Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

   CASE REF:          6083/09

 

 

CLAIMANT:                      Ian Harrison

 

 

RESPONDENTS:              1. Mr JD’s New Titanic Restaurant     

                                        2. Stewart McAleese

                                        3. Kate McAleese

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant is entitled to a declaration that the respondents failed to provide him with itemised pay statements in accordance with Article 40 of the Employment Rights (Northern Ireland) Order 1996. The claimant’s claims in respect of unfair (constructive) dismissal, unlawful deduction of wages and breach of contract are dismissed. 

 

 

 

Constitution of Tribunal: 

 

Chairman (sitting alone): Mr Wimpress

 

                             

 

 

Appearances:

 

The claimant was unrepresented and appeared on his own behalf.

 

The respondents were represented by Mr Teddy Martin.

 

 

 

The Claim and the Response

 

1.       The claim arises from the claimant’s employment with the respondent from  

18 August 2008 to 21 March 2009.  The correct title of the first named respondent is given in the response form as “Mr JD’s New Titanic Restaurant” and I direct that the title to the proceedings be amended accordingly.

 

2.       The claimant’s claims are set out in his undated claim form which was received in the tribunal office on 23 June 2009.   In his claim form the claimant made claims in respect of unfair (constructive) dismissal, failure to pay wages/unlawful deduction of wages, failure to provide itemised pay statements and breach of contract.  The alleged breach of contract comprised of claims in respect of holiday pay, notice pay and tips.  Claims in respect of bullying and assault were rejected at the pre-acceptance stage of the proceedings. In the response, the respondents denied each of the claimant’s claims.  In relation to the claim in respect of unfair (constructive) dismissal, the respondent contended that the claimant had not been employed by the respondent for the requisite period of service, one year, in order to qualify to bring a claim of this nature.  The respondents conceded in their response that the claimant was not given an itemised pay statement every week.  It was accepted by the claimant at the outset of the hearing that he had not served the necessary period of continuous employment in order to bring a claim of unfair (constructive) dismissal and this aspect of the claim is therefore dismissed.

 

 

Sources of Evidence

 

3.       The tribunal was provided with a bundle of documents by the respondents’ representative and heard evidence from the claimant and from Mr Stewart McAleese and Mrs Kathleen McAleese.

 

 

The Issues

 

4.        (1)     Did the respondent fail to pay wages to the claimant or make unlawful deductions from the claimant’s wages?

 

(2)      Did the respondent act in breach of contract in respect of holiday pay, notice    pay and tips?

 

(3)      What was the extent of the respondent’s failure to provide itemised pay statements to the claimant and what remedy is the claimant entitled to in this respect?

 

 

The Facts

 

5.       The claimant was employed by the respondents’ premises to prepare food and various other associated duties. The claimant described himself in the claim form and in his evidence to the tribunal as a “prep chef”.  This was disputed by the respondents and I am satisfied that the claimant did not enjoy a formal job title of this nature.  Nothing turns however on this aspect of the claimant’s job description.  The claimant was paid at a rate of £5.73 per hour which equates to a weekly wage of £91.68.

 

6.       The claim in respect of the alleged failure to pay wages/unlawful deduction of wages arises from certain payments made to the claimant on termination of his employment.  The claimant gave notice that he was leaving his employment on

15 March 2009.  Mr and Mrs McAleese made up the claimant’s final payment of wages of £183.96 in advance of Saturday 21 March 2009 which comprised the claimant’s final week’s pay plus a lying week (£91.98 x 2). The claimant attended at the respondents’ premises on Saturday 21 March 2009 to collect his pay.  Mr McAleese handed the claimant an envelope containing his wages and final pay slip. Mr McAleese said that he should be deducting three and a half hours pay because the claimant was leaving early.  The claimant took this as meaning that three and a half hours pay had in fact been deducted and this formed the basis of his claim of failure to pay or make unlawful deductions from his wages.  The claimant was unable to say with any degree of precision what he actually received from Mr McAleese.  He claimed that he received £130.00 or thereabouts.  He did not count the money at the time and did not raise any complaint about it until

20 May 2009 when he sent a handwritten letter of complaint to the respondents.  It would appear that the claimant merely inferred from Mr McAleese’s remarks that he had not been paid his full two weeks wages.  Mr McAleese’s evidence was that the full amount was made up by the respondent’s bookkeeper in advance and that he paid the claimant the full amount without any deductions.

 

7.       The claimant attended at the respondents’ premises on 24 March 2009 and was given £45.84 in respect of accrued holiday pay together with his P45.  The claimant’s written contract of employment provided that he was entitled to six days paid holiday, including statutory holidays, in 2008.  The claimant accepted that he did not work on the August Bank holiday, Christmas Day or Boxing Day.  The claimant also took paid leave during 2008.  The claimant had no contractual entitlement to carry over leave.  According to Mr McAleese’s evidence and the calculations provided to the tribunal the claimant was not owed any holiday pay for 2009 and therefore he was not entitled to £45.84 for accrued holiday pay.  The respondents did not seek to recover the alleged overpayment.

 

8.       The claimant contended that he was entitled to a full share of the accumulated tips on the termination of his employment. The respondents’ evidence was that the claimant was not entitled to a full share of the tips because he was primarily engaged in the preparation of food rather than serving it at the front of the shop.  It was accepted by the respondents that the claimant did work on the front of the shop on occasions. In particular, the claimant worked on the front of the house to cover sick leave, in October 2008 when Mr and Mrs McAleese were on holiday and during a Christmas party.  In recognition of this work the claimant was given £50.00 as a share of the accumulated tips at Christmas.  The claimant was also given £5.00 as his share of the tips collected at the party.  Mrs McAleese gave evidence that the claimant in common with all other staff also received a £10.00 Christmas bonus and a personal gift together with a share of tins of biscuits and sweets brought in by customers.  The claimant denied receiving a bonus and alleged that it was withheld because one member of staff failed to turn up for her shift.  The claimant made no complaint about this in a handwritten letter of complaint sent to the respondents on 20 May 2009 and raised it for the first time when he was giving his evidence to the tribunal.  While it is not directly relevant to the matters raised in the claimant’s claim, I prefer Mrs McAleese’s evidence on this point.

 

9.               The claimant maintained that he only received one pay slip throughout his period of employment.  The respondent’s evidence was that the claimant received a pay slip at the start of his employment and sometime later was given a batch of fourteen pay slips. The claimant was also given an itemised pay slip with his final wages.

 

 

 

 

 

The Law

 

10.     Unlawful Deduction from Wages

 

Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides as follows:

 

 "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".

 

Article 45(3) of the 1996 Order provides as follows:

 

"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". 

 

11.     Breach of Contract

 

          The Industrial Tribunal Extension of Jurisdiction (Northern Ireland) Order 1994 confers jurisdiction on industrial tribunals to hear claims for breach of contract that either arise or are outstanding on the termination of a contract of employment. 

 

12.     Itemised Pay Statement

 

Article 40 (1) of the 1996 Order provides that an employee has the right to be given by his employer ‘a written itemised pay statement’.

 

          Article 40 (2) states:

 

“The statement shall contain particulars of -

 

(a)  the gross amount of the wages or salary,

 

(b)  the amounts of any variable, and …fixed deductions from that gross amount and the purposes for which they are made,

 

(c)  the net amount of wages or salary payable…”

 

13.     The enforcement of Article 40 is dealt with in Articles 43 and 44 of the Order which is by way of reference to an industrial tribunal which may make a declaration under Article 44(3)(a) that the employer has failed to give the employee any pay statement in accordance with Article 40. 

 

 

 

 

 

Submissions

 

14.     The claimant made brief oral submissions on the facts.  Mr Martin made detailed oral submissions on the facts and on the relevant law.

 

 

Conclusions

 

15.     Failure to pay wages/unlawful deduction of wages

 

I am satisfied on the basis of Mr and Mrs McAleese’s convincing evidence as set against the claimant’s vague account that the claimant was paid the full amount and that his complaint in this regard is unfounded.  Furthermore, the claimant did not raise any complaint of this nature until 20 May 2009, some two months after his employment finished and even then did not specify any amount in this letter or in his claim form. If a deduction had been made in relation to three and a half hours work, it would have been of a much smaller amount than the claimant complained of given that his hourly rate of pay was £5.73.

 

16.     Breach of Contract

 

          Holiday Pay

 

It is clear that the claimant has no valid claim in respect of holiday pay and that if anything he was paid money to which he had no entitlement.

 

Notice Pay

 

The claim form does not contain an express claim in respect of notice pay and it is clear from the evidence that having given notice that he was resigning, the claimant in fact worked for a further week and therefore no claim in respect of notice pay arises.

 

Tips

 

It is clear from the evidence that staff who were permanently engaged in the front of the shop were entitled to a full share of the tips and that the claimant who only worked in the front of the shop occasionally was not so entitled.  I am therefore satisfied that the claimant’s claim to a larger share of the tips has not been made out.

 

17.     Itemised Pay Statement

 

The respondents accepted that they did not provide the claimant with pay slips on a regular basis and in these circumstances it is clear that the respondents did not comply with the requirement contained in Article 40 of the 1996 Order to provide an itemised pay statement either before or with an employee’s wages.  The claimant is therefore entitled to a declaration to this effect.  

 

 

 

 

Costs

 

18.     Mr Martin made an application for costs at the conclusion of the hearing.  It is clear from his submissions that Mr and Mrs McAleese had been deeply upset by some of the allegations made by the claimant.  The tribunal did not need to enquire deeply into these allegations as they were primarily a feature of the claim of unfair (constructive) dismissal which did not proceed due to the fact that the claimant did not have sufficient qualifying service.  Under Rule 40(2) and (3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 the tribunal may award costs where a party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived if it considers it appropriate to do so.  In circumstances where the tribunal has found in favour of the claimant in respect of a breach of Article 40 of the Employment Rights (Northern Ireland) Order 1996 it would not be appropriate to make an order for costs in favour of the respondents.

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:         17 November 2009, Belfast.

 

 

Date decision recorded in register and issued to parties: