Industrial Tribunals Northern Ireland Decisions

 


Guerrero v Darwin Martin (t/a Webworld Ltd) (Jurisdiction/Wages/Notice Pay) [2002] NIIT 3540_01 (7 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 3540/01

APPLICANT: Jerome Guerrero

RESPONDENT: Darwin Martin

T/a Webworld Limited

DECISION

The unanimous decision of the tribunal is that: -

(i) The proper respondent in these proceedings is Darwin Martin, otherwise Herbert Darwin Martin, trading as "Webworld".

(ii) The tribunal does not have jurisdiction to deal with the applicant's complaints of unfair dismissal and of no written reasons for dismissal.

(iii) In respect of the applicant's complaints of non-payment of wages and non-payment of notice, the tribunal determines that the applicant's complaints are well-founded and the tribunal Orders the respondent to pay to the applicant, firstly, the amount of the deduction of wages, being the sum of one week and one day's wages, and, secondly, a sum equivalent to one month's pay in lieu of notice, these sums together being the total sum of £1,241.75.

Appearances:

The applicant appeared and represented himself.

There was no appearance by or on behalf of the respondent.

This is a reserved decision in summary form.

THE ISSUES

1. (a) The tribunal had to determine the correct identity of the respondent.

(b) The applicant's claim as set out in his Originating Application was in respect of: non-payment of wages; non-payment of notice period; no itemised pay statement; no written reasons for dismissal and unfair dismissal. The tribunal accordingly had to decide whether all or any of the applicant's claims were substantiated.

THE TRIBUNAL'S FINDINGS

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

2. Having examined the evidence before it, in the absence of any Notice of Appearance on the part of the respondent or any other representation before the tribunal on behalf of the respondent, the tribunal found that the proper respondent in these proceedings was Darwin Martin, otherwise Herbert Darwin Martin, trading as "Webworld". In reaching that conclusion the tribunal had regard to the documentary evidence adduced before it and to the oral evidence of the applicant.
3. The applicant was employed by the respondent as a programme designer in the respondent's information technology business commencing in this employment on 26 July 2001 and the applicant was continuously employed from that date until 8 October 2001. The applicant was a monthly paid employee, earning per month £1,000 gross and £873 nett (equivalent to, respectively, £230.77 gross and £201.46 nett per week).
4. On the 8 October 2001 the applicant was at work when he was summoned by the respondent to the respondent's office. A brief conversation then took place between the respondent and the applicant, in the course of which the respondent summarily dismissed the applicant. The applicant was not advised by the respondent as to any reason for this summary dismissal. At the time of dismissal the applicant was due to be paid wages for the period commencing on 1 October 2001 and ending on the date of dismissal, 8 October 2001. These wages had not been paid to him by the respondent.

THE TRIBUNAL'S DECISION

5. The applicant had complained to the tribunal of unfair dismissal. The applicant had been employed continuously by the respondent for a period of less than three months. Article 140 of the Employment Rights (Northern Ireland) Order 1996 requires that an employee must be continuously employed for a period of not less than one year ending with the effective date of termination. The tribunal therefore determined that it did not have jurisdiction to deal with the applicant's complaint of unfair dismissal on account of that provision.
6. The applicant had also complained of having received no written reasons for dismissal. On account of Article 124 of the Employment Rights (Northern Ireland) Order 1996 and particularly provisions of Article 124(3), the tribunal determined that it did not have jurisdiction to deal with the applicant's complaint, as Article124 (3) provides that an employee is not entitled to a written statement under that Article unless on the effective date of termination he was continuously employed for a period of not less than one year ending with that date.
7. The applicant had also complained to the tribunal that the respondent had not given to him an itemised pay statement. However, apart from the information given in the applicant's Originating Application as to gross and nett pay, the tribunal had no further evidence or information before it and the applicant did not pursue that application before the tribunal. The tribunal was unable to and declines to make any determination or declaration on foot of Article 44 of the Employment Rights (Northern Ireland) Order 1996.
8. The applicant had also complained to the tribunal of non-payment of money for the notice period. There was evidence of a written statement of main terms and conditions of employment in this matter. In respect of notice the contract states: "Subject to the company's right to dismiss summarily in cases of Gross Misconduct, the period of notice to be given to either party to the other to terminate this employment shall be on (sic.) month, or such period determined by statute". There was no evidence of any contractual entitlement on the part of the respondent to dismiss with pay in lieu of notice. Article 118 of the Employment Rights (Northern Ireland) Order 1996 provides that if a person has been continuously employed for one month or more the notice required to be given by an employer to terminate the contract of employment is not less than one week's notice if the employee's period of continuous employment is less than two years. However, the tribunal's interpretation of the relevant contractual provision was that this provision entitled the applicant to a greater period of notice than the statutory period, a period of one month. As the dismissal of the applicant by the respondent in this case was summary, and without notice or pay in lieu of notice, the applicant is therefore entitled to a sum equivalent to one month's pay in lieu of notice, without deduction of tax (see Delaney v Staples [1992] IRLR 191 HL).
9. Finally, the applicant had complained to the tribunal of non-payment of wages due upon termination of the employment. The applicant was a monthly paid employee and was paid up to the end of the month of September 2001. However, he received no further pay from that date until the date the applicant was summarily dismissed by the respondent, 8 October 2001. This unpaid period was the equivalent of one working week (of five days) and one day. Article 45(3) of the Employment Rights (Northern Ireland) Order 1996 provides that any deficiency in wages due is to be treated as a deduction made by the employer. The tribunal determines the applicant's complaint under Article 55(1) (a) of the Employment Rights (Northern Ireland) Order 1996 well-founded and, on foot of Article 56 of the said Order of 1996, the tribunal Orders the respondent to pay to the applicant the amount of the deduction made in contravention of Article 45, being the sum of one week and one day's wages, nett.
10. The tribunal therefore Orders the respondent, Darwin Martin, otherwise Herbert Darwin Martin, trading as "Webworld", to pay to the applicant the sum of £1,241.75 composed as follows:-

(a) one month's pay in lieu of notice £1,000.00

(b) one week and one day's wages due £ 241.75

TOTAL: £1,241.75

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

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Date and place of hearing: 12 March 2002, Belfast

Date decision recorded in register and issued to parties: 7 June 2002