Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/915_12IT.html
Cite as: [2012] NIIT 915_12IT, [2012] NIIT 00915_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 915/12

CLAIMANT: Trevor Johnston

RESPONDENTS: 1. CIA Excel Group Limited

2. Alan D’Ambrosio

3. Linda Finlayson

DECISION

The decision of the tribunal is that the first-named respondent do pay to the claimant a sum of £6,215.00, being unpaid wages. The tribunal also declares that the said respondent shall provide to the claimant details of deductions made from his pay as set out below.

Constitution of Tribunal:

Chairman (Sitting alone): Mr S M P Cross

Appearances:

The claimant was represented by a friend Ms Jackie Armour.

The respondent did not appear and was not represented.

FINDINGS OF FACT

1. It was agreed by the claimant, following correspondence from the respondents that the employer of the claimant was CIA Excel Group Limited. Accordingly the
first-named respondent is so designated and the second and third respondents are dismissed from the claim. The award made herein is against the first respondent.

2. The claimant was employed by the first-named respondent, then called Caledonian Investigation Agency Limited, in 1999. At first things went well and the claimant worked as a Private Investigator for the first-named respondent.

3. Recently however the first-named respondent appears to have suffered cash flow problems and wages due to the claimant have not been paid. The claimant was paid £1,500.00 per month gross, £1,130.00 net. The claimant has not been paid since the beginning of December 2011, which was for the month of November. His claim is for 6.5 months pay up to the date of the issuing of these proceedings. Furthermore the claimant has not received pay dockets in respect of his earnings for the months during which he was not paid and is not aware if the proper PAYE and National Insurance has been deducted and accounted for to the appropriate authorities.

4. The claimant did not have a written contract of employment. He was shown such a document when he was first employed but was not given a copy. The original was probably in the first-named respondent’s office in Belfast, but that office was closed and all the papers were taken to the head office in Scotland.

5. The claimant wrote grievance letters to the first-named respondent to seek payment of these wages and payment of expenses due to him in November 2011 and January 2012 but without any result and as a consequence he has commenced these proceedings.

THE LAW

6. Article 45 of The Employment Rights (Northern Ireland) Order 1996, (“the 1996 Order”), states that if an employer wrongly deducts sums from wages due to an employee, then that employee can claim the unpaid wages through the tribunal. Article 46 sets out certain deductions that can be made from wages. The case of Delaney v Staples [1991] IRLI 112 CA, decided that the failure of the employer to pay any part of the wage due falls within the ambit of Article 45.

7. Article 55 of the 1996 Order gives the unpaid employee a right to bring a claim in an industrial tribunal for such unpaid wages. Wages are defined in Article 59 and include wages such as are payable in this case to the claimant. However the Article goes on to state that certain monies due to an employee are not wages for this purpose. Article 59(2)(c), states that “any payment in respect of expenses incurred by the worker in carrying out his employment”, fall into the excluded class of money due to an employee, that cannot be recovered under this provision.

8. The tribunal considered whether the expenses that were claimed by the claimant in this case could be recovered under the provisions relating to the tribunal’s jurisdiction to hear claims for breach of contract in employment matters. This would be under the provisions of Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, (“the 1994 Order”). Unfortunately for the claimant, this order only allows claims of a contractual nature to be heard by a tribunal after the contract of employment has come to an end. In this case the claimant is still employed by the respondent company and so the 1994 Order cannot be invoked to allow the claimant to recover his outstanding expenses. So long as the contract of employment is in being the only way that the expenses can be recovered is through the courts.

9. Article 40 of the 1996 Order provides that an employee has a right to be given an itemised pay slip which shall contain particulars as follows:-

“Article 40 (2) (a) the gross amount of the wages or salary

(b) the amounts of any variable, and subject to Article (1) any fixed, deductions from the gross amount and the purposes for which they are made,

(c) the net amount of wages or salary payable, and

(d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part.”

Article 44 gives the tribunal power to make a declaration, that the employer has failed to give pay statements to his employee, in accordance with Article 40. If the tribunal finds that any unnotified deductions have been made from the pay of an employee during the 13 weeks immediately preceeding the issuing of the tribunal proceedings, the tribunal has power under Article 44(4), to order a payment of the unnotified deductions to the claimant.

DECISION

10. It is clear to the tribunal that the claimant has not been paid his wages for the period set out in his application to the tribunal, namely from 1 December 2011 to 16 May 2012. The tribunal therefore awards to the claimant the sum of £6,215.00, being the net sum of £1,130.00 per month for 5.5 months. The tribunal has heard that there are wages due to the claimant for the months after the issue of these proceedings. As the claim is for the wages up to the issuing of this claim and the respondent was not at the hearing or represented, it is not possible for the tribunal to make an award for any sums accruing after the date of the IT1. To recover the wages so claimed the claimant will have to make a further claim.

11. As explained above, this tribunal has no power to make an award of expenses claimed, so long as the contract of employment subsists.

12. The tribunal also declares that the first-named respondent has failed to give a written pay statement to the claimant in respect of the months of December 2011 to May 2012. The claimant is still in the employment of the first-named respondent and this declaration refers to details of deductions of PAYE and National Insurance contributions. The tribunal is in the position of not knowing whether any unnotified deductions have been made from the claimant’s pay for the 13 weeks before he brought this claim, so it does not award any sum to the claimant in this respect under Article 44(4) of the 1996 Order.

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

Chairman:

Date and place of hearing: 21 August 2012, Belfast.

Date decision recorded in register and issued to parties:

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