THE INDUSTRIAL TRIBUNALS

CASE REF:	5485/09

CLAIMANT:			David Young

RESPONDENT:		Gary Elkin T/A Solo Group

DECISION
The decision of the tribunal is that the tribunal finds the claimant’s claim to be well-founded and the tribunal orders the respondent to pay to the claimant the sum of £2,280.00 representing wages properly due to the claimant by the respondent. 

Constitution of Tribunal:
Chairman (sitting alone):		Mr J V Leonard

Appearances:
The claimant did not appear, nor was he represented.
The respondent did not appear and was not represented.

1.	By claim form dated 29 April 2009 the claimant claimed against the respondent unlawful deductions of wages.  By response to the said claim dated 16 June 2009, the respondent conceded that he had employed the claimant and that the claimant had been dismissed but he had been unable to pay wages owed to the claimant as the respondent’s business had closed on 31 March 2009.  The respondent contended that he was in the process of doing an individual voluntary arrangement.  In all other respects the contentions of the claimant made out in the claim form were not contested by the respondent.

The issues

2.	The issue for determination by the tribunal was whether or not the claimant’s claim, as set forth in the claim form, was well-founded and if so what was the appropriate order to be made by the tribunal in consequence. Further to that, in view of the fact that the claimant and the respondent did not appear before the tribunal and were not represented, the tribunal had to determine the appropriate procedure for disposal of the claim.  

3.	The tribunal noted that Notices of Hearing had been duly sent to the respective parties and the matter had been listed at 10.30 am on the notified hearing date.  The matter was called at the listed time and there was no appearance by or on behalf of either party at that time.  Accordingly, the tribunal stood over the case and rose and the tribunal then re-sat to hear the matter at 10.47 am. The matter was again called and the tribunal noted that there was no appearance by or on behalf of either party. The hearing then proceeded.

The applicable procedure where there is no appearance by a party

4.	The tribunal’s Rules of Procedure (2005) are contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules’).  Rule 27(5) of the Rules states:-

“If a party fails to attend or be represented (for the purpose of conducting the party’s case at the hearing under Rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.”

Rule 27(6) of the Rules provides:-

“If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.”

           The tribunal takes the view that it has been provided by the Rules with a fairly broad measure of discretion in such matters as to whether or not any such case might be adjourned or otherwise dealt with in the manner provided for by the Rules.  The tribunal notes the case of Roberts  v  Skelmersdale College  [2003] ICR 1127, [2004] IRLR 69 where the Court of Appeal in England held that when a claimant fails to attend or to be represented at a tribunal hearing, the rules of procedure (being in that case the English equivalent to the Northern Ireland Rules expressed in similar terms) do not impose on the tribunal any duty of its motion to investigate the case that is before it, nor do they impose a duty on the tribunal to be satisfied that, on the merits, the respondent to such a case had established a good defence to the claim of the absent claimant.  Thus, the tribunal is afforded a discretion that it may adjourn the hearing or may dismiss the claim or may dispose of it in some other way.  For a relatively recent commentary on this see Yarrow v Edwards Chartered Accountants [UKEAT/0116/07/RN] – where the Employment Appeal Tribunal in England (His Honour Judge Peter Clarke presiding) stated: “As the Court of Appeal made clear in Roberts v Skelmersdale College [2003] ICR 1127, when considering the earlier Rule 11(3) of the 2001 Rules, the Employment Tribunal has a wide discretion in determining how far it will investigate the merits of the case before dismissing a claim.  It need not give ‘due’ consideration to the documents before it, as the Employment Appeal Tribunal wrongly thought in Roberts. However, it seems clear to me from the wording of Rule 27(6) that the Employment Tribunal must, before dismissing an absent party’s claim, consider the information which the parties made available”.  

5.	In this case, it is quite evident to the tribunal from the papers that the respondent has fully conceded the case made by the claimant in his originating claim form, in its entirety.  Considering the overriding objective contained in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal does not believe that it is appropriate to adjourn the proceedings nor, in particular, to dismiss the proceedings in view of the fact the respondent has not contested any of the issues contained in the claimant’s claim.  The tribunal therefore has reached its determination which is set out below.  

The tribunal’s findings of fact

6.	In the absence of the claimant being present to provide oral evidence, the tribunal considered the content of the documentation before it and determined the following material facts for the purposes of its decision in this case:-

(a)	The claimant was employed by the respondent; the post was contracts manager.  He commenced in that employment on 28 January 2008 and the employment was terminated by the respondent employer on 31 March 2009.  His gross pay before tax was £2,666.66 each month and his normal take home pay per month, including overtime, commission and bonuses, was £2,330.00.  He received £350.00 per month car allowance.  The claimant’s claim was for unauthorised deduction of wages.

(b)	On 31 March 2009, on the termination of this employment, the respondent paid to the claimant the sum of £400.00.  The claimant should have properly received an additional amount of £1,930.00 plus an additional sum of £350 for car allowance, a total of £2,280.00. No further monies for wages were ever paid, notwithstanding the claimant requesting that that be done.

(c)	On account of the nature of the matter and the way the case has come before the tribunal, the tribunal is in possession of no further material information other than the foregoing.

The relevant law

7.     Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that: "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". Article 45(3) of the 1996 Order provides that: "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".  The Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned.  Article 59 of the 1996 Order provides that the definition of “wages”, in relation to a worker, means: "... any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...", subject to certain statutory exceptions which do not apply to the facts of this case.
 
The tribunal’s determination

8.	On the facts, the total amount of wages paid by the respondent to the claimant is less than the total amount of the wages properly payable. Thus, the amount of the deficiency is to be treated for the purposes of Article 45(3) of the 1996 Order as a deduction made by the respondent from the claimant’s wages.  The respondent has clearly conceded that.  This therefore is an appropriate case for the tribunal to make an Order, in view of the foregoing statutory provisions and the facts.

9.	The tribunal finds the claimant’s claim to be well-founded and orders the respondent to pay to the claimant the sum of £2,280.00 representing wages properly due to the claimant by the respondent.

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

Chairman:

Date and place of hearing:	13 August 2009, Limavady

Date decision recorded in register and issued to parties: