Industrial Tribunals Northern Ireland Decisions

 


Fee v Lennon (t/a Town & Country Properties) (Unlawful Deduction from Wages) [2002] NIIT 03756_01 (10 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 03756/01

APPLICANT: Raymond Fee

RESPONDENT: John Lennon

T/a Town & Country Properties

DECISION

The unanimous decision of the tribunal is that the applicant suffered an unlawful deduction and the respondent is ordered to pay him £460.80.

Appearances:

The applicant was represented by Mr G Watt, of counsel, instructed by Traynor Mallon & Co, Solicitors.

The respondent was represented by Mr J Byrne, of counsel, instructed by M L White Solicitors.

1. These reasons are given in summary form.
2. The applicant claimed unfair dismissal and unlawful deductions. The respondent denied any liability to the applicant.
3. By consent, the title of the proceedings was amended to John Lennon T/a Town & Country Properties.

Following argument from both parties the tribunal amended the Originating Application to add a claim for breach of contract to the applicant's claim. The applicant's claim for breach of contract was for unlawful deductions and for a consequential economic loss.

The applicant withdrew his claim for unfair dismissal without objections.

4. The tribunal made the following findings:-

(a) The applicant worked for the respondent from 17 September 2001 to 12 October 2001 as a self-employed sales negotiator.

(b) The applicant was to be paid on a commission basis only i.e. based on sales. The applicant was never provided with written terms and conditions of employment nor was he aware of the job advertisement in the paper. He had been referred for the job through a mutual friend of both parties.

(c) At the interview for the job the applicant was told that the job was a self-employed position and that he would be paid on a commission basis. The different types and rates of commission were explained to the applicant.

(d) At the interview the respondent told the applicant "I'll see your right". This statement was not clarified or discussed further.

The applicant interpreted this statement as meaning he would be paid for a couple of months by the respondent until he had built up his client basis from which he would earn his commission.

The respondent states that he meant that commission due to the applicant would be paid to him earlier and that he would not have to wait until the money came into the business, though this was not explained to the applicant.

(e) In the light of all the evidence and the circumstances of the making of the contract between the applicant and the respondent the tribunal is of the view that "I'll see you right" was intended to temper the harshness of commission-only earnings and to induce the applicant to accept the position by making monies available to him from the start.

In the tribunal's view it was an inference that the parties must have intended in the making of the contract.

We do not consider that this term implied that the applicant would be paid the 'going rate' of a junior sales negotiator. Rather we view it as an undertaking to pay a minimal amount of money for a short period of time.

(f) We consider that the above term of the contract would translate into a payment of the minimum wage of £3.20 per hour. The applicant worked for 18 days doing 8 hours per day. Accordingly the respondent should have paid the applicant £460.80. The respondent's failure to pay that amount was an unlawful deduction.

(g) The tribunal finds the applicant's claim for an unlawful deduction well-founded and orders the respondent to pay to the applicant £460.80.

(h) The tribunal does not consider the costs of the applicant's return to full-time education in Dublin following the termination of his contract with the respondent as being a recoverable loss as it was not within the reasonable contemplation as a not unlikely consequence of any breach of contract.

The applicant faces a further hurdle. Although the issue was not argued before the tribunal, there is considerable doubt as to whether the applicant was an employee of the respondent and thus able to present a claim to an industrial tribunal for breach of contract.

(i) Nor does the tribunal allow the applicant travel expenses as that was not part of the contract.

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: 22 April and 10 June 2002, Belfast

Date decision recorded in register and issued to parties: