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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sterrett v Kaizen Recruitment NI Ltd [2010] NIIT 07302_09IT (03 February 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/07302_09IT.html
Cite as: [2010] NIIT 7302_9IT, [2010] NIIT 07302_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 07302/09
CLAIMANT: Anne Sterrett
RESPONDENT: Kaizen Recruitment NI Ltd
DECISION
The decision of the tribunal is that the respondent shall pay the claimant £2,407.68 in respect of salary, expenses, commission and holiday pay due to her on termination of her employment.
Constitution of Tribunal:
Chairman (Sitting Alone): Ms Bell
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented.
The claimant complained in her claim that she had not been paid salary, commission, expenses and holiday entitlement due to her following termination of her employment with the respondent on 18 September 2009.
No response was received from the respondent.
ISSUES
1. Has the respondent in breach of its contract of employment with the claimant failed to pay her salary, expenses, commission and holiday pay due to her on termination of her employment?
EVIDENCE
2. The tribunal considered the claim, documentation provided by the claimant and heard oral evidence from the claimant.
FINDINGS OF FACT
3. The claimant was employed by the respondent from 7 February 2008 until 18 September 2009, initially as a recruitment consultant and later as general manager. On commencement the claimant was given a contract of employment but returned it unsigned to the respondent with queries she had regarding some of its terms, she did not receive it back.
4. Following her promotion to general manager new terms of employment were agreed between the claimant and the respondent and a written contract of employment was promised but never received by the claimant.
5. Prior to resigning from her employment with the respondent the claimant received each month pay of £1,666.67 gross and a payment of £283.33 towards the expense of her working from home totalling £1,593.70 net. The respondent also paid car insurance held in the claimant’s name for her company car.
In addition the claimant received monthly commission calculated at 10% of recruitment fees billed in the previous month to the claimant’s clients in respect of workers recruited by her for them. Where workers were recruited on a permanent basis the recruitment fee was a percentage based on the workers’ agreed salary. Where workers were recruited on a temporary basis an hourly recruitment fee was charged to the client for hours worked by the temporary worker. Temporary worker’s completed a timesheet at the end of each week for the claimant which she then passed to the respondent’s accountant to process payment of the workers’ wages and bill the hours worked to the client.
6. For July/August 2009 the claimant passed to the respondent’s accountant time sheets for recruited temporary workers who worked for three clients as follows:-
For the first client, 1,000 hours at an agreed recruitment fee of £1.50 per hour, on which the claimant’s expected 10% commission of £150.
For the second client, 40 hours at an agreed recruitment fee of £0.87 and 40 hours at an agreed recruitment fee of £1.20 per hour on which the claimant expected 10% commission of £34.50.
For the third client, 110 hours at an agreed recruitment fee of £1.00 per hour, on which the claimant expected 10% commission of £11.
7. For August/September 2009 the claimant passed to the respondent’s accountant time sheets for recruited temporary workers for three clients who worked as follows:-
For the first client, 500 hours at an agreed recruitment fee of £1.50 per hour on which the claimant expected 10% commission of £75.
For the second client, 40 hours at an agreed recruitment fee of £0.87 per hour and 40 hours at an agreed recruitment fee of £1.20 on which the claimant expected 10% commission of £34.50.
For the third client, 110 hours at an agreed recruitment fee of £1.00 per hour on which the claimant expected 10% commission of £11.
8. The claimant recruited one permanent employee for a client in September 2009 for which the client was charged a recruitment fee of £750 and on which the claimant expected commission of £75.
9. The claimant tendered her resignation to the respondent on 4 September 2009 and at its request worked notice until 18 September 2009.
10. The claimant expected a final payment from the respondent on or around 25 September 2009 of outstanding salary, commission, expenses and holiday pay entitlement but did not receive any payment.
11. On insuring a new car following termination of her employment, the claimant was charged a premium for September 2009 of £46.63 which the respondent had failed to pay in respect of her company car.
12. Despite requests by the claimant to the respondent for payment of monies outstanding to her no payment has been made.
13. Under the contractual terms agreed between the claimant and respondent, the claimant was to receive 25 days holidays per year in addition to statutory holidays, plus one extra day holiday for each year worked up to a maximum of 30 days. The claimant’s holiday year ran from 1 January – 31 December each year. In the 2009 holiday year the claimant had taken 5½ days holidays.
THE LAW
14. A claimant may bring a claim before an Industrial Tribunals for the recovery of damages arising from breach of contract under The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.
APPLYING THE LAW TO THE FACTS FOUND
15. The tribunal is satisfied based on the claimant’s undisputed evidence that the respondent has breached its contract of employment with her in failing to pay the claimant salary due from 1 – 18 September 2009, car insurance for September 2009, commission based on billing for workers recruited for July/August 2009 and August/September 2009, and holiday leave accrued due but not taken on termination of her employment.
CONCLUSION
16. The respondent shall pay the claimant £2,407.68 in respect of unpaid salary, expenses, commission and holiday pay made up as follows:-
Unpaid Salary 1 – 18 September 2009
£1,593.07 x 14 days worked
22 working days in month = £1,013.77
Expenses
Car insurance for September 2009 = £46.63
Unpaid Commission
As per paragraphs 6, 7 and 8
(£150 + £34.50 + £11 + £75 + £34.50 + £11 + £75) = £391.00
Holiday Entitlement
262 x 26 days due per annum = 18.66 days due
365
Less 5 days holidays taken -5_____
Balance due 13 days
13 days x £73.56 per day = £956.28
17. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 8 January 2010, Belfast.
Date decision recorded in register and issued to parties: