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Moore v elfast Contract Cleaners Ltd (Unlawful Deduction) [2002] NIIT 1231_02 (13 December 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1231/02

APPLICANT: Edward Moore

RESPONDENT: Belfast Contract Cleaners Ltd

DECISION

The unanimous decision of the tribunal is that:-

(i) the applicant's claim in respect of unlawful deductions from his wages is dismissed;

(ii) references to the tribunal in respect of the respondent company's failure to give the applicant a written statement of particulars of employment, and a written itemised pay statement were withdrawn by the applicant's representative in open tribunal.

Appearances:

The applicant was represented by Mr N Turnbull.

The respondent company was represented by Mr A Montgomery, Barrister-at-Law, instructed by Peden and Reid, Solicitors.

1. These reasons are given in summary form.

2.

(i)

The tribunal heard evidence from Miss Greta McShane, the secretary of the respondent company. The applicant did not give evidence. The tribunal had regard to the contents of his originating application. It also had regard to the documentary evidence submitted by the parties.

(ii) It finds the facts set out in the following paragraphs proved to its satisfaction on the balance of probabilities.

3.

(i)

The applicant was employed as a cleaner by the respondent company. He had worked for them for a number of years, when his employment ended on 30 April 2002. At the relevant time he had been working for them under a cleaning contract which they had for Department of Agriculture premises at Newforge, Belfast.

(ii) Time sheets were submitted by supervisors in respect of hours worked by the applicant and fellow employees. These showed clocking in and clocking out times of employees. When these hours were entered by the payroll clerk, one hour per day should have been deducted from the total in respect of breaks. It was the respondent's case that the applicant was not entitled to be paid for these breaks, whereas the applicant contended that he was.

(iii) As a result of an error by a payroll clerk, this deduction of one hour per day was not made, with the result that over a period of months, the applicant was paid for 95 hours which he did not work.

(iv) At the end of the applicant's period of employment, a deduction was made from the applicant's final pay packet in respect of these alleged overpayments. (In the event of liability, the amount of overpayment was not an issue between the parties).

(v) The applicant's representative conceded that if the applicant was not entitled to be paid for breaks, then the making of the deductions was proper and lawful.

2. The tribunal is satisfied that the applicant was not entitled to be paid for breaks. At no time during the period of 7 years the cleaning contract had been in operation at Newforge had any employee been paid for such a break, and at no time had any employee challenged this, or suggested otherwise, or alleged any breach of contract in this respect. The applicant is not assisted by the provisions of the Working Time Regulations (Northern Ireland) 1998. Although they make provision for rest breaks, etc, the position remains that whether such breaks are to be with pay or not is a matter of contract, as the Regulations are silent on this point.
3. The tribunal finds that the purpose of the deduction from the applicant's pay was to reimburse the respondent company in respect of an overpayment of wages, and that such a deduction is permitted by Article 46(1) of the Employment Rights (Northern Ireland) Order 1996.
4. The tribunal is satisfied that there are no sums owing to the applicant by the respondent company. This application is therefore dismissed.

____________________________________

Date and place of hearing: 13 December 2002, Belfast

Date decision recorded in register and issued to parties: