THE INDUSTRIAL TRIBUNALS
CASE REF: 6514/17
CLAIMANT: Stephen Short
RESPONDENT: Avenir Technical Services Ltd
The decision of the tribunal is that the claimant is entitled to an award of £2,690.59 in respect of unauthorised deduction of wages/breach of contract, notice pay and holiday pay.
Constitution of Tribunal:
Employment Judge (sitting alone): Mr I Wimpress
The claimant appeared in person and was not represented.
The respondent did not attend the hearing and was not represented.
SOURCES OF EVIDENCE
1. The tribunal heard oral evidence from the claimant and received a number of documents from him.
THE CLAIM AND THE RESPONSE
2. The claimant brought claims for notice pay, holiday pay and arrears of pay following the termination of his employment with the respondent. He claimed £5,000 in respect of notice pay, £100 for holiday pay and £2,500 arrears of pay. The respondent did not file a response and did not attend the hearing.
3. Whether the claims brought by the claimant which fall under the headings of breach of contract and unlawful deduction of wages have been made out.
4. The claimant obtained employment with the respondent through Apple Recruitment Services. The claimant was unable to produce his contract of employment as he had left it at the respondent's premises but according to a Candidate Permanent Assignment Schedule issued by Apple Recruitment Services he was due to commence employment as a Technical Sales Manager on 2 August 2017. In the event the start date was delayed and the claimant commenced employment on 7 August 2017 and continued until his contract was terminated on 12 October 2017. The same document stated that he would be required to work 9.00 am to 5.00 pm Monday to Friday but that due to the nature of the role he may be required to work outside these hours as business needs dictate. The gross salary was stated to be £26,000 per annum plus commission. The claimant also had the use of a company car, laptop and mobile phone. The claimant received one payslip from the respondent but was unable to locate it. The claimant estimated that he worked a forty hour week. The claimant's gross monthly salary pay was £2,166.67 and his daily rate of pay before tax was £100. The claimant did not earn any commission during the period of his employment. By my calculation the claimant's monthly net pay would be £1,746.24 and his net daily rate of pay works out at £80.61.
5. The claimant was paid £1,361.60 for the nineteen days that he worked in August. He produced a print out from his bank as evidence of this.
6. The claimant's employment was terminated in person by the respondent's Managing Director, Seth Russell, on 5 October 2017 with one week's notice. Mr Russell stated that he wasn't happy with the claimant. Mr Russell told the claimant that he would be paid on 6 October 2017. No payment was received on that date and in consequence the claimant emailed Mr Russell on 6 October 2017 about non-payment. Mr Russell replied by email on the same day and indicated that he was waiting until the cut off time for their Euro payments but unfortunately none were received and that he would keep the claimant updated. Further email correspondence ensued but the claimant never received any pay for September and October.
7. Mr Russell subsequently sent an email to the claimant on 10 October 2017 confirming that his notice period was one week and that salary was due up to the end of this period namely 12 October 2017. Mr Russell also requested the return of the company car and fuel card. The claimant did not receive notice pay or outstanding holiday pay. The claimant returned the company car and fuel card to Mr Russell. Mr Russell promised to pay him on numerous occasions but failed to do so.
8. On 10 October 2017 the claimant emailed Mr Russell in relation to outstanding pay for September 2017, pay for 1-5 October 2017 and pay in lieu of notice.
9. Under his contract of employment the claimant was entitled to 28 days holiday per year plus 4 statutory days. The respondent's holiday year ran from January to January. Under the Working Time Regulations the claimant is entitled to 5.6 weeks paid holiday per year or 28 days per year. The claimant took 5 days leave during the holiday year.
10. Unauthorised Deduction from Wages
Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides as follows:
"An employer shall not make a deduction from wages of 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, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction".
Article 45(3) of the 1996 Order provides as follows:
"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".
The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 confers jurisdiction on industrial tribunals to hear claims for breach of contract and Article 3(c) provides as follows: -
"Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for sum due in respect of personal injuries) if - ...
(c) the claim arises or is outstanding on the termination of the employee's employment."
12. Notice Pay
Article 118 of the Employment Rights (Northern Ireland) Order 1995 makes provision in relation to notice periods as follows:-
"118. -” (1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more-”
(a) is not less than one week's notice if his period of continuous employment is less than two years,
(b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and
(c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.
(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week."
13. Holiday Pay
The Working Time Regulations (Northern Ireland) 2016 ("the 2016 Regulations") provide under Regulations 15 and 16 for a worker to have minimum leave in a year of 5.6 weeks. Under Regulation 17 of the 2016 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.
14. I am satisfied that the claimant's claims of breach of contract and unlawful deduction of wages in respect of non-payment of wages are made out. The claimant is therefore entitled to payment in respect of the whole of September and the five days that he worked in October. The award is calculated as net pay rather than gross pay. The claimant is also entitled to an award in respect of notice pay. In the absence of any representation by the respondent to the contrary I am satisfied that the claimant is entitled to £500 in notice pay.
15. In relation to holiday pay the claimant is potentially entitled to a payment in lieu of leave in accordance with Regulation 17 of the 2016 Regulations. The relevant calculation is as follows: (28 x 67/365) = 5.1 - 5 (holidays taken) = 0.1 days. Thus the claimant is entitled to a fraction of a day which I consider ought to be rounded up to half a day's pay making its value £40.30.
16. Non Payment of Wages £2,150.29
Notice Pay £500.00
Holiday Pay (1/2 day) £40.30
Total £ 2,690.59
17. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Date and place of hearing: 9 February 2018, Belfast.
Date decision recorded in register and issued to parties: