Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 5697/09         

 

 

CLAIMANT:                                Trevor Gillespie Bell                           

 

RESPONDENT:                          Mercol (NI) Ltd                  

 

 

DECISION

 

The tribunal awards the claimant £2713.54 comprised of £2363.81 in respect of the failure of the respondent to pay the claimant the wages due to him, £249.81 notice pay and £99.92 in respect of holiday pay. The tribunal also makes declarations that the respondent failed to provide the claimant with written particulars of employment in accordance with Article 33 of the Employment Rights (Northern Ireland) Order 1996 and failed to provide the claimant with itemised pay statements throughout the course of his employment in compliance with the requirements of Article 40 of the Employment Rights (Northern Ireland) Order 1996.

 

Constitution of Tribunal:

Chairman (sitting alone):           Mr Wimpress

 

Appearances:

The claimant appeared in person.

The respondent did not appear and was not represented.

 

The Claim

1.       The claimant brought proceedings against the respondent in respect of the respondent's failure to pay wages (unauthorised deduction of wages) breach of contract (notice pay, holiday pay), the right to receive particulars of contract and the right to receive an itemised pay statement.  The respondent filed a response which was rejected due to the respondent's failure to provide sufficient particulars.  The claimant also complained of unfair dismissal in his claim form but this was rejected because he did not have the necessary service.  The respondent did not appear at the hearing and was not represented.

 

 

Sources of Evidence

 

2.       The tribunal heard oral evidence from the claimant and received a number of documents from him setting out the details of his loss.

 

The Facts

 

3.       The claimant commenced employment with the respondent as a Field Sales Executive on 28 April 2008.  The claimant secured this position following an interview with the proprietor, Mr Colson, in which Mr Colson told the claimant that he would pay him £250 per week net.  According to Mr Colson’s calculations this actually worked out at £1,082.50 per month or £249.81 per week.  The claimant did not take issue with this calculation.  In addition, the claimant was told that he would be provided with a company car and would have the opportunity of earning commission based on sales figures.  The claimant never received a written contract of employment or a letter of appointment.  Nor during the course of his employment did the claimant ever receive an itemised pay slip and his wages were often paid late.  The claimant however kept his own detailed records of what he was paid and these formed the basis of his claim that he was paid less than he should have been on several occasions.  In addition, the claimant complained about a deduction made on 29 September 2008 in respect of fuel for private miles, a deduction of £270.85 made on 31 October 2008 for one week’s unpaid leave when the claimant had to travel to England at short notice due to a family crisis and a deduction of £111.65 on 9 December 2008 when the claimant took two days off due to influenza. This came to a total of £2,962.35 but the claimant very fairly conceded that he could have no complaint about not being paid in respect of five days that he spent in England which in effect amounted to unpaid leave and that it would therefore be appropriate to reduce the total amount claimed by a week’s pay, £249.81.

 

4.       The claimant attempted to raise his concerns about shortfall in his pay several times

with Mr Colson but was always rebuffed.  It is also clear that during the latter part of the claimant’s employment, Mr Colson complained to him about sales figures.  On 26 March 2009, the claimant sent a grievance letter to Mr Colson in which he complained about the matters which are the subject of these proceedings together with several other matters including unexplained deductions from his salary.  The claimant also made a specific complaint about a shortfall of £332.50 in his February 2009 wages. In addition, the claimant indicated that it had been brought to his attention that the respondent had not been paying national insurance contributions and PAYE during the course of his employment.

 

5.       On 27 March 2009, Mr Colson telephoned the claimant around 12.00 noon and the

claimant asked for his wages to be paid up to date because it was the last Friday of the month.  Mr Colson told him to bring the car to the office and the claimant responded that he would return the car to the office on the basis that he was paid all of his outstanding wages.  Mr Colson accused the claimant of threatening him and the conversation ended with Mr Colson saying that if the claimant did not return the car he would send people to lift it.  The claimant made his way home to tidy up the car before returning it and emailed Mr Colson and asked if he was being dismissed and if so requested details in writing plus a statement of the monies due to him and confirmation of when it would be credited to his account.  The claimant also attached a copy of his letter of grievance dated 26 March 2009.

 

6.       Before the claimant had a chance to return the car Mr Colson arrived at his home

          and delivered a letter to the claimant dated 23 March 2009 which stated that the

          claimant’s employment would be terminated at the end of the month unless his sales  

          performance improved.  A wages analysis in respect of the claimant’s pay was

          enclosed.  The accuracy of this document was disputed by the claimant.  Mr Colson

          told the claimant that he would be paid up to and including 31 March 2009 but that

          he was not entitled to pay in lieu of notice.  A sum of £332.50 was however credited

          to the claimant’s account on the same day in respect of unpaid wages for February

          2009.

 

7.      In the event the claimant did not receive his March 2009 pay.  The claimant wrote to

         Mr Colson on 2 April 2009 requesting his March pay, one week’s pay in lieu of notice

         and holiday pay together with a response to his previous letter but received no reply. 

         The claimant sent Mr Colson numerous reminders and telephoned him on 24 April  

         2009 but all to no avail.  The respondent also failed to provide the claimant

         with a P45 or P60 despite many requests.

 

 

The Law

 

8.       Article 33 of the Employment Rights (Northern Ireland) Order 1996 provides that an employee has the right to be given by his employer a written statement of particulars of employment in the following terms:

 

“33. — (1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.

 

(2) The statement may (subject to Article 34(4)) be given in installments and (whether or not given in installments) shall be given not later than two months after the beginning of the employment.

 

(3) The statement shall contain particulars of—

 

(a)  the names of the employer and employee,

 

(b)  the date when the employment began, and

 

(c)  the date on which the employee's period of continuous

employment began (taking into account any employment with a previous employer which counts towards that period).

 

(4) The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the installment containing them) is given, of—

 

(a)  the scale or rate of remuneration or the method of calculating   remuneration,

 

(b) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

 

(c)  any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

 

(d)  any terms and conditions relating to any of the following—

 

(i)    entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

 

(ii)  incapacity for work due to sickness or injury, including any provision for sick pay, and

 

(iii)  pensions and pension schemes,

 

(e)  the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,

 

(f)  the title of the job which the employee is employed to do or a brief description of the work for which he is employed,

 

(g)  where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,

 

(h)  either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer,

 

(j)  any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made……”

 

9.       Article 40 (1) of the Employment Rights (Northern Ireland) Order 1996 provides that an employee has the right to be given by his employer ‘a written itemised pay statement’.

 

          Article 40 (2) states:

 

“The statement shall contain particulars of -

 

(a)  the gross amount of the wages or salary,

 

(b)  the amounts of any variable, and …fixed deductions from that gross amount and the purposes for which they are made,

 

(c)  the net amount of wages or salary payable…”

 

10.     The enforcement of Articles 33 and 40 is dealt with in Articles 43 and 44 of the

Order which is by way of reference to an Industrial Tribunal.  In relation to employment particulars, where the tribunal determines the particulars which ought to have been provided under Article 33, the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to (Article 44(2)).  With regard to itemised pay statements, the tribunal may make a declaration under Article 44(3)(a) that the employer has failed to give the employee any pay statement in accordance with Article 40. 

 

11.     An employee may bring a claim for breach of contract under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.  This enables employees to recover sums due under contracts of employment such as the failure to pay wages and holiday pay.   The claim must either arise or be outstanding on termination of the employment.

 

 

Conclusions

 

12.     I am satisfied that the claimant's claims are well founded and that the respondent failed to pay the claimant the agreed basic wage.  I am also satisfied that the respondent failed to provide the claimant with any particulars of contract and or any itemised pay statements in compliance with the requirements of Article 40 of the Employment Rights (Northern Ireland) Order 1996.  As the claimant is no longer employed by the respondent I do not propose to specify the particulars that should have been included in the claimant’s contract other than to say that it should have contained the particulars set out in Article 33 of the Employment Rights (Northern Ireland) Order 1996 insofar as appropriate.  In respect of the monetary aspect of the claimant’s claim I make the following award:

 

1 week’s pay in lieu of notice                                                  £249.81

 

Non Payment of Wages                                                       £2,363.81

 

2 days holiday pay @ £49.96 per day                                        £99.92

 

                                                                                    Total             £2,713.54

 

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

 

 

 

 

Chairman:

 

 

Date and place of hearing:         7 October 2009, Belfast.

 

 

Date decision recorded in register and issued to parties: