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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGrath v Dams N.I. Limited [2010] NIIT 7102_09IT (19 January 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7102_09.html
Cite as: [2010] NIIT 7102_9IT, [2010] NIIT 7102_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 07102/09
CLAIMANT: Leah McGrath
RESPONDENT: Dams N.I. Limited
DECISION
The decision of the tribunal is that the respondent is hereby ordered to pay to the claimant the sum of £266.11 being a total sum of £190.08 in respect of unpaid wages together with an increase in the award of 40% in respect of the respondent’s failure to comply with the applicable statutory grievance procedure.
Constitution of Tribunal:
Chairman (Sitting Alone): Ms Turkington
Appearances:
The claimant appeared and represented herself at the hearing
The respondent did not appear at the hearing. The respondent had not lodged a response form.
The Claim
The claimant brought the following claim before the tribunal:-
1. A claim in respect of unpaid wages.
The Issues
The issues to be determined by the tribunal were:-
2. Whether the respondent failed to make payment to the claimant in respect of wages earned and, if so, the amount of such unpaid wages. Further, the tribunal had to determine whether the statutory grievance procedure was applicable in this case and, if so, whether the respondent was responsible for the non-completion of such procedure. Finally, the tribunal had to decide whether to order an increase in the award to the claimant.
Disposal of the claim in the absence of the respondent
3. The respondent did not appear at the hearing. The respondent had not lodged a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.
Sources of Evidence
4. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.
Facts of the Case
Having considered the claim form submitted by the claimant and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-
5. The claimant started her employment as a Telesales/Customer Services representative with the respondent on 19 July 2004. The claimant received a statement of main terms and conditions of employment which confirmed that her salary was initially £14,500 per annum and payment was to be made by credit transfer at monthly intervals. The claimant’s salary was later increased to £16,500 per annum.
6. The claimant worked 37.5 hours per week and her gross pay at the relevant time was £1375 per month and her net pay in June and July 2009 was £1109.22 per month. The claimant received pay slips.
7. On 4 August 2009, the claimant was asked to stay behind for a meeting. The respondent asked all staff to agree to a cut in pay. The respondent’s position was confirmed in a memo to all staff dated 5 August 2009. The respondent’s proposal was that all salaries below £19,999 should be decreased by 10%. Staff were asked to sign a copy of this memo to confirm whether or not they agreed to this cut in pay.
8. The claimant responded by an e-mail dated 11 August 2009 in which she put forward counter-proposals. These counter-proposals included a reduction in working hours or additional annual leave per month in view of the proposed reduction in pay. The claimant also proposed that the proposed cut in salary be reviewed after 6 months.
9. The respondent replied to the claimant by e-mail dated 13 August confirming that the claimant’s counter-proposals were rejected. The claimant then signed the memo dated 5 August 2009 and submitted the signed memo to the respondent to confirm that she did not agree to the proposed cut in salary.
10. By an e-mail dated 26 August, the respondent confirmed that the proposed cut in salary was agreed by all but 2 of the respondent’s staff. The respondent confirmed that it would implement the salary cut for all staff with effect from 1 August.
11. When the claimant received her pay slip for August 2009, her pay was reduced by 10% so that her net pay was £1014.28. Likewise, the claimant’s pay for September 2009 was similarly reduced.
12. The claimant submitted a written complaint to the respondent by an e-mail dated 28 August 2009. The claimant stated that her wages had been cut without her agreement and suggested that this constituted an unlawful deduction of wages. The claimant also stated that she was entitled to a hearing to discuss the matter at which she was entitled to be accompanied by a work colleague. A response was invited within 28 days. The claimant received no reply whatsoever to this complaint.
Statement of Law
13. By Article 45 of the Employment (Northern Ireland) Order 1996, an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction. A complete failure to pay wages on any occasion constitutes a deduction from wages.
14. The statutory grievance procedure set out in the Employment (Northern Ireland) Order 2003 is applicable in this case. The standard statutory grievance procedure requires the employee to put his complaint in writing to the employer and for the employer to invite the employee to a meeting to discuss the grievance and then to provide an appeal meeting.
15. Pursuant to Article 17 of The Employment (Northern Ireland) 2003 (“the 2003 Order”), where it appears to the tribunal that the non-completion of the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50%.
Conclusions
16. The tribunal concluded that the claimant had not agreed to any reduction in her wages and that she therefore suffered an unlawful deduction from her wages in August 2009 and September 2009. The total sum unlawfully deducted from the claimant’s wages is as follows:-
August 2009
Net pay properly payable £1109.22
Less pay actually received £1014.28
Amount unlawfully deducted = £94.94
September 2009
Net pay properly payable £1109.22
Less pay actually received £1014.08
Amount unlawfully deducted = £95.14
Total of unlawful deductions = £190.08
17. The total sum due to the claimant by the respondent is £190.08.
18. The tribunal determined that the standard statutory grievance procedure was applicable in this case. The respondent failed to convene a meeting with the claimant to discuss his grievance. Indeed, the respondent made no reply whatsoever to the claimant’s written complaint. Accordingly, the tribunal concluded that the respondent in this case was responsible for the non-completion of the applicable statutory grievance procedure.
19. The tribunal therefore proceeded to consider whether the award due to the claimant should be increased in accordance with Article 17 of the 2003 Order. The tribunal was satisfied that it was appropriate to order an increase in the award in this case. This was a case where the respondent provided no response whatsoever to the claimant’s written complaint, despite the claimant outlining the requirements of the statutory procedure. The respondent made no attempt whatsoever to comply with any of the steps of the statutory grievance procedure. The tribunal therefore considered it appropriate to order an increase of closer to 50% than 10%. Accordingly, the tribunal decided that the award to the claimant should be increased by 40%.
20. Therefore the total award to the claimant is as follows:-
£190.08 + (40% of £190.08) = £266.11.
21. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 7 December 2009, Belfast.
Date decision recorded in register and issued to parties: