Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 1807_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1807/10

CLAIMANT: Gearoid Miceal Mag-Uaid

RESPONDENT: 1. Duanne Holden
2. Whitehorse Security MGT

DECISION

The unanimous decision of the tribunal is to order the respondent to pay the claimant the sum of £154.00 for unlawful deduction of wages, £392.00 in respect of holiday pay and to dismiss the remaining claims.

Constitution of Tribunal:

Chairman: Mr Uel Crothers

Members: Mr Robert Hanna

Mr James Smyth

Appearances:

The claimant was represented by Mr McKinney of SIPTU.

The respondent did not enter a response and did not appear at the hearing.

The Claim

1. (i) The claimant claims are for unlawful deduction of wages, holiday pay, one week’s notice pay, the right to receive an itemised pay statement, and unfair dismissal (Trade Union membership or activities), having abandoned during the hearing his earlier complaint of detriment on grounds related to Union membership or activities.

(ii) The title of the respondent is amended to that shown above.

Issues

2. The issue before the tribunal was as to whether the claimant’s claims were in time and, if so, whether he was entitled to a payment in respect of same.

Sources of Evidence

3. The claimant gave evidence and presented documentation to the tribunal in the course of the hearing.

Finds of Fact

4. The tribunal, having considered the evidence insofar as same related to the issue before it, made the following findings of fact on the balance of probabilities:-

(1) The claimant was employed by the respondent from a date in September 2009 until the effective date of termination of his employment on 12 April 2010. He presented his claim to the tribunal on 22 July 2010. On 12 April 2010 he raised a grievance in relation to his hourly rate being reduced. In further correspondence of 13 June 2010 to the respondent, he referred to the respondent’s refusal to pay him his “last proper wages” and raised an issue relating to Trade Union membership which, the claimant contended, was a relevant issue from a date in November 2009 and was raised specifically on

9 and 12 April 2010. The claimant who was a Trade Union member indicated to Mr Holden on 9 and 12 April 2010 that he was going to involve the Union in certain matters. His case was that the fact he had made use or proposed to make use of Trade Union services at an appropriate time was the reason or principle reason for his dismissal. The tribunal accepts, in accordance with the claimant’s correspondence to Mr Holden on 12 April 2010, that he had not been provided with proper payslips. The claimant had also raised the issue of holiday pay in both his correspondence of 12 April 2010 and 13 June 2010 to Mr Holden.

The Law

5. (i) The provisions relating to itemised pay statements are contained in Articles 40-44 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”). The time limits in respect of any such reference to a Tribunal are contained in Article 43(4) of the Order. Breach of contract claims are governed by the Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994. This Order specifies that an industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those period is applicable, within such further period as the tribunal considers reasonable. There are similar provisions in relation to the right to an itemised pay statement. Furthermore, where an employee presents a claim to the tribunal after the expiry of the normal time limit for presenting the complaint, but has sent a written grievance to the employer within that normal time limit, time is extended for a further period of three months for the presentation of the claim to the tribunal.

Submissions

6. The claimant and his representative were afforded considerable time to consult with the Labour Relations Agency. Mr McKinney made brief oral submissions to the tribunal.

Conclusions

7. The tribunal having considered the relevant evidence together with relevant submissions, and having applied the principles of law to the findings of fact, concludes as follows:-

(i) The respondent is ordered to pay the claimant the sum of £14.00 in relation to 56 hours deduction in the hourly rate from £6.25 to £6.00 together with his final week’s pay of £140.00. In addition, the respondent is ordered to pay the sum of £392.00 in respect of 14 days holiday pay.

(ii) The tribunal is satisfied that the claims in relation to itemised pay statements and breach of contract (notice pay) are out of time as it was reasonably practicable for these claims to have been presented to the Tribunal before the end of the period of three months.

(iii) The claim of unfair dismissal under Article 136 of the Order does not require a grievance and is out of time in accordance with the provisions of Article 145 of the Order. The tribunal is satisfied, on the evidence, that it was reasonably practicable for this claim to have been presented to the tribunal before the end of the period of three months.

(iv) The claims relating to holiday pay, and other unlawful deductions from wages are therefore upheld, and the remaining claims are dismissed.

(v) The tribunal does not consider the claimant’s reference to Articles 12-14 of the Employment Relations (Northern Ireland) Order 1999 to be relevant.

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

Chairman:

Date and place of hearing: 16 November 2010, Belfast.

Date decision recorded in register and issued to parties:

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