THE INDUSTRIAL TRIBUNALS

CASE REF:	349/06

CLAIMANT:		Mark Wilson

RESPONDENT:		Department of Finance & Personnel

DECISION ON A PRELIMINARY ISSUE
The decision of the tribunal is that the tribunal does not have jurisdiction to entertain the claimant’s complaint, given the provisions of Articles 55 and 59 of the Employment Rights (Northern Ireland) Order 1996 and the complaint is therefore dismissed.

Constitution of Tribunal:
Chairman (sitting alone):		Miss E M McCaffrey

Appearances:
The claimant appeared in person.
The respondent was represented by Mr P Brennan, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

ISSUES

1.	The preliminary issue for the tribunal to decide was whether the tribunal had jurisdiction to entertain the claimant’s complaint, given the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996, which provide that in complaints of unlawful deductions from wages, the time limit for presentation of the complaint is three months from the deduction suffered.  In the case of a series of deductions, which was the allegation in this case, the complaint must be presented within three months of the last deduction. 

2.	In addition, the respondent raised the issue of whether the tribunal had jurisdiction to consider the claimant’s complaint, given that the deductions allegedly made by the respondent did not, it contended, fall within the definition of ‘wages’ set out in Article 59 of the same Order.  As this issue had not been notified to the claimant, he was asked if he was willing to have the tribunal deal with that issue at this hearing.  He agreed that the issue could be addressed and indicated he did not require an adjournment to seek advice or prepare for the issue.

FACTS

3.	The claimant is employed by the respondent as a civil servant and on 3 February 2003 the claimant was transferred on promotion from a post in Belfast City Centre to a post at Rosepark House , Dundonald.  In September 2004, the claimant realised, when staff in his business area were transferred back to Belfast City Centre, that he had been entitled to claim excess fares when he was transferred to Rosepark House.  He submitted a claim for excess  fares and was told that his claim would be paid in part only as the Civil Service required claims for excess fares to be made within three months of the date of transfer.  The procedure for making claims is set out in the NICS Staff Handbook and the claim related to an amount of £2.57 for 302 working days.

4.	At the date of hearing, the period for which payment of excess fares was outstanding was from February 2003 until the date of the claimant’s claim for excess fares, 6 September 2004.  Any such payment for excess fares would have been made in the claimant’s salary for October 2004 and therefore the time for lodging his complaint with the Industrial Tribunals started at the end of October 2004.

5.	The claimant completed a claim form and his claim was received at the Office of the Industrial Tribunals on 21 March 2006, sixteen and a half months after the date when the last ‘deduction’ occurred.  The claimant advised he was pursuing an internal grievance and was not aware until he received a final response to that grievance in February 2006 that he may have a claim in respect of the non-payment of excess fares. 

RELEVANT LAW

6.	The relevant law is to be found in Articles 55 and 59 of the Employment Rights (Northern Ireland) Order 1996 ( the 1996 Order) which provide as follows:-

“55(1)	A worker may present a complaint to an industrial tribunal –

(a)	that his employer has made a deduction from his wages in contravention of Article 45 (including a deduction made in contravention of that Article as it applies by virtue of Article 50(2)),…..

“(2)	Subject to Paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with –

(a)	in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made…….

“(3)	Where a complaint is brought under this Article in respect of -

(a)	series of deductions or payments, …….”
 
The references in Paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

“(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 period as the tribunal considers reasonable.”

Article 59 defines those ‘wages’ in respect of which unlawful deductions may not be made under the Order.  It includes at Paragraph (2)  a list of the payments which are excluded from the definition as follows:-

“(2)	Those payments are –

(a)	any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of Article 45 to any deduction from the worker’s wages  in respect of any such advance),

(b)	any payment in respect of expenses incurred by the worker in carrying out his employment,

(c)	any payment by way of a pension, allowance or gratuity in connection with the worker’s retirement or as compensation for loss of office;

(d)	any payment referable to the worker’s redundancy, and 

(e)	any payment to the worker otherwise than in his capacity as a worker.”

The Tribunal was referred to the decision of the EAT in London Borough of Southwark  v  O’Brien [1996] IRLR 420 where the Employment Appeal Tribunal found that a mileage allowance paid to an employee in respect of travel on union business, albeit it covered more than the actual cost of travel and was subject to deduction of income tax, was not pay but “expenses” and so fell out with the definition of wages in Section 7(2)(b) of the Wages Act 1986, the parallel provision in England to Article 59(2) (b) of the1996 Order.

DECISION

7.	On the first question, as to whether the tribunal has jurisdiction to consider the claimant’s complaint, given that it was lodged some sixteen months outside the time limit allowed by the 1996 Order, it is the finding of the tribunal that it has no jurisdiction to entertain the claim.  The last payment to which the claimant said he was entitled was for the month of September 2004 and should therefore have been paid to him a month later, with his salary for October 2004.  Accordingly the time limit for lodging his complaint expired at the end of January 2005, almost fourteen months before his claim was actually lodged in March 2005.  The reason the claimant gave for not lodging his claim earlier was that he was pursuing the matter internally, but this does not render it reasonably impracticable to lodge a claim with the Industrial Tribunal in my view and so it would not be appropriate to extend the time limit for lodging the claim.

8.	On the second question, as to whether the payment of excess fares constitutes ‘wages’ within the meaning of Article 59 of the 1996 Order,  it was  not disputed that the payment of excess fares was intended to reimburse the employee for the extra cost of travel from his normal place of work to the place he had been asked to work  in this case from Belfast City Centre to Rosepark House in Dundonald.  In light of the legislation and the decision of the Employment Appeal Tribunal in London Borough of Southwark  v  O’Brien, I find that the payment of excess fares is payment of an expense incurred by the worker in carrying out his employment and so falls outside the definition of ‘wages’ in the 1996 Order. 

9.	Accordingly, the tribunal does not have jurisdiction to entertain the claimant’s complaint for the reasons set out above and the complaint is dismissed.

Chairman:

Date and place of hearing:		21 June 2006, Londonderry

Date decision recorded in register and issued to parties: