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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Puida v TLC Recycling Ltd Michael Reed and Sarah Collins... [2013] NIIT 00590_13IT (21 August 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/590_13IT.html
Cite as: [2013] NIIT 00590_13IT, [2013] NIIT 590_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 590/13
CLAIMANT: Tomas Puida
RESPONDENTS: 1. TLC Recycling Ltd
2. Michael Reed and Sarah Collins
Trading as Environment Specialist Consultancy
DECISION
The decision of the tribunal is that:-
(1) The second respondent is ordered to be dismissed from these proceedings.
(2) The tribunal finds, and so declares, the claimant’s claim against the first respondent for unauthorised deductions from his wages is well-founded and orders the first respondent to pay to the claimant the sum of £3,200.00, being the amount of the said deductions.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Appearances:
The claimant appeared in person and was assisted by Ms D Paukstaityte, a Lithuanian interpreter.
The respondents did not appear and were not represented.
Reasons
1.1 The claimant presented to the tribunal on 21 March 2013 a claim for unauthorised deduction of wages and/or breach of contract in relation to wages and/or holiday pay which he claimed the first respondent had failed to pay to him. The first respondent presented to the tribunal a response on 23 April 2013, in which it denied liability for the claimant’s claims stating, in particular:-
“TLC Recycling Ltd hire a company called Environmental Specialist to source out specific staff for all of our UK sites. The claimant was hired by Environmental Specialist not by TLC Recycling Ltd.”
1.2 The claimant’s claim first came on for hearing on 5 June 2013. The claimant appeared in person and the first respondent was represented by Ms S Jordan of the first respondent. As appears from the records of that hearing, dated 11 June 2013, the Chairman adjourned the hearing and decided the second respondent should be joined to the proceedings as second respondent, in light of the response of the first respondent, as set out above and the absence of any agreement between the claimant and Ms Jordan in relation to who was the relevant employer of the claimant at the relevant and material time. In addition, the Chairman was satisfied a Lithuanian interpreter was required to be made available to assist the claimant at any resumed hearing, due to the level of his English, which was not his first language.
1.3 An Order was issued on 20 June 2013 joining the second respondent to the proceedings, without prejudice to any application by the newly-joined party to set aside the said Joinder. By letter dated 20 June 2013, the second respondent was invited, if it wished to do so, to present a response to the claimant’s claim by 18 July 2013. No application to set aside the Joinder Order was made by the second respondent. Further, no response was presented to the tribunal by the second respondent.
1.4 By letters dated 3 July 2013, Notice of Hearing for this hearing on 6 August 2013 was sent to the claimant, the first respondent and the second respondent. The said letter enclosing Notice of Hearing was returned, unopened, by the second respondent to the tribunal marked ‘RTS’ (which I assume to mean ‘Return to Sender’). Royal Mail did not state, in accordance with its normal practice, it had any inability to deliver the said letter, enclosing the Notice of Hearing, to the second respondent or that the second respondent had gone away. I also noted that the previous letter to the second respondent, dated 20 June 2013, was not returned to the tribunal by the second respondent. No application was made by the first respondent to adjourn the hearing. In the circumstances, I decided to proceed with the hearing, in the absence of the first and second respondents. However, in view of the absence of the first respondent and, before making any decision in this matter, I considered the matters set out in the first respondent’s response, as set out above, and also set out in the Record of Proceedings dated 11 June 2013 of the hearing on 5 June 2013; when the Chairman recorded that Ms Jordan contended:-
“She had with her documentation proving that the respondent [first respondent] was not the claimant’s employers. The employer was another party (mentioned below) [the second respondent] with which her company had a contract for the provision of personnel, including the claimant.”
The first respondent, and in particular Ms Jordan, did not appear, as set out above, at this hearing and the tribunal was not provided with any of the said documentation referred to, as set out above, in the Record of Proceedings.
2.1 The claimant gave oral evidence, with the assistance of the interpreter. In the light of the foregoing, I made the following findings of fact, as set out in the following sub-paragraphs.
2.2 The claimant was born on 10 September 1986 and is Lithuanian. He commenced employment with the first respondent in or about March 2011, after responding to an advertisement on the internet, and going to the office of the first respondent in Leeds. At the time he was living in Doncaster. He denied, in evidence, which in the circumstances was unchallenged, that he had been employed at any time by the second respondent or that the second respondent had any involvement in his recruitment. Indeed, he denied any knowledge of the second respondent at any time during the course of his employment with the first respondent. The first respondent not only gave him employment but also provided him with accommodation, a charge for which was made out of his wages. He worked initially at various recycling sites operated by the first respondent in England and then became a van driver for the first respondent, collecting electrical equipment from customers, which were then recycled at the first respondent’s sites.
At no time was the claimant given a written contract of employment by the first respondent, nor was he given any written pay-slips by the first respondent, but I am satisfied he was employed by the first respondent under a contract of employment from in or about March 2011.. In or about October 2011, the first respondent transferred the claimant to Northern Ireland and he began to work for the first respondent as a van driver, based at the first respondent’s recycling site in Lisburn, collecting electrical equipment from customers for recycling at the Lisburn site. The customers were the subject of a leaflet campaign by the first respondent informing them of the recycling services it provides. He drove a van for the first respondent, upon which there was a sign ‘TLC Recycling’. His manager at the Lisburn site was Mr ‘Jimmy’ Azeez.
2.3 The claimant, in the course of his evidence, was somewhat uncertain about his precise earnings and how much earnings were paid to him by the first respondent. His earnings were paid apparently, on occasion, in cash but also sometimes directly into his bank account in England. However, the claimant produced no relevant bank statements in relation to any such payments. However, on the basis of the claimant’s evidence, which was unchallenged, I concluded in or about October 2011 that the claimant was paid by the first respondent approximately £1,000.00 gross per month but received approximately £600.00 net per month ‘in his hand’, after deduction for accommodation which was initially provided for him by the first respondent in Belfast. However, the claimant moved to his own rented accommodation in or about April/May 2012, with the result that from then on he was earning approximately £800.00 net per month ‘in his hand’ from the first respondent.
2.4 The claimant was not paid any wages by the first respondent from in or about 21 August 2012 until on or about 6 December 2012. In or about November/early December 2012 there was a slowdown in the work as leaflets were no longer being sent out to customers and the claimant did not carry out any work for the first respondent after 6 December 2012. The claimant informed me, and I accept, he was told by Terry Dugbo, whom he said was the owner/senior manager of the first respondent and to whom he spoke in or about August 2012, he was entitled to be paid for 16 days’ holiday. I am satisfied the claimant took a holiday for such a period after his conversation with Terry Dugbo during the period in or September/November, albeit the claimant was somewhat uncertain about the precise dates of this holiday; but was never paid any holiday pay in respect of this holiday. After 6 December 2012, the claimant, along with other employees, sought the said unpaid wages and/or holiday pay from the first respondent and Mr Azeez, his manager agreed that all outstanding wages due to the claimant by the first respondent would be paid to him by the first respondent by on or before 21 December 2012. The first respondent failed to pay to the claimant his said unpaid wages and/or holiday pay by the said date. The first respondent has continued to fail to pay them.
Relevant law
3.1 The Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), insofar as relevant and material provides:-
“(i) Article 45 –
(1) An employer shall not make a deduction from wages if 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;
(b) the worker has previously signified in writing his agreement to the making of the deduction.
...
(3) 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 the 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.”
(See further Delaney v Staples [1992] IRLR 191 where it was held:-
“Wages which are properly payable but not paid are to be treated, to the extent of the non-payment, as within the expression ‘deductions’.”)
(ii) Article 55 –
(1) A worker may present a complaint to an industrial tribunal –
(a) that his employer had made a deduction from his wages in contravention of Article 45.
…
(2) Subject to Paragraph (4) an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of three months beginning with –
(a) in a case of a complaint relating to a deduction by the employer, the date of payment from which the deduction was made;
(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.
…
(3) Where a complaint is brought under this Article in respect of –
(a) a series of deductions;
…
The reference in Paragraph (2) to the deduction … are to the last deduction … in the series.
(4) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such a further period as the tribunal considers reasonable.
(iii) Article 59 –
(1) In this Part ‘wages’ in relation to a worker means any sums payable to the worker in connection with his employment, including –
(a) any … holiday pay.
(iv) Article 3(1) –
(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 ‘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 contract, whether or 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 that contract that of a client or customer of any profession or business undertaking carried on by the individual.”
4.1 In light of the facts, as found by me, on the evidence, I am satisfied, that at all times material to this Section, the claimant was employed by the first respondent under a contract of employment and was therefore a worker for the purposes of these proceedings, as defined in Article 3 of the 1996 Order. The second respondent did not employ the claimant and there was no evidence of any involvement by the second respondent in this matter and therefore, in the circumstances, I have made an Order dismissing the second respondent from these proceedings.
4.2 Further, I am satisfied that the first respondent failed to pay the outstanding wages to the claimant, which said series of deductions from his wages were properly due to him for work done by him from on or about 21 August 2012 to 6 December 2012. These wages were not paid by the first respondent at the date it was agreed by the first respondent the said wages would be paid to him, namely on or before 21 December 2012. These outstanding wages also included the agreed holiday pay for 16 days, which holiday the claimant took during the course of this period. By failing to pay these sums properly due to him the first respondent made unauthorised deductions from his wages for the purposes of Article 45 of the 1996 Order.
4.3 In the case of Group 4 Nightspeed Ltd v Gilbert [1997] IRLR 398, it was held as a matter of law, it is only when a employer fails to pay a sum due by way of remuneration at the ‘appropriate time’ that a claim for unlawful deduction can arise. The appropriate time is the contractual time for payment. In this case, I am satisfied the appropriate time was the date agreed for payment by the first respondent of all outstanding wages, namely on or before 21 December 2012. (See further Arora v Rockwell Automation Ltd [2006] UKEAT/0097/06.) Since the claimant’s claim was presented to the tribunal on 21 March 2013, the claimant’s claim was made in time, pursuant to Article 55(2) of the 1996 Order.; and the tribunal therefore had jurisdiction to determine it.
4.4 As I have stated previously, the claimant did not provide any relevant documentary evidence relating to how the said claim for outstanding wages was made up and his calculation of same was somewhat approximate and uncertain. However, I am satisfied, on the basis of the limited evidence, which was unchallenged, that during the period between on or about 21 August 2012 and 6 December 2012, a period of approximately four months, which included the said period when the claimant was on holiday, the claimant should have been paid by the first respondent the sum of £800.00 net per month during the said period; but which was not paid to him on the agreed date, as set out previously.
4.5 I am therefore satisfied the first respondent made unauthorised deductions from the wages properly payable to the claimant, and I so declare, and I further order the first respondent to pay to the claimant the said sum of £3,200.00 (4 x £800.00), being the amount of the said deductions. In view of my decision, it was not necessary for the tribunal to further consider and determine the claimant’s alternative claim of breach of contract.
4.6 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 6 August 2013, Belfast
Date decision recorded in register and issued to parties: