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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Pawlicki v Treads Recycling Ltd [2011] NIIT 01850_11IT (16 November 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01850_11IT.html
Cite as: [2011] NIIT 01850_11IT, [2011] NIIT 1850_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1850/11
CLAIMANT: Andrzey Franciszek Pawlicki
RESPONDENT: Treads Recycling Ltd
DECISION
The decision of the tribunal is that:-
(i) the tribunal makes a declaration that the respondent has made unauthorised deductions from the wages of the claimant in contravention of Article 45 of the Employment Rights (Northern Ireland) Order 1996 and orders the respondent to pay to the claimant the sum of £163.56;
(ii) the respondent, having failed to give notice to the claimant to which he was entitled on termination of his employment, was in breach of the claimant’s contract of employment and the respondent is ordered to pay to the claimant the sum of £150;
(iii) the tribunal awards the further sum of £360.00, pursuant to Article 27(3) of the Employment (Northern Ireland) Order 2003, by reason of the breach by the respondent in its duty to give to the claimant a statement of employment particulars, as required by Article 33 of the Employment Rights (Northern Ireland) Order 1996; and
(iv) the total sum therefore ordered by the tribunal to be paid by the respondent to the claimant is £673.56 (£163.56 plus £150 plus £360).
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Appearances:
The claimant appeared in person and was not represented. He was assisted by the interpreter, Ms Marzena Czarnecka.
The respondent did not appear and was not represented.
Reasons
1.1 The claimant presented his claim to the tribunal on 12 August 2011. The Notice of Hearing in this matter was issued to the parties on 23 September 2011. On 20 October 2011, the respondent entered a response to the claimant’s claim, the time to do so having been extended by the tribunal; and the response was accepted by the tribunal by letter dated 27 October 2011. The respondent having failed to attend or to be represented at the hearing, I decided, pursuant to Rule 27 of the Industrial Tribunals Rules of Procedure, to dispose of the proceedings in the respondent’s absence, having first considered the response of the respondent and the documents attached thereto.
1.2 The claimant, in his claim form, made a claim that the respondent had made unauthorised deductions from his wages and/or failed to provide him with a statement of employment particulars and/or was in breach of his contract by failing to give him notice on termination of his employment.
2.1 The claimant, who gave evidence to the tribunal, had little or no English and/or understanding of English and required to give his evidence with the assistance of the interpreter. After hearing evidence from the claimant, whom I found to be, despite his difficulties of language, an impressive and truthful witness, I made the following findings of fact as set out in the following sub paragraphs.
2.2 The claimant worked for the respondent from 17 January 2011 to 13 May 2011 as a production operator/labourer. He was employed on a casual but very regular basis during the said period. Indeed the pattern of work was such that there was an almost continual repetition of offers of work made to the claimant by the respondent during the above period; and any gaps between any such offers, made by the respondent, were very limited and of small duration. All such offers of work made by the respondent to the claimant were always accepted by the claimant. He was keen to obtain all such work from the respondent, as he had no other work during the period. At all times the claimant personally carried out the work offered to him. There was no question of him delegating any such work to anybody else and/or him engaging a substitute to do the work.
In addition to the foregoing, the claimant produced, in evidence, a letter dated 22 April 2011, written by Mr G Latimer a director of the respondent on the respondent’s headed notepaper. It was written “to whom it may concern”, and was written by Mr Latimer for the purposes of the claimant clarifying to the Home Office his status under the Accession State Worker Registration Scheme. The letter stated, in particular, the claimant “has been employed by Treads Recycling Ltd since 17 January 2011 and also is still employed by the company”. When the claimant worked for the respondent, as set out above, he was paid, as agreed, an hourly rate, in accordance with the National Minimum Wage and was paid £5.93 per hour gross and £5.64 per hour net during the said period. At all times he worked under the supervision, directions and control of Mr Latimer, the Director. I am further satisfied that the respondent properly deducted from the claimant’s earnings, during the said period, National Insurance and/or Tax, under the PAYE system.
2.3 The claimant was never provided by the respondent, despite his requests for same, with a statement of employment particulars.
2.4 The claimant contended in evidence that he had worked in the week commencing 2 May 2011 to 7 May 2011 a total of 41 hours for the respondent; whereas the respondent contended in its response form that the claimant had only worked for 39 hours during that week. The respondent attached to its response form a time sheet for the period, which was not signed. Other time sheets produced by the respondent in his response form for other weeks were signed by Mr Latimer the Director. The claimant contended, in evidence, which I accept, that the system followed by the respondent was that the claimant had to agree the time sheets with the respondent, which would be signed off to show agreement. As set out above, this did not occur in relation to the time sheet produced by the respondent for the week commencing 2 May 2011. The claimant further stated in evidence that he had a brown book, which was kept in the area where he sat in the canteen, in which he entered every day his hours of work, and those of other persons working on a casual basis for the respondent, which hours of work he gave to the respondent so that the hours of work could be set out and calculated on the said time sheets. He also stated that he had taken, in addition, a note of the hours he worked on each day and which had been entered into the brown book on a piece of paper which he then recorded on the calendar at home, so he could keep a check on the hours he had worked and that these were properly accounted for when he came to be paid by the respondent. In claiming 41 hours, as set out in his claim form, for the week commencing 2 May 2011, the note which he had kept was produced to the tribunal in evidence by him. In fact the note showed that he in fact worked 41.5 hours. In contrast to the respondent’s time sheet, the note produced by the claimant in evidence to the tribunal stated that he worked 9 hours on Monday 2 May 2011; whereas the respondent’s time sheet showed that he worked 8 hours. Further, on Friday 6 May 2011 his note showed he worked 5.5 hours rather than 4 hours, as set out in the respondent’s time sheet. I accepted the claimant’s unchallenged evidence that he worked the hours set out in his note, rather than what was set out on the respondent’s time sheet. In the circumstances, I concluded the claimant had worked 41.5 hours during the said week, rather than the 41 hours referred to in his claim form; and that the respondent had failed to pay to him the sum of £14.10 (2.5 x £5.64), to which he was entitled, for the said work carried out by him during the said 2.5 hours.
2.5 The claimant further claimed in his claim form that he had worked some 26.5 hours during the week commencing Monday 5 May 2011 and ending on Friday 13 May 2011, when his employment was terminated, without notice, by the respondent. The respondent, in its response form, stated the claimant had not been required to work for the respondent during that week and it had no record of any work carried out by the claimant during that week. The claimant again produced his note, to which reference has been made above, showing that the total number of hours worked during that week for the respondent by him was 26.5 hours. He also gave evidence, which I accept, in support of his said claim, that he had been working during that week for the respondent when he informed me that he and the Director Mr Latimer had attended the claimant’s Bank on 13 May 2011, in relation to an issue which had arisen about the status of his bank account, in the absence of a proper tax coding. He also gave evidence, which I accept, that he was at work on Wednesday 11 May 2011 when “Michael”, another person who worked for the respondent, crashed the forklift into a wall and that on either 11 or 12 May 2011 he had accompanied Mr Latimer in connection with a delivery of tyres in the region of Omagh/Derry. In the light of the above unchallenged evidence from the claimant, which I accepted, I concluded the claimant had worked for the respondent for the said 26.5 hours during the week 9 May 2011 – 13 May 2011, for which he had not been paid for and that the respondent had therefore failed to pay the claimant the sum of £149.46 (26.5 x £5.64), to which he was entitled.
2.6 The claimant denied that any payment of £160 on 4 April 2011 by the respondent, as referred to in its response form, was in respect of a loan; but rather he contended that it was for work previously completed by him, for which no payslips had been forthcoming from the respondent. However, I noted that, amongst the attachments with the response form, the claimant had signed for receipt of a sum in the above amount. The claimant contended that the payment of £80 by the respondent on or about 6 May 2011 was not, as set out in the response form, in respect of the balance of the loan, but a refund received by the respondent on the claimant’s behalf, less a deduction of £10 for administration costs from the Home Office arising from his registration with the Workers’ Registration Scheme. In the circumstances, having regard to the claim made by the claimant, it was not necessary to consider these issues further, as the claimant was not making any claim in respect of these sums.
2.7 On the limited evidence before me, I calculated pursuant to Article 20 of the Employment Rights (Northern Ireland) 1996 that the claimant’s week’s pay, where he had no normal working hours, was £180 (gross) and £150 (net).
3.1 Under Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order), it is provided:-
“(1) 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.”
Under Article 45(3) of the 1996 Order, it is provided:-
“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 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.”
3.2 In Article 3 of the 1996 Orders it is provided:-
“(1) In this Order “employee” means an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment.
(2) In this Order “contract of employment” means a contract of service ….., whether express or implied, and (if it is express) whether oral or in writing.
(3) In this Order “worker means an individual who has entered into or works under (or where the employment has ceased, worked under –
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker’s contract shall be construed accordingly.”
3.3 In light of the above provisions in the 1996 Order, any claim for unauthorised deductions of wages may be made by an employee but also by a worker, as defined under the 1996 Order.
3.4 Following the decision of the House of Lords in Delaney v Staples (1992) IRLR 191, the definition of wages under the 1996 Order (see Article 59 of the 1996 Order) does not include payment of a sum in lieu of notice, which, as a consequence, any claim made by an employee requires to be determined under the tribunal’s contract jurisdiction, pursuant to the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.
3.5 Under Article 33 of the 1996 Order, an employer is required to give to an employee, when he begins employment with the employer, a written statement of particulars of employment.
3.6 Under Article 27 of the Employment (Northern Ireland) Order 2003, (the 2003 Order), it is provided:-
“……………
(3) if in a case of proceedings to which this Article applies –
(a) an industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate; and
(b) when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) …. of the Employment Rights Order,
the tribunal shall, subject to paragraph (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.
(4) In paragraphs …………… and (3) -
(a) references to the minimum amount are to an amount equal to two weeks’ pay, and
(b) references to the higher amount are to an amount equal to four weeks’ pay.
(5) The duty under paragraph …. (3) does not apply if there are exceptional circumstances which would make an award or increase under that paragraph unjust or inequitable.”
Article 27 of the 2003 Order applies to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4 of the 2003 Order, which includes claims for unauthorised deductions of wages, pursuant to Article 45 of the 1996 Order and also to a claim for breach of an employment contract pursuant to the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. If the tribunal upholds any of the above claims, where the respondent has failed to provide the claimant with a statement of employment particulars, it must make an award pursuant to Article 27 of the 2003 Order, even if it is not pleaded by the claimant, as the said requirement is mandatory.
4.1 The claimant personally carried out the work offered to him by the respondent. He did not delegate it to anyone else. In the circumstances, I was satisfied that the claimant was a worker and the respondent had failed to pay to the claimant the sums of £163.56 (£14.10 + £149.56) for the work carried out by him and to which he was entitled; and therefore the tribunal should make a declaration that the respondent had made an unauthorised deduction from the wages of the claimant in contravention of Article 45 of the 1996 Order and that the respondent must be ordered to pay to the claimant the sum of £163.56.
4.2 In relation to the claimant’s remaining claims of failure to pay notice pay and/or the failure of the respondent to provide him with a statement of employment particulars pursuant to Article 33 of the 1996 Order and/or any claim for any increase in any award made by the tribunal pursuant to Article 27 of the 2003 Order, the tribunal had to be satisfied that the claimant was an employee, as defined in Article 3 of the 1996 Order.
4.3 For the claimant to be an employee under a contract of employment it was necessary for him to establish the following three elements of any such contract, (see further Carmichael v National Power Plc (2000) IRLR 43 and Cotswold Developments Construction Ltd v Williams (2006) IRLR 181). In particular he was required to show:-
(i) the contract must impose an obligation on a person to provide work personally;
(ii) the worker must expressly or impliedly agree to be subject to the control of the person for whom he works to a sufficient degree to make that person; and
(iii) there must be mutuality of obligation between employer and employee.
As regards the first and second element, I had no doubt that, at all material times, the claimant worked under the supervision, instructions and control of the respondent and, in particular, Mr Latimer, the director of the respondent. I was also satisfied that the claimant was obliged to carry out the work personally. In particular, as stated previously in paragraph 4.1 of this decision, I was satisfied on the facts, that the claimant at all times carried out the work himself and there was no question of him delegating the work and/or sending a substitute (see further Express and Echo Publications Ltd v Tanton (1999) IRLR367).
In relation to the third element, mutuality of obligation, this involves an obligation on the employee to accept and to do any such work as was offered to him by the employer and on the employer to pay the employee for the work which was due by the claimant. The claimant accepted all offers of work made by the respondent and for which work he was paid by the respondent, until the claimant’s claims for the work, the subject matter of these proceedings. Further, although the work was casual, it was provided on a very regular basis by the respondent. Indeed the pattern of work was that there was an almost continual repetition of work offers made by the respondent during the said period; and, any gaps between those offers were very limited and of small duration. All such offers were always accepted by the claimant. Therefore, I was satisfied the necessary mutuality of obligation was shown by the claimant in the circumstances (see further St Ives Plymouth Ltd v Haggerty (2008) UK EAT0107); and the claimant was therefore an employee of the respondent for the purposes of the claimant’s said remaining claims. This was, in any event expressly confirmed by the respondent in the letter dated 22 April 2011, sent by Mr Latimer.
4.4 The respondent terminated without notice, in breach of the claimant’s contract of employment on 13 May 2011. He was entitled, pursuant to Article 118 of 1996 Orders to one week’s notice. The claimant was entitled to £160 (net), arising out of the said breach of his contract of employment.
4.5 Further, the respondent, having failed to provide to the claimant, an employee, a statement of particulars of employment, pursuant to Article 33 of the 1996 Order, and the tribunal, having upheld the claimant’s claim of unauthorised deduction of wages and/or his claim for breach of contract, the tribunal was required to make an increase in the award made by the tribunal, pursuant to Article 27 of the 2003 Order by the minimum amount, namely an amount equivalent to two weeks pay – namely £360 (2 x £180). I was not satisfied, in the circumstances, that I should increase the award by the higher amount referred to in the said Article, or there were any exceptional circumstances which would make it unjust or inequitable to make the said increase.
4.6 The total award therefore payable by the respondent to the claimant is £673.56 (£163.56 plus £150 plus £360).
5. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 3 November 2011, Belfast
Date decision recorded in register and issued to parties: