Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 82/04

CLAIMANT: Stephen Lowry

RESPONDENT: Irish Fertiliser Industries Limited (in liquidation)

DECISION

The unanimous decision of the tribunal is that the claim in so far as it relates to unpaid wages is in time, the complaint is well founded and the tribunal awards the sum £184.20.

The claim in so far as it relates to payment in respect of pension contributions is in time but is not well founded and so is dismissed.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Members: Mr Grant

Mr Fields

Appearances

CLAIMANT: The claimant appeared in person representing himself.

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

The Claim

The claimant complains of unlawful deductions from wages contrary to the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order). The deductions complained of include a sum in respect of an unpaid wage increase and a further sum in respect of pension contributions. In the alternative the claimant complains of breach of contract in respect of these payments relying on the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. The respondent denies both claims and asserts that this complaint in it's entirely is out of time.

The Issues

1. Have these claims been presented within the relevant time limits as prescribed by the 1996 Order and The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 respectively. If not should time be extended on the grounds that it was not reasonably practicable for them to be presented within the prescribed time limits.
2. If the first issue is determined in the affirmative do the payments claimed amount to unlawful deductions for the purposes of the 1996 Order and if so what amount of money if any is due to the claimant.
3. In the alternative can the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 be relied upon in respect of these claims and if so what amount of money if any is due to the claimant.

Sources of Evidence

The tribunal considered the originating application, the notice of appearance, written representations lodged by the respondent, documents handed in by the claimant and the oral testimony of the claimant and of Mr Holland on behalf of the claimant.

Findings of fact

4. The claimant was employed by Irish Fertiliser Industries Limited as an engineering craftsman. His employment terminated by reason of redundancy on 30 September 2003.
5. In or around November 2002 Irish Fertilisers Industries Limited went into liquidation. The claimant was one of a small number of employees retained by the liquidator (JWR Jackson) to continue working with the respondent during the winding up of the company.
6. The claimant was retained by the respondent on his existing terms and conditions of employment. This was reflected in minutes of a meeting with the liquidator held on 6 November 2002.
7. It was a term of the claimant's contract that he would be awarded a pay rise of 2.1% to be effective from 16 June 2003. This pay rise represented the implementation of the second phase of a pay rise which was negotiated during a meeting with the craft union on 23 May 2002, the first instalment having been paid with effect from 17 June 2002. The tribunal notes the minutes of the craft union meeting and find that the respondent was bound by this term of the claimant's employment.
8. The claimant's weekly pay prior to the pay rise was £585.00 gross. The agreed increase amounted to the sum of £12.28 weekly and the claimant claims the increase in respect of the period June 2003 to 30 September 2003. The last payment was due on 30 September 2003 and no payment has been received by the claimant.
9. Between June and November 2003 the claimant enquired on a number of occasions about his pay rise. His enquiries were directed to Mr Graham Ferguson who was acting for and on behalf of the liquidator. On each occasion the claimant was assured by Mr Ferguson that he (Mr Ferguson) would look into the matter and that the claimant would receive all monies due to him. The last enquiry was made in a letter written by the claimant to Mr Ferguson and dated 23 November 2003.
10. During his employment with Irish Fertiliser Industries Limited the claimant was a member of a contracted out pension scheme. The claimant was a trustee of the pension scheme and was aware from November 2002 that employer contributions were no longer being made into the scheme. From in or around this time the claimant was contracted back into the state pension scheme.
11. The claimant in his capacity as trustee of the pension scheme was present at a final meeting of trustees held in or around May 2003 for the purposes of formally winding up the scheme.
12. The claimant's complaint in so far as it relates to pension contributions arises from the claimant's assertion that he is entitled to payments to be included in his wages to reflect the fact that the employers contribution to the pension scheme ceased with effect from November 2002 resulting in a saving to the respondent.
13. The tribunal find no evidence of an agreement between the parties that such payments would be made. The claimant made numerous requests of Mr Ferguson as to the position and was assured on each occasion that he (Mr Ferguson) would look into it and that the claimant would receive all monies due to him. The matter was raised in the claimant's letter of 23 November 2003 to Mr Ferguson.
14. Following the lack of satisfactory response to the letter of 23 November 2003, these proceedings were lodged with the tribunal on 30 December 2003.

The Law regarding Jurisdiction

The time limits within which a complaint of unlawful deduction from wages must be lodged is prescribed by Article 55 of the 1996 Order.

Article 55(2) provides that in a case such as this, an industrial tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made.

Article 55(3) further provides that when a complaint is brought in respect of a series of deductions, the reference at 55(2) to the deduction is to the last deduction in the series.

The tribunal find that the date of payment for the purposes of these proceedings is 30 September 2003.

Article 55(4) provides that where it was not reasonably practicable for a complaint to be presented with the prescribed three month period, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

The industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 apply to these proceedings.

Regulation 2(7) provides:-

Where an act must or may be done within a certain number of days of or from an event, the date of that event shall not be included in the calculation. For example, a respondent receives a copy of an originating application on 1 October. He must present a written notice of appearance to the secretary within 21 days of receiving the copy. The last day for presentation of the notice is 22 October.

Decision regarding jurisdiction

The tribunal in considering the complaint dealt with the two aspects of it i.e. the claims in respect of the pay rise and the claim in respect of the pension contributions as separate issues.

In respect of the pay rise tribunal find that by applying the law as recited above and considering the case of Group 4 Nightspeed Ltd (appellants) v Gilbert (respondent) [1997] IRLR 398 the claim is in time. Time for this purpose began to run on 30 September 2003 and proceedings were lodged with the office of the tribunal on 30 December 2003.

Using the same reasoning the tribunal find that the claim in so far as it relates to pension contributions is also in time.

The Law applying to the substantive claims

Article 45 of the 1996 Order provides:-

(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 workers contract, or

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

Article 45(3) provides:-

Where the 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 workers wages on that occasion.

Having considered these provisions the tribunal find as follows:-

. That the amount due to the claimant in respect of the pay rise was for the purposes of these proceedings an amount properly payable to the claimant and so amounts to a deduction for the purposes of Article 45(3) of the 1992 Order. In reaching this conclusion, the tribunal rely on their finding, that the liquidator agreed to retain the claimant on his existing terms and conditions of employment, that the 2.1% pay increase due in June was part of those terms and conditions. In this regard the tribunal are mindful of the written record of the meeting with the craft union on 23 May 2002 produced by the claimant. The tribunal find however that in accordance with the record of that meeting, this pay increase to be operative from 16 June 2003 rather than from the beginning of June.

. Having so found the tribunal award the claimant the sum of £184.20 calculated as follows:-

15 weeks x £12.28 = £184.20.

. That the amount claimed in respect of pension contributions is not an amount properly payable to the claimant. The tribunal is not persuaded that there was an agreement between the parties that any such payment would be made. The tribunal acknowledge the belief held by the claimant that this amount should be paid and find it regrettable that greater efforts were not made to clarify the position for the claimant at an early date.

. In reaching this conclusion the tribunal have considered the written summary of the meeting with the liquidator on 16 November 2002 produced by the claimant and in particular the entry under the hearing Pension which reads as follows:-

"Unpaid contributions to fund, as defined appropriate by trustees, to be claimed as a PC (preferred creditor)".

The tribunal find that this does not represent an agreement to pay the claimant a sum to reflect the fact that employers contributions to the scheme ceased in November 2002.

Breach of Contract claim

Having found that the claimant has not suffered an unlawful deduction from wages under the 1996 Order in respect of the pension contributions, the tribunal moved to consider this aspect of the claim as a breach of contract relying on the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

The time limit within which such a claim must be lodged is prescribed by Article 7 and must be presented within three months beginning with the last day upon which the employee worked in the employment which has terminated. There is provision at Article 7(c) for time to be extended in terms identical to those referred to above at Article 55(4) of the Employment Rights (Northern Ireland) Order 1996.

The Tribunal find:

. The claim to be in time having been lodged within three months beginning on 30 September 2003.

. For reasons recited above and particularly by reason of the finding that there was no agreement between the parties than a sum would be paid to the claimant to reflect the fact that employer contributions to the pension fund ceased as and from November 2002 that there has not been a breach of contract on the part of the respondent.

The claim in so far as it relates to pension contributions is hereby dismissed.

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

Chairman:

Date and place of hearing: 23 January 2008, Belfast.

Date decision recorded in register and issued to parties: