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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wilson v Department of Agriculture & Rural Development [2007] NIIT 244_06 (13 March 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/244_06.html
Cite as: [2007] NIIT 244_06, [2007] NIIT 244_6
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THE INDUSTRIAL TRIBUNALS
CASE REF: 244/06
CLAIMANT: Gaynor Elizabeth Wilson
RESPONDENT: Department of Agriculture & Rural Development
DECISION
The decision of the tribunal is that the claimant did not suffer any unauthorised deduction from her wages and the claim is dismissed.
Constitution of Tribunal:
Chairman: Mr Cross (sitting alone)
The claimant appeared in person and represented herself.
The respondent was represented by Mr M Wolfe (Barrister-at-Law) instructed by the Departmental Solicitors’ Office
Evidence
1 The tribunal heard evidence from the claimant and from Mr Campton and Mr Dolan for the respondent.
The Issues
2 The claimant had been suspended without pay from her employment in the Food Science Division of the respondent’s Science Service, where she was employed as a Scientific Officer. The suspension was as a result of the respondent being informed that the claimant had been charged with serious offences relating to the misuse of chemical substances. The suspension lasted from 5 December 2003 to 12 October 2006, when the claimant was summarily dismissed for gross misconduct, following a disciplinary meeting after the claimant had been sentenced to three years probation, on a plea of guilty to various offences at Lisburn Magistrates’ Court on 16 June 2006. The claimant claimed that her suspension should have been with pay and this was the issue before this tribunal.
Findings of Fact
3 The claimant, who was facing serious criminal charges, one of which involved chemicals that were allegedly discovered in her car and could be linked to her place of employment, was suspended from her employment with the respondent, on 5 December 2003, without pay, pending the outcome of the criminal trial.
4 It was not until 16 June 2006 that the criminal charges were disposed of, when the claimant pleaded guilty to certain charges of arson and criminal damage. As a result of this conviction and because the claimant removed certain chemicals from the respondent’s store without permission and for not revealing to the respondent that she had other criminal convictions, which were revealed during the trial, the claimant was summarily dismissed by the respondent.
5 On a number of occasions the respondent endeavoured to make contact with the claimant to ascertain the progress of the police investigation. The claimant failed to answer the four letters that were sent to her through her solicitors and the solicitors failed to return a number of telephone calls made to them by the officers of the respondent. On 20 October 2004 the solicitors who had acted for the claimant wrote to the respondent to say that they no longer acted for her. Mr Campton on behalf of the respondent took up the attempt to contact the claimant by letter but again without success.
6 The claimant was suspended under the terms of the Northern Ireland Civil Service Pay and Conditions of Service Code which formed part of the claimant’s contract of employment. Paragraph 1084 of that code states, inter alia:-
“an individual may at any time be suspended from duty if, in the opinion of the person exercising disciplinary powers, that course is a necessary precaution in the public interest pending the outcome of criminal or disciplinary investigations or proceedings, and no alternative course eg transfer to other duties is appropriate. ……………………Pay in respect of any period of suspension may be withheld wholly or in part so long as such suspension continues, if the person exercising disciplinary powers so decides.”
7 In the light of the seriousness of the charges laid against the claimant and in light of a prior unspent warning issued to the claimant by the respondent, Mr Campton decided that he must suspend the claimant and decided that this should be without pay. He did this in the knowledge that if the charges were dismissed the suspended pay could be made up to the claimant under the above mentioned Paragraph 1084. Mr Campton was also aware of a provision in Paragraph 1084 which required him to keep the suspension under regular review.
8 Under a reorganisation of the scientific divisions of the respondent, on the 1st April 2006 the functions of the Science Service of the respondent were vested in Agri-Foods and Biosciences Institute (AFBI). The claimant’s contract of employment was taken over by AFBI and Mr Campton handed over his responsibilities with regard to it to Mr Dolan.
9 On 12 October 2006, after the conclusion of the disciplinary process the claimant was dismissed with immediate effect. She then commenced these tribunal proceedings claiming unauthorised deduction from wages.
The Law
10 The relevant portion of Article 45 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states:-
“45 (1) 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”
Decision of the tribunal
11 The tribunal hold that the decision of the respondent, made through its appropriate officer Mr Campton and subsequently affirmed by Mr Dolan, to suspend the claimant without pay was a decision which was authorised by the claimant’s contract of employment. The seriousness of the charges against the claimant justified, in the view of the tribunal, the decision to suspend without pay. The respondent endeavoured to keep the decision under review but the claimant failed to answer the letters sent to her by Mr Campton. Due to the lengthy police enquires, that had to be processed before the claimant could face trial, the suspension was of a long duration. However the tribunal hold that the respondent was correct in not progressing the disciplinary charges against the claimant until the criminal charges had been dealt with by the court.
12 In these circumstances the decision to continue with the unpaid suspension until after the criminal case was concluded was within the terms of the contract of employment and the decision not to pay the claimant’s salary for that period does not constitute an unlawful deduction from wages as defined in the Order. The claimant’s claim is dismissed.
Chairman:
Date and place of hearing: 9 February 2007, Belfast.
Date decision recorded in register and issued to parties: