Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/02437_10IT.html
Cite as: [2010] NIIT 02437_10IT, [2010] NIIT 2437_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2437/10

CLAIMANT: Josephine McPhillips

RESPONDENT: Destination Skin Ltd

DECISION

The unanimous decision of the tribunal is that –

(i) the claimant is entitled to the sum of £500 in respect of unlawful deductions from her wages; and

(ii) that her claim for breach of contract in respect of unpaid commission on sales be dismissed.

Constitution of Tribunal:

Chairman: Duncan Buchanan

Members: Ms Aisling Boreland

Mr Brendan Heaney

Appearances:

The claimant, Ms McPhillips, in person.

There was no appearance on behalf of the respondent, but written submissions were received on its behalf.

1. At the outset of the hearing, the title of the respondent was amended to that now shown to reflect the fact that it was a limited liability company.

2.

(i)

The claimant indicated that her claims were now confined to those of unlawful deductions from wages, and breach of contract (non-payment of commission on sales). Her claims in respect of outstanding holiday pay and expenses had been resolved to her satisfaction by the respondent company.

(ii)

In order to determine this matter, we heard evidence from Ms McPhillips, who we found to be a truthful witness. There was no appearance on behalf of the respondent company, but in determining the matter, we had regard to its response and to written submissions received on its behalf.

(iii)

We find the facts set out in the following paragraphs.

3.	(i)	The claimant was employed as an IPL practitioner at the respondent’s clinic at Victoria Square Belfast.
	(ii)	She started work on 21 January 2008. She resigned, giving the four weeks’ required contractual notice, on 9 August 2010. The notice therefore took effect from 6 September 2010.
	(iii)	She worked up to 13 August 2010 and then took two weeks’ annual leave to which she was entitled. This meant she was due back on 29 August 2010. However, she did not return to work for the four working days from 29 August to 6 September 2010.
	(iv)	She was not paid for 10 days in August. This is not disputed by the employer. In its response and written submissions, the respondent contends that by not returning to work for those 4 days, the claimant was in breach of contract.
	(v)	The evidence of Ms McPhillips, which we accept, is that when she went on holidays, she was given a leaving card wishing her good luck, and that her then manager told her that she was not required back to work the four outstanding days. Her P45 was sent to her while on holiday, which is consistent with this.
	(vi)	We are therefore satisfied that she was not in breach of contract and that she was entitled to be paid for the 10 days in question. She earned £250 nett per 5 day week. We therefore order that the respondent pay to her the sum of £500 (2 x £250) in respect of unlawful deduction of wages.

4. As far as commission on sales is concerned, she had accrued £960 in July 2010, and this was payable on 26 August 2010. However, we are satisfied that she is not entitled to this amount because of a clause in her contract which provides that commission is not payable when an employee is under notice of termination (given or received) on the date appointed for payment of the commission.

Whatever may be thought about the reasonableness of this clause, it applies to the claimant, and we dismiss the claim for breach of contract with much regret and no enthusiasm.

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

Chairman:

Date and place of hearing: 8 February 2011, Belfast

Date decision recorded in register and issued to parties:

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