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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Fitzpatrick v Gerald Murphy t/a Vader Cleani... [2010] NIIT 01198_10IT (27 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/01198_10IT.html
Cite as: [2010] NIIT 01198_10IT, [2010] NIIT 1198_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1198/10
CLAIMANT: Thomas Fitzpatrick
RESPONDENT: Gerard Murphy t/a Vader Cleaning Services
DECISION
It is the decision of the tribunal that the respondent in breach of the claimant’s contract of employment has failed to pay the claimant wages, the claimant has suffered an unauthorised deduction from his wages and the respondent has failed to provide the claimant itemised pay statements for the period 8 February 2010 to 4 March 2010. The respondent shall pay the claimant £386.24 in respect of unpaid wages.
Constitution of Tribunal:
Chairman (Sitting Alone): Ms Bell
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented.
1. The claimant in his claim complained that he was not paid wages for 25 hours work done in the period 7 December 2010 to 11 December 2010, 46 hours work done in the period 22 February 2010 to 4 March 2010, that he was not provided with pay statements for the period 8 February 2010 to 4 March 2010 or his PAYE reference.
2. No response has been entered by the respondent.
3. The claimant confirmed at hearing he was employed by Gerard Murphy t/a Vader Services, the title of the proceedings are accordingly amended from ‘Mr Gerard Murphy, Vader Cleaning Services’ to ‘Gerard Murphy t/a Vader Cleaning Services’.
4. The claimant confirmed at hearing that he sought only an order in respect of unpaid wages and was not seeking a determination of what particulars ought to have been included or referred to in itemised pay statements not provided.
Evidence
5. The tribunal considered the claim, documentation handed in by the claimant and heard oral evidence from the claimant.
Issues for the tribunal
6. The issues for the tribunal were as follows:-
(i) Has the respondent in breach of contract failed to pay the claimant wages and/or has the claimant suffered an unauthorised deduction from wages?
(ii) Did the respondent fail to provide the claimant itemised pay statements?
Findings of Fact
7. The claimant was employed by the respondent as a window cleaner between 7 December 2009 and 4 March 2010. The claimant received gross pay of £5.80 per hour, being £5.44 net. The claimant’s weekly hours varied.
8. On commencement of his employment the respondent instructed the claimant to keep a record of hours worked by him in a diary for pay purposes, as the respondent was not always with the claimant, which the claimant did.
9. The claimant carried out 25 hours work for the respondent in the period
7 December 2009 to 11 December 2009, and 46 hours in the period
22 February 2010 to 4 March 2010 but has not received payment from the respondent in respect thereof.
10. The claimant did not receive itemised pay statements from the respondent for the period 8 February 2010 to 4 March 2010.
11. The claimant’s employment ended by mutual agreement on 4 March 2010.
12. The claimant approached the respondent for payment of outstanding wages on 5 and 9 March 2010 but the respondent indicated that he did not have the money to pay the claimant at that time. The claimant wrote to the respondent on 15 March 2010 in respect of the matter and subsequently presented his claim to the Office of Industrial Tribunals on 29 April 2010.
The Law
13. A breach of contract claim arising or outstanding on termination of an employee’s employment may be brought before an Industrial Tribunal under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.
14. Under Article 45 of The Employment Rights (Northern Ireland) Order 1996 an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of a worker’s contract, or the worker has previously signified in writing his consent or agreement to the making of the deduction.
15. Under Article 40 of the 1996 Order an employee has the right to be given by his employer at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement including certain particulars as set out therein.
16. Under Article 43(1) of the 1996 Order, where an employer does not give an employee a statement as required by Article 40, the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned.
17. Under Article 44 (3)(a) of the 1996 Order, where on a reference under Article 43 an industrial tribunal finds that an employer has failed to give an employee any pay statement in accordance with Article 40 the tribunal shall make a declaration to that effect.
Applying the Law to the facts found
18. The tribunal is satisfied on a balance of probabilities based on the claimant’s undisputed evidence that the respondent has in breach of the claimant’s contract of employment, failed to pay the claimant for 71 hours work in total done in the periods 7 December 2010 to 11 December 2010 and 22 February 2010 to 4 March 2010, that the claimant has suffered a loss of 71 hours at £5.44 net per hour, being £386.24 and that the claimant has also suffered an unauthorized deduction from wages in respect thereof. The tribunal orders the respondent to pay the claimant £386.24 in respect of unpaid wages.
19. The tribunal finds that the respondent has failed to provide the claimant written itemised pay statements for the period 8 February 2010 to 4 March 2010.
Conclusion
20. It is the decision of the tribunal that the respondent, in breach of the claimant’s contract of employment, failed to pay him outstanding wages, the claimant has suffered an unauthorised deduction from his wages and the respondent failed to provide the claimant itemised pay statements for the period
8 February 2010 to 4 March 2010. The respondent shall pay the claimant £386.24 in respect of unpaid wages.
21. This is a relevant decision for the purposes of the Industrial tribunals (Interest) Order (Northern Ireland) 1996.
Chairman:
Date and place of hearing: 23 August 2010, Belfast.
Date decision recorded in register and issued to parties: