THE INDUSTRIAL TRIBUNALS
CASE REF: 7322/17
CLAIMANT: Max Finlay
RESPONDENTS: 1. Nigel Foster
2. Fosters Traditional Butchers Ltd
The decision of the tribunal is that the claimant is entitled to an award of £458.12 in respect of unauthorised deduction of wages and breach of contract.
Constitution of Tribunal:
Employment Judge (Sitting alone): Mr I Wimpress
The claimant was represented by his father Mr Mervyn Finlay.
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 tendered on behalf of the claimant which included time sheets completed by the claimant, text messages, correspondence, a memorandum of a telephone conversation and a character reference.
THE CLAIM AND THE RESPONSE
2. The claimant brought a claim for £439.00 in arrears of pay following the termination of his employment with the respondent. The respondent did not file a response and did not attend the hearing.
3. Whether the claim brought by the claimant which falls under the headings of breach of contract and unlawful deduction of wages has been made out.
4. The claimant was employed by the respondent as a General Assistant from 22 June 2017 to 30 September 2017. This was a summer job taken by the claimant with a view to working towards an apprenticeship with the respondent. The claimant's place of work was in the meat counter in Maghaberry Eurospar but the respondent's main place of business was at 4 Lisburn Street, Hillsborough where it traded under the name of Fosters Traditional Butchers Ltd. Although the claimant was firmly of the view that his employer was Nigel Foster it is possible that in fact he was employed by Fosters Traditional Butchers Ltd. Accordingly, I consider it appropriate to join Fosters Traditional Butchers Ltd to the proceedings. This will not cause any prejudice as it is clear that Mr Nigel Foster is an owner of Fosters Traditional Butchers Ltd. The title of the proceedings is amended accordingly.
5. The claimant's job involved serving at the counter, keeping the workplace clean, stacking shelves and packaging products. The claimant was paid at a rate of £3.50 per hour. The claimant was paid in cash and did not receive payslips. The claimant left the respondent's employment when he was accepted at a college course.
6. The claimant worked variable hours as requested by Nigel Foster and Aaron Foster. According to the claimant's timesheets he worked and was paid as follows:
22 June 2017 to 30 June 2017 - 30 hours [paid in full]
1 July 2017 to 4 July 2017 - 10.5 hours [not paid]
5 August 2017 to 17 August 2017 - 30 hours [not paid]
18 August 2017 to 24 August 2017 - 34.5 hours
[paid £100.00 - £20.75 short]
25 August 2017 to 8 September 2017 - 71.5 hours
[paid £50.00 - £200.25 short]
9 September 2017 to 23 September 2017 - 32.75 hours
[paid £50.00 - £63.87 short]
30 September 2017 - 9 hours [not paid]
The shortfalls in pay as recorded by the claimant amount to £458.12.
7. Mr Foster did not pay the claimant either on time or the full amount due. The claimant and his mother, Mrs Gillian Finlay exchanged extensive text messages with Mr Foster between 10 August 2017 and 30 October 2017 in order to secure payment of the wages due to the claimant. The claimant continued to work at the meat counter and some of the texts dealt with arranging his times of work. Mr Foster indicated that he would get the claimant's wages sorted out.
8. On 9 October 2017 Mr Nigel Foster asked the claimant to come in and the matter would be sorted out but although the claimant attended Mr Foster did not appear. A subsequent text indicated that his wife, Mrs Josephine Foster, had been involved in a serious car crash. The claimant made further efforts to contact Mr Foster including attending on 13 October 2017 but no-one was there.
9. On the morning of 30 October 2017 Mr Finlay and the claimant confronted Aaron Finlay on the forecourt of Maghaberry Eurospar and appear to have handed him a letter from the claimant about the wages issue enclosing the timesheets and the amounts paid and unpaid and asked him to pass it on to Mr Nigel Finlay.
10. On 6 November 2017 the claimant wrote to Mr Foster and stated that if he did not receive full payment of the outstanding monies by 15 November 2017 he would take the matter further and indicated that he had lodged a claim in the tribunal office.
11. On 10 November 2017 Mr Foster phoned the family home and spoke with the claimant's father. Mr Foster stated that he intended to pay the claimant but that this would have to wait until he had recovered from an operation and his wife had recovered from a car crash. He also indicated that he had proof that the claimant had signed for two payments of £80.00 and £114.00 and that he would email these. Mr Foster went on to state that a third party was responsible for pay and that the claimant was basing his calculation on a pay rate of £7.00 per hour. Reference was also made to the exchange on forecourt of Maghaberry Eurospar with Mr Aaron Foster and to various excuses Mr Aaron Foster offered for not paying the monies due to the claimant.
12. As indicated in the letter of 6 November 2017 a claim form was lodged that day. In his claim form the claimant stated that he had been trying to contact Mr Nigel Foster for four weeks without success and that Mr Foster was now refusing to answer his texts and has closed down the meat counter in Maghaberry Eurospar.
13. 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."
15. I am satisfied that the claimant's claim is made out and that he is entitled to an award of £458.12 for unlawful deduction of wages and breach of contract.
16. Non Payment of Wages /Breach of Contract - £458.12.
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: