Gaile v Calcast Ltd [2004] NIIT 1331_02 (29 September 2004)


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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gaile v Calcast Ltd [2004] NIIT 1331_02 (29 September 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/1331_02.html
Cite as: [2004] NIIT 1331_02, [2004] NIIT 1331_2

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 1331/02

    APPLICANT: Robert Gaile

    RESPONDENT: Calcast Limited

    DECISION

    The unanimous decision of the tribunal is that the applicant did not suffer an unlawful deduction of wages contrary to Articles 45 and 55 of the Employment Rights (Northern Ireland) Order 1996.

    Appearances:

    The applicant was represented by Mr U Adair of Amicus Union.

    The respondent was represented by Mr P Bloch of Engineering Employers' Federation.

    ISSUE

    The issue for the tribunal to decide in this case was whether the applicant had suffered an unlawful deduction of wages, contrary to Articles 45 and 55 of the Employment Rights (Northern Ireland) Order 1996 in that he had not been paid arrears of a pay rise to which he claimed to be entitled from January 2001 to April 2001.

    FACTS

    The facts of the matter were as follows:-

  1. The applicant had been employed by Calcast Limited at its factory at Maydown from approximately October 2000. He was employed initially as a trolley pusher and was subsequently trained and confirmed in post as a production operator from April 2001. As a trolley pusher he earned a flat wage of £221.00 per week gross. He had enquired about being transferred to the piece rate pay paid to production operators which would allow him to earn more. He was told that he had to complete a six week training period. He underwent training and was then appointed as a production operator and put onto piece work at a basic wage of £206.40 per week plus bonus from April 2001.

  2. The Company had been due to carry out a wage review in January 2001 but because of financial difficulties it was agreed with the unions that the wage review would be delayed but that any agreement reached to increase pay would be back dated to January 2001.

  3. By the time the wage rise was finally agreed, it was as part of an overall package of reorganisation within the Company. As part of that process the position of trolley pusher disappeared, and any trolley pushers still in post were made redundant. Most, like the applicant had been moved to other posts in the course of 2001.

  4. It was agreed that the negotiated pay rise would be paid to employees in January 2002 and paid by stages. There was no difficulty in paying Mr Gaile the arrears of pay from April 2001 and he was at that stage graded as a production operator and he received the appropriate back pay. His claim however arose in relation to arrears of pay for the period from January 2001 to April 2001 as he claimed that he should be entitled to back pay at the production operator's rate of pay for that period as well, since the trolley pusher's job had disappeared as part of the reorganisation. The Company in fact paid the applicant arrears of pay at 1.69% which was the initial offer made to the unions in July 2001, at which stage the trolley pusher's job was still in existence.

  5. The applicant conceded that he had not been paid at the production operator's rate until April 2001, but nevertheless claimed that because there was no other agreed rate of back pay, the rate applicable to production operators should apply to him.

    6. DECISION

    It is the view of the tribunal that in order to substantiate a claim for an unlawful deduction from wages, the applicant must first of all show that he is contractually entitled to the amount of wages claimed. The applicant conceded he was paid as a trolley pusher until April 2001. Accordingly it is the finding of the tribunal that the applicant was not entitled to a production operator's rate of pay until he was appointed to that post in April 2001. It is unfortunate from the applicant's point of view that there was no specific agreement in relation to arrears of pay for the trolley pusher. This appears to have been overlooked by both management and unions when the pay review was agreed because of the fact that the trolley pushers' posts disappeared as part of the reorganisation. However, the Company did pay the applicant arrears of pay for the period January to April 2001 at the rate offered by them in the wage offer of July 2001, namely 1.69%. The applicant is unable to demonstrate that he was contractually entitled to any other pay in addition to this amount, and accordingly, the tribunal finds that the applicant did not suffer any unlawful deduction of wages. The applicant's claim therefore fails and the case is dismissed.

    Chairman:

    Date and place of hearing: 29 September 2004, Londonderry.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/1331_02.html