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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Walker v Ivan McCombe [2013] NIIT 01940_12IT (09 January 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1940_12IT.html
Cite as: [2013] NIIT 01940_12IT, [2013] NIIT 1940_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1940/12
CLAIMANT: Robert John Walker
RESPONDENT: Ivan McCombe
DECISION
The claimant has suffered an unauthorised deduction from wages and a loss as a result of the breach of contract by the respondent in failing to pay the claimant wages a contractual bonus and holidays accrued due but not taken on termination of his employment. The respondent shall pay the claimant £1,897.28.
The respondent has failed to provide the claimant with an itemised pay statement on 20 June 2012 and 20 July 2012 and the tribunal determines that the particulars set out herein ought to have been included to comply with Article 40 of the Employment Rights (Northern Ireland) Order 1996.
Constitution of Tribunal:
Chairman (Sitting alone): Ms M Bell
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented.
1. The claimant in his claim complained that he had not received wages slips, £1,800.00 arrears of pay, an agreed contractual bonus of £600 and holiday pay of £285.71 due to him on leaving his employment.
2. No response was presented by the respondent.
ISSUES
3. The issues before the tribunal were:
- What particulars ought to have been included in a written itemised pay statement to comply with Article 40 of the Employment Rights (Northern Ireland) Order 1996?
- Has the claimant suffered an unauthorised deduction from wages and or breach of contract by the respondent in respect of the payment of wages, contractual bonus and holiday pay? If so, what loss has the claimant suffered?
EVIDENCE
4. The tribunal considered the claim, documentation from the claimant and heard oral evidence from the claimant.
FINDINGS OF FACT
5. The claimant was employed as an online marketing manager by the respondent from 30 April 2012 until 4 July 2012 when he left his employment following failure by the respondent to provide him a payslip and pay wages that he considered to be due.
6. Prior to starting employment with the respondent the claimant had been in receipt of JSA from July 2011 and had no other income.
7. Agreed terms of the claimant’s employment confirmed in an email from the respondent to the claimant on 27 April 2012 included that he would be paid a salary of £18,000.00 per annum payable on the 20th of the month following commencement and a target related bonus payment on the basis that, ‘Each Yellow tom FB page as soon as it reaches 1,000 likes will trigger a bonus of £100 for every 1,000 likes.’ Holidays were to be, ‘all statutory days as recognised in Northern Ireland plus 25 days a year.’
8. The claimant’s effective date of termination was 4 July 2012.
9. At the effective date of termination three Yellow Tom FB pages for which the claimant was responsible, namely Larne, Antrim and Magherafelt, each had reached more than 2000 ‘likes’.
10. Excluding bank/public holidays the claimant had not taken any of his additional 25 days holiday entitlement during his employment.
11. In respect of the first payment of wages due on 20 June 2012 to the claimant the respondent confirmed by email that he had not got the final figure in time from his accountants and so had transferred £1,150.00 to the claimant and assured him that he would sort out any difference the next month. In response the claimant sent emails to the respondent on 21 June 2012 querying the £1,150.00 as he had calculated a payment of £1,401.84 to be due after taxation at 20% having apportioned his tax free personal allowance over 12 months and allowed a day’s pay for the 30 April 2012. The respondent replied that there was a deduction to be made for National Insurance Contributions and that he thought that he had overlooked the 30 April 2012. The respondent confirmed that he would be speaking to his accountant’s that following Monday morning and the claimant would be paid the correct amount. No payment of wages was received into the claimant’s account and he subsequently was given a payment in cash from the respondent of £1,200.00 in respect of the first payment due.
12. Between the end of June and early July, through a series of text messages and emails, the claimant continued to seek his outstanding payslip and further wages due to him without success.
13. At the date of termination of employment the claimant had worked for just over two months for which he was due payment of approximately £3,000.00 before deductions for tax and national insurance but had only received £1,200 from the respondent.
14. The claimant wrote to the respondent on 3 September 2012 seeking the balance of pay of £3,000.00 less £1,200.00 received, £600 bonus and four days holiday pay due pro rata to him. No response was received.
15. The claimant presented his claim to the Office of the Tribunals on 30 September 2012.
16. The basic tax personal allowance for the 2012/13 tax year is £8,105.00. National Insurance rates for an employee paying Class 1 contributions in the 2012/13 tax year earning between £146 and £187 per week are 12% on the amount earned between £146 and £817 up to the upper earning limit and 2% on earnings above that.
THE LAW
17. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.
18. Article 45 of the Employment Rights (Northern Ireland) Order 1996 provides for a worker’s right not to suffer unauthorised deductions from wages by his employer. A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.
19. Article 40 of the Employment Rights (Northern Ireland) Order 1996 provides that an employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement which shall include particulars of:-
(a) the gross amount of the wages or salary,
(b) the amounts of any variable, and (subject as provided therein) any fixed, deductions from that gross amount and the purposes for which they are made,
(c) the net amounts 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-payment.
20. Where an employer does not give an employee a statement required by Article 40 of the 1996 Order the employee may require under Article 43 a reference to be made to the industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned.
APPLYING THE LAW TO FACTS FOUND
21. The claimant was unable at hearing to offer the tribunal assistance as to the correct particulars he considered should have been contained in his payslips or correct net amounts payable to him.
22. On balance the tribunal is satisfied that the claimant was a basic rate tax payer and would have been liable for Class 1 national insurance contributions. Based thereon the tribunal determines that the claimant ought to have received itemised statements for pay due on 20 June 2012 and 20 July 2012 for approximately as follows:-
JUNE 2012
(a) Gross pay £1,500.00
(b) Tax £165.00, National insurance £104.00
(c) Net pay £1,231.00
(d) £1,200 paid in cash June 2012, £31.00 outstanding
JULY 2012
(a) Gross pay £1,500.00 + bonus £600.00 = £2,100.00
(b) Tax £285.00, National insurance £176.00
(c) Net pay £1,639.00
(d) £1,639.00 outstanding
23. Based on the claimant’s undisputed evidence the tribunal is satisfied that under his contract of employment the claimant was due at the effective date of termination net outstanding wages for work done for the months of May and June and a bonus payment for ‘likes’ reached on Yellow Tom pages amounting to approximately £1,670.00 net, together with four days holiday pay accrued due at approximately £56.82 net per day amounting to £227.28 net. The claimant since termination of his employment, has not been paid the balance due under his contract of employment for wages, bonus and holidays accrued due and the tribunal finds that the claimant has suffered an unauthorised deduction from wages and a loss as a result of the breach of contract by the respondent in respect thereof in the sum of £1,897.28. The respondent shall pay the claimant £1,897.28.
24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 5 December 2012, Belfast.
Date decision recorded in register and issued to parties: