Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

Case Ref: 323/03

CLAIMANT: Christine Mary Service

RESPONDENTS: 1. Roberta Weir t/a R G Homecare Products

2. R G Homecare Products

DECISION

The decision of the tribunal is that the correct title of the first named respondent is as set out above and the second named respondent is dismissed from the proceedings. Further that the claimant's complaint is dismissed as the tribunal was not satisfied, on the balance of probabilities, that the respondent had made a deduction from the claimant's wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman: Ms M Sheehan

Appearances:

The claimant did not attend and was not represented.

The respondent did not attend and was not represented.

1. There was no appearance by or on behalf of either of the parties when the tribunal called the matter. Although the tribunal did not expressly reserve the decision, there being no parties present at hearing, the tribunal did not consider it appropriate or consistent with the overriding objective to deal with the case justly, to issue an oral decision where neither party was present.
2. The tribunal perused the file held by the Office of the Industrial Tribunals and Fair Employment Tribunal to satisfy itself that both parties had been notified of the hearing. The notice of hearing had been sent on the 11 July 2005, to the solicitors on record for the claimant and to the respondent at the new address provided by the claimant's representative by letter dated 5 July 2005. The correspondence had not been returned as "unable to serve" so the tribunal, acting in accordance with the overriding objective set out in regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, determined it appropriate to dispose of the proceedings in the absence of either party in light of the information and evidence before it as required by Rule 27 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
3. The claimant alleged in her originating application that there had been non-payment of wages for the last six days of her employment with the respondent. She alleged that the weekly wages due to her under her contract was £210 gross and net. The respondent in her Notice of Appearance denied that any wages were due and owing. The respondent alleged that the contractual terms of employment were that the claimant would be employed on a 40-hour week at the national minimum wage appropriate to her age. Further the respondent alleged the last payment of wages had been tendered to the claimant in cash and not as a cheque as alleged by the claimant.
4. The issue for the tribunal was to determine whether there had been a breach of the claimant's right not to suffer an unauthorised deduction contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996. In reaching its decision on that issue the tribunal considered the originating application, the Notice of Appearance entered by the respondent, and the correspondence received by the Office of Industrial Tribunals and Fair Employment Tribunal.
5. The facts as found by the tribunal are that the claimant was employed by the respondent in October 2002 and left that employment in late November 2002. The claimant was 18 years of age at the time of commencing her employment. The respondent employed the claimant to work a 40-hour week at national minimum wages. There being such a discrepancy on the papers before the tribunal with regard to the wages alleged as due and owing, it would not have been difficult for either party to provide or submit to the tribunal the documentary evidence that would have supported the contentions made in their application and notice of appearance respectively. In the absence of such documentation the tribunal had to consider whether it could be satisfied on the balance of probabilities that there was monies due and owing to the claimant before it could determine whether there had been any unlawful deduction as alleged by the claimant.
6. The claimant alleged that she was paid a gross and net wage of £210 per week. The national minimum wage, at the time, an increase having occurred on the 1 October 2002, was £3.70 to those aged between 18 to 22 and £4.30 for those aged 22 years and over.

The tribunal found it difficult to understand the substantial discrepancy between the wages allegedly earned by the claimant and that allegedly paid by the respondent, given on the basis of a 40 hour week the weekly wages where the rate of pay was the national minimum wage, would appear to be £148 or £172. The tribunal could not be satisfied, in light of the information before it, on the balance of probabilities, that there were any monies due and owing as alleged by the claimant and therefore determined that the claimant's complaint be dismissed.

Chairman:

Date and place of hearing: 27 September 2005, Belfast.

Date decision recorded in register and issued to parties: