Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 431/05

CLAIMANT: Laszlo Szakalas

RESPONDENTS: 1. Lyons Transport Ltd (In Liquidation)

2. Mark Lyons

DECISION

The unanimous decision of the tribunal is that the first respondent Lyons Transport Ltd (In Liquidation) is ordered to pay to the claimant the total sum of £3,450 in respect of unpaid wages and damages for breach of contract. The second respondent Mark Lyons is dismissed from the proceedings.

Constitution of Tribunal:

Chairman: Ms Turkington

Members: Mr Crawford

Mr McAuley

Appearances:

The claimant appeared at the hearing and represented himself. The claimant was assisted by an interpreter, Mrs McDowell.

Neither respondent appeared nor was represented at the hearing.

The Claim

1. The claim was a claim for unpaid wages and/or damages for breach of contract.

The Correct Respondent

2. The Chairman raised an issue at the outset of the hearing in relation to the correct respondent in this case. The claimant confirmed that he was employed by the first respondent and that the second respondent was therefore not a proper respondent to this claim. Accordingly, the second respondent is dismissed from the proceedings.

The Issues

3. The issues to be determined by the tribunal were whether the first respondent was liable to the claimant in respect of unpaid wages and/or damages for breach of contract and, if so, the sum due to the claimant.

Sources of Evidence

4. The tribunal heard evidence from the claimant assisted by an interpreter and the tribunal was also referred to a number of documents.

Contentions of the Parties

5. The claimant contended that he had not been paid the agreed rate of pay by the first respondent company during his employment with the first respondent. The claimant also contended that the first respondent was in breach of an agreement to reimburse him in respect of any fines incurred in the course of his employment with the first respondent and paid by him. Both respondents in their notices of appearance contended that the claimant was employed by an employment agency based in Hungary.

Facts of the Case

Having heard the evidence given by the claimant at the hearing and having considered the documents referred to in evidence, the tribunal found the following relevant facts:-

6. The claimant was employed by the first respondent from 22 March 2004 to 26 November 2004 as a long-distance lorry driver.
7. The rate of pay agreed between the claimant and the second respondent, the managing director of the first respondent company, was 18 pence per mile.
8. According to the first respondent's own accounts as set out in the Driver Record for the claimant dated September/October 2004, the claimant should have been paid sums of £1,000, £600 and £1,000 respectively in respect of the distance he had driven during that period.
9. The said sums of £1,000, £600 and £1,000 respectively were not received by the claimant.
10. The second respondent on behalf of the first respondent had agreed that the first respondent would reimburse to the claimant any fines which he had to pay and were incurred in the course of his employment with the first respondent.
11. The claimant had to pay a total sum of £600 in fines at Stranraer Sheriff Court on 16 December 2004 and a further sum of £250 on another occasion. These fines were incurred in the course of the claimant's employment with the first respondent.
12. The first respondent did not reimburse the claimant in respect of these fines as had been agreed.

Statement of Law

13. The law in relation to unauthorised deductions from wages is set out in Part IV of the Employment Rights (Northern Ireland) Order 1996 ("the Order"). Article 45 of the Order states as follows:-

"45. — Right not to suffer unauthorised deductions

(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, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2)………………………

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion".

14. Article 55 of the Order is in the following terms:-

"Complaints to industrial tribunals

55. — (1) A worker may present a complaint to an industrial tribunal—

(a) that his employer has made a deduction from his wages in contravention of Article 45……………………..",

15. Article 59 of the Order sets out the definition of wages for these purposes:-

"Meaning of "wages" etc.

59. — (1) In this Part "wages", in relation to a worker, means any sums payable to the worker in connection with his employment, including—

(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, but excluding any payments within paragraph (2).

(2) Those payments are—

(a)…………………………

(b) any payment in respect of expenses incurred by the worker in carrying out his employment",

16. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 ("the 1994 Order") provides at Article 3 that proceedings might be brought before an Industrial Tribunal in respect of a claim of an employee for the recovery of damages or any other sum (save damages for personal injuries) where the claim arises or is outstanding on the termination of the employee's employment.

Conclusions

17. As set out at paragraph 9 above, the tribunal found as a fact that the claimant had not been paid sums of £1,000, £600 and £1,000 respectively. The tribunal was satisfied that these sums were properly due to the claimant under his contract of employment. Having considered Article 45 of the Order, the tribunal was satisfied that the failure to pay these sums constituted unauthorised deductions from the claimant's wages. Accordingly, the first respondent is ordered to pay to the claimant the sum of £2,600 in respect of the said unauthorised deductions.
18. As set out at paragraph 10 above, the tribunal found as a fact that the first respondent had agreed to reimburse to the claimant any sums he had to pay in respect of fines incurred in the course of his employment with the first respondent. The first respondent failed to reimburse the sums of £600 and £250 respectively which the claimant paid in respect of such fines. In view of Article 59(2) (b) of the Order, the tribunal concluded that this did not constitute an unauthorised deduction from the claimant's wages. However, the tribunal was satisfied that the first respondent was in breach of the claimant's contract of employment and that the tribunal had jurisdiction to deal with this issue under the 1994 Order. Accordingly, the first respondent is ordered to pay to the claimant the sum of £850 by way of damages for breach of contract.
19. The unanimous decision of the tribunal is that the first respondent is ordered to pay to the claimant the total sum of £3,450 in respect of unpaid wages and damages for breach of contract.
20. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) Order 1990.

Chairman:

Date and place of hearing: 18 April 2007, Belfast.

Date decision recorded in register and issued to parties: