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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gerhardus v Alan D'Ambrosio Linda Finlayson CIA Excel Group Limited [2012] NIIT 00936_12IT (24 September 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/936_12IT.html Cite as: [2012] NIIT 00936_12IT, [2012] NIIT 936_12IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 936/12
CLAIMANT: Herman Carl Gerhardus
RESPONDENTS: 1. Alan D’Ambrosio
2. Linda Finlayson
3. CIA Excel Group Limited
DECISION
The decision of the tribunal is that the claimant is awarded a sum of £3,263.02 being unpaid wages due to him. This award is made against the third-named respondent. The tribunal also declares that the third-named respondent should provide to the claimant details of deductions from his pay as detailed below.
Constitution of Tribunal:
Chairman (Sitting alone): Mr S M P Cross
Appearances:
The claimant was represented by a friend Mr A Mawhinney.
The respondent did not appear and was not represented.
FINDINGS OF FACT
1. It was agreed by
the claimant, following correspondence from the respondents that the employer
of the claimant was CIA Excel Group Limited. Accordingly the
third-named respondent is so designated and the first and second respondents
are dismissed from the claim. The award made herein is against the third respondent.
2. The claimant was employed by the third-named respondent, then called Caledonian Investigation Agency Limited, in 2000. At first things went well and the claimant worked as a surveillance operator and close protection officer for the third-named respondent.
3. Recently however the third-named respondent appears to have suffered cash flow problems and wages due to the claimant have not been paid. The claimant was paid £1,708.33 per month gross, £1,302.72 net. The claimant has not been paid since the end of February 2012. His claim is for 2.5 months pay up to the date of the issuing of these proceedings on 23 May. Furthermore the claimant has not received pay dockets in respect of his earnings for the months of January and February, or for the months when he was not paid from March to May. He is not aware if the proper PAYE and National Insurance has been deducted and accounted for to the appropriate authorities.
4. The claimant did not have a written contract of employment. He was shown such a document when he was first employed but was not given a copy. The original was probably in the third-named respondent’s office in Belfast, but that office was closed and all the papers were taken to the head office in Scotland.
5. The claimant wrote grievance letters to the third-named respondent to seek payment of these wages in January 2012 which produced further wages up to February, but letters in March have failed to produce any further payments. As a consequence he has commenced these proceedings.
THE LAW
6. Article 45 of The Employment Rights (Northern Ireland) Order 1996, (“the 1996 Order”), states that if an employer wrongly deducts sums from wages due to an employee, then that employee can claim the unpaid wages through the tribunal. Article 46 sets out certain deductions that can be made from wages. The case of Delaney v Staples [1991] IRLI 112 CA, decided that the failure of the employer to pay any part of the wage due falls within the ambit of Article 45.
7. Article 55 of the 1996 Order gives the unpaid employee a right to bring a claim in an industrial tribunal for such unpaid wages. Wages are defined in Article 59 and include wages such as are payable in this case to the claimant.
8. Article 40 of the 1996 Order provides that an employee has a right to be given an itemised pay slip which shall contain particulars as follows:-
“Article 40 (2) (a) the gross amount of the wages or salary
(b) the amounts of any variable, and subject to Article (1) any fixed, deductions from the gross amount and the purposes for which they are made,
(c) the net amount of wages or salary payable, and
(d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part.”
Article 44 gives the tribunal power to make a declaration, that the employer has failed to give pay statements to his employee, in accordance with Article 40. If the tribunal finds that any unnotified deductions have been made from the pay of an employee during the 13 weeks immediately before the issuing of the tribunal proceedings, the tribunal has power under Article 44(4), to order a payment of the unnotified deductions to the claimant.
DECISION
9. It is clear to the tribunal that the claimant has not been paid his wages for the period set out in his application to the tribunal, namely from March 2012 to 23 May 2012. The tribunal therefore awards to the claimant the sum of £3,263.02, being the net sum of £1,305.21 per month for 2.5 months. The tribunal has heard that there are wages due to the claimant for the months after the issue of these proceedings. As the claim is for the wages up to the issuing of this claim and the respondent was not at the hearing or represented, it is not possible for the tribunal to make an award for any sums accruing after the date of the IT1. To recover the wages so claimed the claimant will have to make a further claim.
10. The tribunal also declares that the respondent has failed to give a written pay statement to the claimant in respect of the months of January, February, March, April and May 2012. The claimant is still in the employment of the third-named respondent and this declaration refers to details of deductions of PAYE and National Insurance contributions. The tribunal is in the position of not knowing whether any unnotified deductions have been made from the claimant’s pay for the 13 weeks before he brought this claim, so it does not award any sum to the claimant in this respect under Article 44(4) of the 1996 Order.
11. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990
Chairman:
Date and place of hearing: 21 August 2012, Belfast.
Date decision recorded in register and issued to parties:
