THE INDUSTRIAL TRIBUNALS 

CASE REF:	432/05

CLAIMANT:		David Byrne

RESPONDENT:	Derry City Football Club	

DECISION 

The unanimous decision of the tribunal is that:-

1.	The respondent failed to show grounds for an extension of time for the entry of a response.

2.	The claimant has suffered an unauthorised deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 and the tribunal orders the respondent to pay to the claimant the sum of £6,030.00.

Appearances:

The claimant was represented by Mr F Gavin and Mr McKinney of SIPTU.

The respondent was represented by Mr J Roddy. 

1.	By his claim presented on 17 February 2005, the claimant complained of breach of contract, non payment of wages and unfair dismissal by the respondent.  In the course of the hearing the claimant withdrew his complaints of breach of contract and unfair dismissal leaving the tribunal to determine his complaint of non payment of wages.  

2.	No response was entered by the respondent within the required time and application was made by the respondent at the commencement of the hearing for an extension of time for the entry of a response.

THE ISSUES

3.	The issues for the tribunal were as follows:-

(a)	Whether there were grounds to justify an extension of time for the entry of a response by the respondent.

(b)	Whether the claimant suffered an unlawful deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

4.	The tribunal heard from Mr Jim Roddy in respect of the application for an extension of time to enter a response.

5.	The tribunal heard evidence from the claimant on his own behalf and also received a bundle of documents.

6.	There was no evidence of circumstances that prevented the respondent from entering an appearance within the required time following receipt of a copy of the claimant’s originating application.

7.	The claimant’s oral evidence of his 52 week fixed term contract of employment from 12 March 2004 to 12 March 2005 for the weekly net remuneration of €600.00, was supported by the documents.  There was no evidence of the claimant having received a pay-slip at any time, a P60, or other documents from the respondent for taxation purposes.  There was no evidence of the claimant’s contract of employment having terminated prior to 12 March 2005.  There was no evidence to contradict the claimant’s evidence as to non payment by the respondent of wages due to him from 26 November 2004 to 12 March 2005.  There was no evidence of any statutory or contractual basis for the non payment of wages due by the respondent to the claimant, prior written agreement by the claimant consenting to the non payment of wages by the respondent, or the non payment being an exempt deduction under statute.

8.	The tribunal having heard the evidence and considering all the documentation before it found the following facts:-

(a)	That the respondent duly received a copy of the claimant’s claim in good time to enter a response within 21 days from receipt thereof and there were no circumstances which prevented the respondent from doing so within time.

(b)	That the claimant was employed by the respondent as a professional footballer under a fixed term contract for 52 weeks from 12 March 2004 to 12 March 2005 under which the respondent was contractually obliged to pay the claimant €600.00 net per week for the duration of the contract.

(c)	That the fixed term contract ended on its expiry in March 2005.

(d)	That the claimant received his net weekly wage of €600.00 from the respondent in cash from the commencement of his employment with the respondent, until 19 November 2004.

(e)	That the claimant received no further payment of weekly net wages due by the respondent to him, for 16 weeks, from 19 November 2004 to 12 March 2005.

(f)	The claimant first became aware of the non payment of wages by the respondent on 26 November 2004.  

(g)	There was no contractual, statutory, prior consensual written agreement by the claimant, or, statutory exemption whereby the respondent was entitled to make a deduction from or non payment of the wages due to the claimant.

(h)	That the claimant to mitigate his position for the following football season signed a contract with a new employer commencing 4 March 2005.

9.	Under Rule 17(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 a Chairman may, on the application of a party or of his own motion, extend the time for doing any act appointed by or under the Rules and may do so whether or not the time so appointed has expired.

10.	Employment Rights (Northern Ireland) Order 1996, Article 45(1), 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 the statutory provisions or a relevant provision of the worker’s contract, or

(b)	the worker had previously signified in writing his agreement or consent to the making of the deduction.

11.	The tribunal’s conclusions

Having applied the relevant regulations and principles of law to the facts found, the tribunal concluded that:-

•	there were no grounds to justify the extension of the time for the entry of a response by the respondent; and 

•	that the claimant had suffered an unlawful deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 for the period of 16 weeks at a rate of €600.00 per week, but sought only to recover £6,030.00 as the Sterling equivalent to 15 weeks net wages having signed a contract for the next football season with a new employer from 4 March 2005.

12.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	30 June 2005, Belfast.	

Date decision recorded in register and issued to parties: