant dates.  The claimant kept a contemporaneous diary recording the details of her employment and this diary was produced in evidence.  The tribunal is satisfied that it is an accurate record.  The respondent in evidence relied on notes compiled from her electronic diary which proved to be unreliable in a number of respects.  As a consequence the tribunal prefer the evidence of the claimant in relation to relevant dates generally.  

4. 	The claimant was not furnished with a written contract of employment but in so far as is relevant to these proceedings the following terms of employment were agreed between the parties:-

	The claimant was employed by the respondent as a childminder working from 8.00 am to 5.30 pm earning initially £40.00 per day.  This amounts to an hourly rate of £4.21.  During this initial period the claimant was to shadow the respondent's Mother who had been looking after the children.  Following this the claimant was to work by herself earning £42.00 per day.  This amounts to a daily rate of £4.42.  The claimant was entitled to 2 weeks holiday at Christmas, 2 weeks in Summer time and "other days scattered throughout the year" amounting to a total holiday entitlement of 28 days. 

5. 	Shortly into the employment contract, the claimant expressed dissatisfaction with her working hours and an agreement was reached between the parties that the claimant would work a reduced week to be agreed in advance with the respondent.  The length of the working day remained largely the same.

6.	On 22 July the claimant experienced difficulties in carrying out her duties due to a reluctance on the part of her charges to carry out routine instructions.  Having repeated her instructions several times to no avail one of the younger children reacted by scratching the claimant.

7. 	The claimant approached the respondent in relation to this incident shortly after it happened.  The respondent asked that the child apologise and cautioned the child not to repeat such behaviour.  The offending child was reprimanded and sent to bed early that evening.

8. 	On the following morning the claimant contacted the respondent by telephone to say that she would be late for work because her partner was unwell.  Later in the day she rang to say that she would not be able to attend work at all that day because she was worried about her partner.  She asked however if she could call to collect her pay and this was agreed with the respondent.  The respondent alleges (and the claimant denies) that the claimant asked that when preparing her pay for collection, holiday pay due to her should be included. 

9. 	It is the respondent’s case that the claimant called to collect her pay which the respondent had prepared and which was as normal placed in an envelope with the details of the amount paid noted on the envelope.  The parties met in the respondent's study.  There was nobody else in the study at the time.  The claimant accepted her pay and said that she no longer wished to work for the respondent.  It is the respondent's case that there was an exchange where voices were raised and this was overheard by the respondent's husband who was outside the study.  The respondent says that she asked the claimant to reflect on the situation over the weekend and that the claimant responded by criticising the respondent and her children and saying that she no longer wished to work for her.

10. 	It is the claimant's case that she called to the respondent in her study to collect her pay as arranged.  She observed from the details noted on the pre- prepared envelope containing her pay that holiday pay was included.  This surprised her and she queried it.  It is her case that the respondent in response terminated her employment explaining that she needed somebody better able to cope with the children.  Some discussion ensued as to payments due and the claimant left.  It is her case that at all times during her discussion with the respondent there was nobody else in the study.

11. 	The tribunal heard evidence from Mr McCormick to the effect that he heard raised voices from within the study.  He entered the study on the pretext of looking for something and he heard the claimant criticise the respondent and their children and say that she no longer wished to work there.

12.	The tribunal accepts the evidence of the claimant in preference to that of the respondent and Mr McCormick.  The claimant is consistent in her evidence that she and the respondent were alone in the study.  This is consistent with the respondent’s case but at odds with the evidence given by Mr McCormick.  The tribunal had reason to correct the respondent for what appeared to be a clear attempt by her to prompt her husband during his evidence on this point.  It is the respondent's clear case that her husband heard raised voices but no detail because he was outside the study.  Mr McCormick's evidence is that he heard the exact words spoken because he was present at the time.  The tribunal do not accept this evidence and view it as an attempt by Mr McCormick to falsely corroborate his wife's version of events. 

13.	The tribunal find that on the balance of probabilities the claimant did not ask that her holiday pay be included with her weekly pay and that she was surprised to find that it had been.  The tribunal find that the fact that this money was in a pre-prepared envelope ready when the claimant called to be consistent with the claimant's case that her employment was terminated by the respondent without notice. The tribunal find that on the balance of probabilities that payment was prepared in readiness to effect such termination. The respondent during the course of the proceedings expressed the view to the tribunal that she should be pursuing the claimant for failure to give notice rather than vice versa.  The tribunal regard this expression as inconsistent with the respondent’s action in calculating and including holiday pay and consider it unlikely that the respondent would have agreed to a request for holiday pay without objection or without seeking clarification or explanation from the claimant as to why holiday pay was being sought at this time particularly when a holiday period had not been booked by the claimant or agreed by the respondent.  For these reasons the tribunal also find that on the balance of probabilities that the claimant did not resign but was summarily dismissed by the respondent.

The Law and Conclusions based upon the Law. 

14.	Notice Pay. 

	Article 118 (1) of the Employment Rights (Northern Ireland) 1996 provides:-

(1) 	The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more—

			(a) 	is not less than one week's notice if his period of continuous employment is less than two years.

15. 	The tribunal find that the claimant is entitled to a weeks pay under this heading.

16.	The tribunal calculates the claimant's weekly  pay in accordance with Article 18 of the Employment Rights (Northern Ireland ) Order 1996 which provides:-

Remuneration varying according to time of work.

    18.—(1)  This Article applies if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times.

    (2)  The amount of a week's pay is the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.

    (3)  For the purposes of paragraph (2)— 

		 (a) the average number of weekly hours is calculated by dividing by twelve the total number of the employee's normal working hours during the relevant period of twelve weeks, and

	 (b) the average hourly rate of remuneration is the average hourly       rate of remuneration payable by the employer to the employee in respect of the relevant period of twelve weeks.

    (4)  In paragraph (3) "the relevant period of twelve weeks" means the period of twelve weeks ending— 

	 (a) where the calculation date is the last day of a week, with that week, and
	 (b) otherwise, with the last complete week before the calculation date.

17.	The relevant period of twelve weeks is the period from 6 May 2009 to 23 July 2009 being the entire period worked by the claimant and amounting to eleven full weeks.
 
18. 	The tribunal find in reliance on the claimant's diary that the claimant worked thirty seven days and in the absence of evidence to the contrary find that these were 9.5 hour days. 

19.	The claimant accordingly worked 351.5 hours (37 days x 9.5 hours).  Based on these calculations and uplifting the claimant's pay to the applicable level of the statutory minimum wage (£5.73 per hour), the tribunal find that the claimant's weekly pay for the purposes of these proceedings amounts to £2,014.09 (351.5 x £5.73) divided by 11 = £183.09.

20. 	The Tribunal awards the claimant the sum of £183.09 in respect of notice pay.

21.	Holiday pay.

	The issue regarding holiday pay for the purpose of these proceedings will be considered under The Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order.  The tribunal find that the claimant was employed for eleven full weeks and on termination of her employment she received the sum of £147.00 in respect of holiday pay.  This amounts to 3.5 days calculated at an hourly rate of £4.42.  Holiday pay should have been calculated using the statutory minimum wage which would have amounted to the sum of £190.52.  The claimant is owed a balance of £43.52 under this heading.  The tribunal award the claimant the further sum of £136.08 in respect of 2.5 days leave earned and untaken.   This is calculated on a pro rata basis based upon an annual contractual entitlement of 28 days.

	Total amount due in respect of holiday pay =£179.60

22.	Arrears of wages.
	
	The issue regarding failure to pay the national minimum wage has been considered under The National Minimum Wage Act 1998 and The National Minimum Wage Regulations 1999 as amended by The National Minimum Wage Regulations 1999 (Amendment) Regulations 2008.  The Tribunal find that the claimant was entitled to be paid the statutory minimum wage.

23.	The applicable rate at which the tribunal calculates the minimum wage for the purposes of these proceedings in accordance with this legislation is £5.73 per hour.  The claimant was actually paid £4.21 per hour for the first ten days and £4.42 per hour thereafter.

24.	Having found that the respondent failed to pay the claimant the statutory minimum wage the tribunal find that the claimant is entitled to arrears in the sum of £116.10 in respect of the first ten days calculated as follows:-

Days worked = 10

Hours worked = 95.

Payment received =      95 x £4.21        = £399.95

Payment entitlement =  95 x £5.73        = £544.35

Amount due = £544.35 - £399.95          = £144.40

25.	The tribunal find that the claimant is entitled to arrears in respect of the remaining period as follows:-

Days worked  = 27.

Hours worked = 256.5.

Payment received = 256.5 x £4.42       = £1133.73

Payment entitlement = 256.5 x £5.73   = £1469.74.

Amount due                                            = £336.01.

	Total amount due in respect of arrears of pay = £480.41.

26. 	The Tribunal award the claimant the total sum of £843.10

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

Chairman:

Date and place of hearing:  7 January 2010, Belfast

Date decision recorded in register and issued to parties: