Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    735/12

 

 

CLAIMANT:                                Sarah Mathews

 

RESPONDENT:                          The Elevate Group Limited

 

 

 

DECISION

 

The respondent in breach of contract has failed to pay the claimant wages due for January 2012 and shall pay the claimant £1,004.00 net in respect thereof.

 

 

Constitution of Tribunal:

 

Chairman (Sitting alone):           Ms M Bell

 

 

Appearances:

 

The claimant was represented by Mr Keith McCoy of the Citizen’s Advice Bureau, Belfast.

 

Mr Liam Ward, Managing Director of the respondent Company appeared on behalf of the respondent.

 

 

1.       The claimant complained in her claim that she had not received salary due to her for January 2012 on termination of her employment on 27 January 2012.  At hearing the claimant confirmed £1,004.00 was sought as per the pay slip dated 31 January 2012 provided by the respondent to her.

 

2.       The respondent in its response resisted the claimant’s complaint and stated that it had suffered very badly from the construction recession, its banking facility had been reduced and it could not make any payments.  At hearing the respondent Mr Ward acknowledged that arrears of pay were due but he disputed the amount sought by the claimant in lieu of the claimant having worked 37½ hours a week whereas the agreement entered into by the parties with Parity Solutions Limited, a recruitment company, referred to an agreed salary of £14,000.00 for a 40 hour week.  The respondent sought to make a reduction of £336.50 to the arrears of pay of £1,004.00 net sought by the claimant for January 2012 to redress what it considered to have been a mistaken overpayment throughout her employment.

 

3.       At the outset of the hearing it was agreed by parties that the claimant was employed by and that the correct title for the respondent is, ‘The Elevate Group Limited’, the title of the respondent in these proceedings is accordingly amended from ‘Elevate Planning Group Limited’ to ‘The Elevate Group Limited’.

 

ISSUES FOR THE TRIBUNAL

 

4.       The issues for the tribunal were:

·     Has the respondent breached the claimant’s contract of employment? If so,

·     What loss the claimant has suffered a loss as a result of the breach?

 

 

SOURCES OF EVIDENCE

 

5.       The tribunal considered the claim, response, documentation handed in by the parties and heard oral evidence from the claimant and from Mr Ward.

 

 

Findings of fact

 

6.       Under a project to enable graduates to enter suitable graduate level employment in Northern Ireland Mr Ward interviewed the claimant, introduced by Parity Solutions Ltd, along with other possible candidates and selected the claimant as the most suited candidate for the temporary role of marketing manager in the respondent company commencing 9 September 2011 for an estimated period of 24 weeks.

 

7.       In relation to instruction given to Parity Solutions Ltd by the respondent regarding pay and hours of employment to be agreed with the claimant, on Mr Ward’s evidence the claimant’s salary expectations were the highest of the candidates seen and consideration was given to whether a salary of £14,000 was an appropriate rate to pay her, but other than that not much attention was paid to the rest of the details, but Mr Ward at that time envisaged that the claimant would work during the respondent’s normal business hours which amounted to 37½ hours per week.

 

8.       On commencement of her employment the claimant was informed by one of the respondent’s employees of the respondent’s normal business hours and the claimant attended work accordingly.

 

9.       On 24 and 25 September 2011 respectively the claimant, as the ‘graduate’ and Mr Ward as the ‘client’, signed an agreement with Parity Solutions Ltd setting out the terms of business relating to the graduate training project.  Under the agreement the client undertook at paragraph 2 (f), ‘to enter a temporary contract of employment with the Graduate (which should clearly highlight their hours of work, weekly wage and, how they will be paid etc) to be solely responsible for all employment aspect tax and national insurance.’  At paragraph 2 (f) the client undertook, ‘to agree to pay the Graduate a wage of £14k per annum for a 40 hour / week....’

 

10.     No written statement was provided by the respondent to the claimant setting out her hours of work or weekly wage.  At no time was the claimant instructed by the respondent to complete time sheets nor was any issue raised with the claimant in respect of the 37½ hours worked weekly by her during her employment.

 

11.     At the end of September 2011 the respondent provided the claimant a pay slip for net pay of £1,020.04 dated 30 September 2011 and paid the claimant accordingly.

 

12.     The respondent issued payslips to the claimant dated 31 October 2011 for £1,098.74 and 31 December 2011 for £1,098.74 and paid the claimant net pay accordingly.

 

13.     In January 2012 when it became clear that the claimant’s temporary employment would not be extended the claimant gave the respondent one week’s notice to terminate her employment on 27 January 2012.

 

14.     The respondent issued a payslip dated 31 January 2012 to the claimant for pay of £1,004.00 net but no payment was made by the respondent to the claimant.

 

15.     The claimant presented a claim to the office of the industrial tribunals on 25 April 2012.

 

 

LEGISLATION

 

16.     Proceedings may be brought before an Industrial Tribunal in respect of a claim of an employee for the recovery of a sum due arising out of or outstanding on termination of the employee’s employment under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

 

 

APPLICATION OF LAW TO FACTS FOUND

 

17.     There is an ambiguity between the respondent’s actual normal business hours and the working hours referred to at paragraph 2(f) of the agreement with Parity Solutions Ltd.  The tribunal is persuaded on balance that the intention between the parties on commencement of the claimant’s employment was that the claimant be paid a pro rata salary of £14,000 per annum subject to the claimant working the respondent’s normal business being hours 37½ hours per week ,based on  Mr Ward’s evidence and on which basis the respondent’s payslips were produced and paid up to December 2011, rather than 40 hours per week, and that this was an implied term of the employment contract between the claimant and respondent.  The respondent has accordingly breached the claimant’s contract of employment in failing to pay the claimant pay due for January 2012 resulting in loss to her of £1,004.00.  The respondent shall pay to the claimant £1,004.00 net in respect of pay due to her for January 2012.

 

 

INTEREST

 

18.     This decision is a relevant decision under the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.

 

 

 

Chairman:

 

 

Date and place of hearing:       5 July 2012, Belfast.

 

Date decision recorded in register and issued to parties: