Friary v The Wild Duck [2010] NIIT 07516

THE INDUSTRIAL TRIBUNALS

CASE REF: 7516/09

CLAIMANT: Ian Friary

RESPONDENT: The Wild Duck

DECISION

The unanimous decision of the tribunal is that the respondent breached the claimant’s contract of employment by not paying him his contractual wages from January 2009 to July 2009 or in the alternative made unauthorised deductions from his wages during this period. The tribunal awards the claimant £2,600.00 in respect of this loss. The claim in respect of unpaid holiday pay is dismissed.

Constitution of Tribunal:

Chairman: Mr Ian Wimpress

Members: Mr Roger McKnight

Mr Raymond Lowden

Appearances:

The claimant was not represented and appeared on his own behalf.

The respondent did not appear and was not represented.

The claim and the response

1. The claimant brought two claims against the respondent arising from the termination of his employment and a number of other issues. Claim No. 6976/09 was heard on 12-14 April 2010 and the claimant was awarded £5300.04. The present case (claim no. 7516/09) was adjourned because the tribunal was not satisfied that the respondent had received a copy of the claim form and had not filed a response.

2. Notwithstanding the basis on which claim no. 7516/09 was adjourned, the respondent did not file a response in respect of this claim. Nor did the respondent appear at the hearing. At the previous hearing the respondent was represented by its proprietor, Mr Bradley. The respondent was aware that this claim had been re-listed as Mr Bradley had been in correspondence with the tribunal office regarding the hearing. Due to the failure of the respondent to file a response the respondent could only have taken part in the hearing on a limited basis. In these circumstances the tribunal determined that the appropriate course was to proceed with the hearing in the absence of the respondent.

3. The outstanding matters comprised of two claims that were rejected at the pre-acceptance stage in respect of claim no. 6976/09 because although the claimant had stated that he had raised the subject matter of these complaints in writing to the respondent he had not indicated whether he had waited 28 days prior to presenting his claim or detailed why he had not done so in accordance with Rules 1 (4) (j) and (k) of Schedule 1 of the Industrial Tribunals Rules of Procedure 2005. These claims related to unlawful deduction from wages/breach of contract and the right to paid annual leave (Working Time Regulations). The claim in respect of paid annual leave was not pursued at the hearing as the claimant had no evidence that he had not received holiday pay during the relevant period.

Sources of Evidence

4. The tribunal heard oral evidence from the claimant and received documentary evidence from him in respect of the reduction in his wages.

The Facts

5. The claimant commenced employment in Walsh's Hotel in June 2008 and moved to the Wild Duck Inn in April 2009 where he was employed as a bar manager in the Wild Duck Inn. In the tribunal’s decision in claim no. 6976/09 it was held that the claimant’s transfer from Walsh's Hotel to the Wild Duck constituted a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006. It was also held that Mr Bradley controlled both businesses. According to the claimant he never received a written contract of employment. The claimant’s bank statements showed that he was paid £316.79 or £316.59 net per week by Walsh's Hotel from 13 June 2008 to 18 September 2008 and the same amounts by the Wild Duck from 26 September 2008 to 23 January 2009. From 30 January 2009 to 5 June 2009 the claimant was paid the reduced amount of £216.79 by the Wild Duck. According to the claimant he continued to be paid £216.79 per week up until his dismissal on 26 July 2009. These matters were touched on at the last hearing and in the response filed in respect of claim no. 6976/09. In essence the respondent had sought to make the case that the claimant and other managers were asked to take a wage cut in January 2009 in order to stave off redundancies and that the claimant was offered a new contract which incorporated this change. According to the respondent, the claimant refused to sign the new contract but continued to work under the new terms and conditions and thus accepted the reduction in wages. The claimant acknowledged that he continued to work after making a complaint about the reduction in his wages.

6. The claimant was unhappy about the change in his pay and took the matter up with his manager, Mrs Trish Porter, who advised him to air his complaints through the proper channels. To this end the claimant wrote to Mrs Porter on 24 June 2009 and complained about proposed changes to his contract of employment. These included moving from a salaried position to an hourly rate of pay and the reduction in his wages. The claimant made clear that he had not given oral or written consent to the reduction in his pay. The claimant was dismissed on 26 July 2009. Later that summer Mrs Porter died suddenly and there was no reply to the letter of 24 June 2009.

The Law

7. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 provides that an employee may bring a claim for damages for breach of contract of employment or for a sum due under that contract if the claim arises or is outstanding on termination of employment.

8. Article 45 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) makes provision in relation to unauthorised deductions from wages as follows:-

“(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

(4) Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.”

9. The time limit for complaints about unauthorised deductions from wages is dealt with in Article 55 of the 1996 Order which provides that such complaints must be presented to an industrial tribunal before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made. Where a series of deductions is made time runs from the last deduction in the series.

Conclusions

10. We are satisfied that the claimant must succeed in his claim. The claimant has an equally valid claim both for breach of contract and for unlawful deduction from wages. The claimant has clearly demonstrated that his net pay was reduced by £100 per week from 30 January 2009 to 26 July 2009, a period of twenty six weeks. At no time did the claimant agree to the reduction in his wages and as we did not have the benefit of any contrary argument from the respondent we do not consider it appropriate to explore the possible issue of waiver further. The claim falls within the tribunal’s breach of contract jurisdiction as these wages were outstanding on termination of the claimant’s employment. It also constitutes an unauthorised deduction from wages. The last deduction was made on or about 26 July 2009 and the complaint to the industrial tribunal was first brought on 11 September 2009 which is within three months of the last deduction and is therefore within time.

Award

11. £100.00 x 26 weeks £2,600.00

TOTAL AWARD £2,600.00

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

Chairman:

Date and place of hearing: 9 December 2010, Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Friary v The Wild Duck [2010] NIIT 07516_09IT (28 February 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/07516_09IT.html Cite as: [2010] NIIT 7516_9IT, [2010] NIIT 07516_09IT

Industrial Tribunals Northern Ireland Decisions