Kerr v McNeilly  (Employment Rights)  (11 June 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	293/02

APPLICANT:	William Kerr

RESPONDENT:	Stephen McNeilly 

DECISION
The unanimous decision of the tribunal is that the Respondent is in breach of Article 40 and Article 45 of the Employment Rights (NI) Order 1996 and orders him to pay to the Applicant the sum of £453.05 by way of a lying week’s wages and compensation for failure to provide an itemised pay statement.  

Appearances:
The applicant was represented by Mrs Kerr, Barrister-at-Law.
The respondent did not appear and was not represented.

1.	At the outset of the hearing, Mrs Kerr advised the Tribunal that she had tried to contact the Respondent on behalf of the Applicant, her son, on a number of occasions by telephone but on each occasion he had put the phone down on her. She said that the Labour Relations Agency had also told her that they had had no response to correspondence addressed to Mr Neilly.  No Notice of Appearance had been received by the Tribunal Office.  The Tribunal decided , in exercise of its powers under Rule 9(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 1996, to proceed with the hearing of the case in the absence of the Respondent.

2.	Mrs Kerr advised that the Applicant had been threatened by paramilitaries and told not to go ahead with his case.  She told the Tribunal that these threats had been reported to the police and that this was why her son had not appeared in person.  The Tribunal therefore proceeded to consider the case on the basis of the Originating application before it.

3.	The Applicant worked for the Respondent for approximately nine weeks, from 12 November 2001 until 16 January 2002 as a labourer.  He was summarily dismissed on 16 January 2002 because he had taken a day off to attend the funeral of a friend.  The Applicant’s claim related to a claim for unlawful deductions from wages in respect of his “lying week “and a claim that he had never been given an itemised pay slip during the period he worked for the Respondent.  The Applicant had received wages of £170 per week, sometimes by cheque and sometimes in cash.

The finding of the Tribunal is as follows:

(a)	that the failure of the Respondent to pay the applicant his lying week’s wages is contrary to Article 45 of the Employment Rights (NI) Order 1996 and orders the Respondent to pay the Applicant the sum of £170 accordingly.

(b)	 The failure of the Respondent to provide the Applicant with an itemised pay statement is contrary to Article 40 of the Employment Rights (NI) Order 1996 and the remedy available to the Applicant in respect of such breach is to be found under Article 44(4) of the same Order.  The remedy available is for the Tribunal to order the Employer to pay to the employee a sum not exceeding the aggregate of the unnotified deductions made from the employee’s pay for a period of up to 13 weeks immediately preceding the reference to the Industrial Tribunal, which in this case was on 24 January 2002.  There was no evidence before the Tribunal of the gross pay payable to the applicant, but on the basis that his net pay was £170 and on the basis of the PAYE tables provided by Inland Revenue and contribution tables prepared by the National Insurance authorities, the applicant’s gross pay should have been £201.45 per week.  This sum would be liable to deduction of £11.25 national insurance and £20.20 income tax on the standard single person’s tax code, leaving a net income of £170 per week.  The total unnotified deductions made by the employer in this case were £31.45 per week and as the applicant was employed by the respondent for a period of 9 weeks, the Tribunal orders the  Respondent to pay the Applicant the sum of £283.05 in respect of unnotified deductions.  The total award to be paid to the applicant by the Respondent is therefore £453.05

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Date and place of hearing:  11 June 2002, Belfast

Date decision recorded in register and issued to parties: