Industrial Tribunals Northern Ireland Decisions

 


Foote v Millar (Deduction in Wages) [2002] NIIT 884_02 (13 December 2002)

THE INDUSTRIAL TRIBUNALS

CASE REFS: 884/02

X884/02

APPLICANT: James Foote

RESPONDENT: Howard Millar

DECISION

The unanimous decision of the tribunal is that the tribunal determines the applicant's complaint as being well-founded and the tribunal orders the respondent to pay to the applicant the sum of £283.00. The tribunal finds that the respondent has no valid counter-claim against the applicant and the respondent's counter-claim is dismissed, without further order

Appearances:

The applicant appeared and represented himself

The respondent appeared and represented himself

THE BACKGROUND AND ISSUES

1. The applicant complained of 'loss of earnings' in his application to the tribunal. The respondent, in his Notice of Appearance, made contentions which were treated as constituting a counter-claim by the Office of Tribunals, and registered accordingly. The applicant entered a Notice of Appearance to the respondent's counter-claim, denying the contentions therein contained. At the hearing, after the applicant had made out his case in his evidence-in-chief, the respondent made it clear that he did not take issue with the details of the applicant's complaint but, rather, that he relied upon his counter-claim as set-off against any sums otherwise due. The tribunal accordingly had to determine the applicant's claim and the respondent's counter-claim.

THE TRIBUNAL'S FINDINGS

In consequence of the written and oral evidence before it, the tribunal found the following:-

2. The respondent was an electrical contractor. The applicant commenced working for the respondent as an apprentice electrician in late August of 2000. Wages were paid by the respondent to the applicant under an initial 'lying-week' arrangement. The applicant was employed under the Modern Apprenticeship Scheme. This scheme provided for the applicant's attendance at technical college for part of the working week and attending work with the respondent for the remaining working days of each week. The applicant's wage at the material time was a net wage after any deductions of £131.50 per week. The rate of remuneration was £3.70 per hour for a standard 38½ hour week, including college attendance.
3. On 29 March 2002 the applicant orally gave to the respondent one week's notice of leaving and followed this up with a notice in writing sent to the respondent the following day. In response to this, on the evening of 29 March 2002 the respondent telephoned the applicant and told him not to bother coming in the following week to work his notice period.
4. In and around that time, there was an agreement in place between the applicant and the respondent that the applicant would drive his own vehicle to work, rather than getting a lift in a works vehicle, and would give a lift to another employee. The respondent agreed to pay to the applicant £20.00 travel expenses each week in regard to this arrangement.
5. The applicant contended that, in response to his resignation giving notice of one week, the respondent had summarily dismissed him on 29 March 2002. He further contended, and the tribunal accepted, that he had not received in full the final sum for wages due to him and that he had returned to the respondent a final wages cheque that included a shortfall. Thus the applicant had not been paid in respect of his lying week, nor wages in lieu of notice, nor indeed the reimbursement of the £20.00 travelling expenses due to him. The tribunal notes that in response to these contentions, the respondent made it clear to the tribunal that these matters were not in contention; however the respondent was relying upon his counter-claim as set-off against any sums due.
6. In respect of the respondent's counter-claim, the tribunal takes this as constituting a claim of breach of contract. The tribunal notes that there was no evidence of any agreement in writing permitting the respondent to deduct any sum or sums from the applicant's wages, whether on account of such matters as the applicant's deficiencies in punctuality or attendance at college or otherwise. The respondent produced before the tribunal what purported to be a schedule of timekeeping and attendance records concerning the applicant's attendance at Newtownards Technical College covering the period 2 October 2000 to 11 February 2002. Part of the content of that schedule was in contention as far as the applicant was concerned. The respondent had prepared with that schedule details of what he stated to be the financial cost to the respondent of any deficiencies on the applicant's part in regard to the applicant's attendance at college. That cost, the respondent contended, was the damage flowing from the applicant's breach of contract. It must be noted that it appears that the applicant had received from the respondent certain disciplinary warnings. However, the tribunal took the view that any such were not material to its considerations in this matter.

THE TRIBUNAL'S DECISION

7. The applicant had made a complaint to the tribunal which the tribunal took to be a complaint of breach of contract and a complaint under Article 45 of the Employment Rights (Northern Ireland) Order 1996, which Article provides that any deficiency in wages due is to be treated as a deduction made by the employer. As the respondent did not take issue with the applicant's complaint and appears to have freely conceded that there was one week's wages due in respect of the lying week, and one week's wages due in respect of pay in lieu of notice under Article 118 of the Employment Rights (Northern Ireland) Order 1996, nor indeed does the respondent appear to have taken any issue in regard to the validity of the travel expenses claim, the tribunal determines the applicant's complaint as being well-founded. The tribunal orders the respondent to pay to the applicant one week's wages in respect of the lying week at £131.50 per week, one week's wages in respect of pay in lieu of notice at £131.50 per week, and also the sum of £20.00 in regard to agreed travelling expenses. This is, in total, the sum of £283.00.
8. In regard to the respondent's counter-claim, having considered all the evidence, the tribunal cannot discern any breach of contract on the part of the applicant. Furthermore, the tribunal can discern no loss as having been sustained by the respondent flowing from any alleged breach. That being the case, the respondent has no valid counter-claim against the applicant and the respondent's counter-claim is dismissed, without further order.
9. This is a relevant decision for the purpose of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 13 December 2002, Belfast

Date decision recorded in register and issued to parties: