THE INDUSTRIAL TRIBUNALS

CASE REF:  1063/07

CLAIMANT:			William Gary Stewart

RESPONDENT:		Derek McAleese T/A Direct Energy Management Ltd

DECISION
The tribunal has unanimously concluded that the claimant has satisfied it that the respondent made an unauthorised deduction from his wages, and also that the respondent failed to pay him one day’s holiday pay.  The respondent therefore is ordered to pay the total sum of £292 to the claimant, being made up of £220 for one week’s pay, plus the mileage allowance owed to the claimant of £28, and £44 for non payment of one day’s holiday pay.  The tribunal also orders that the heading of this case be amended so that the respondent is properly named as Derek McAleese T/A Direct Energy Management Ltd.

Constitution of Tribunal:
Chairman:		Mr T Browne
Members:		Mr P Killen
			Mr R Hanna

Appearances:
The claimant appeared and represented himself.
The respondent did not present a response to the claim within time, and therefore was excluded from taking any part in the proceedings by virtue of Rule 9 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

ISSUES

 1.	The following were the claims before the tribunal arising from the originating claim: (i) Whether the respondent had made an unlawful deduction from the wages of the claimant in failing to pay a week’s wage and in failing to pay £28 by way of mileage allowance.

 2.	(ii) The tribunal also had to determine if the respondent had failed to pay one day’s holiday pay, in contravention of the 1998 Working Time Regulations.

FINDINGS OF FACT

 3.	The claimant gave unchallenged sworn evidence on his on behalf.  The tribunal found the claimant to be a truthful and accurate witness.  

 4.	The tribunal in reaching its conclusions as to the facts in this case also had regard to the written contents of the claimant’s complaint to the tribunal.

 5.	The tribunal accepted Mr Stewart’s evidence that for a period of time at the beginning of 2007 the respondent repeatedly failed to pay him and his colleagues on time.  Despite the fact that the claimant was due to be paid on a Friday, he repeatedly did not receive his pay until the Tuesday or Wednesday of the following week.  This included repeated instances of the money not being in the bank account of the claimant whenever he checked it on the appropriate day and culminated at the end of March with the claimant having to wait in his house to have the respondent’s son call in to pay him in cash.

 6.	In the last week of March 2007, the tribunal accepted Mr Stewart’s evidence that he received no payment.  The claimant’s pay that week should have included £28 to cover the costs of two trips he had carried out on behalf of the respondent.  The tribunal also accepted that the claimant was owed one day’s holiday pay, which he also did not receive.

LAW AND CONCLUSIONS

 7.	Article 45 of the Employment Rights (Northern Ireland) Order 1996 prohibits the deduction from wages by an employer except where either such deduction might properly be made by virtue of a statutory provision or by a relevant provision of the worker’s contract; or where the worker has previously signified in writing his agreement or consent to the making of the deduction.

 8.	It was clear to the tribunal that neither of the exceptions to Article 45 applied in this case.  The tribunal therefore unanimously concludes that non payment of any of the weekly wage constitutes a deduction, that that happened in this case, and that such deduction was unauthorised for the purposes of this legislation.

 9.	The tribunal further accepted that by failing to pay one day’s holiday pay the respondent was in breach of the Working Time Regulations 1998, and that one day’s pay was therefore due to the claimant.

10.	The tribunal therefore orders the respondent to pay the sum of £220, being one week’s wage.  The respondent is also ordered to pay to the claimant the sum of £28 by way of mileage allowance.  The tribunal further orders that the respondent pay to the claimant the sum of £44, being one day’s holiday pay entitlement, being a total of £292.

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

Chairman:

Date and place of hearing:	4 October 2007, Belfast

Date decision recorded in register and issued to parties: