THE INDUSTRIAL TRIBUNALS

CASE REF:	3183/09IT

CLAIMANT:				Mervyn Monteith

RESPONDENT:			Breen Contracts Ltd

DECISION
The unanimous decision of the tribunal is that the claimant’s claims are well-founded and the tribunal Orders the respondent to pay to the claimant compensation as follows:-

            (a)   One week’s wages for pay in lieu of notice at £75.40
            (b)   One week’s unpaid wages at £500.00
            (c)   Two weeks’ unpaid holiday pay at £500.00 per week = £1,000.00

            TOTAL: £1,575.40

Constitution of Tribunal:
Chairman:	Mr JV Leonard	
Members:	Mr MacLaughlin
		Mr Atcheson	
Appearances:
The claimant appeared and represented himself. 
There was no appearance by or on behalf of the respondent.
Reasons:
1.	The tribunal heard oral evidence from the claimant, there being no appearance by or on behalf of the respondent.  The tribunal noted the content of the documentation which was before it at hearing. Upon conclusion of the hearing, the tribunal sought further clarification from the claimant by letter and noted the content of an email dispatched by the claimant to the Office of Tribunals in response thereto.  

The Issue

2.	In his claim to the tribunal dated 16 February 2009 and received by the Office of Tribunals on 27 February 2009, the claimant claimed unpaid wages, holiday pay, and notice pay.  There was no response made to the claim.  One of the issues which emerged in the course of the hearing was whether or not the respondent was subject to some type of insolvency proceeding.  There was no cogent proof that this was the case and accordingly the tribunal sought clarification from the claimant both during the course of the hearing and also by means of a letter dispatched to the claimant by the Office of Tribunals at the direction of the tribunal dated 28 July 2009.  In response to that letter, by means of an email sent to the Office of Tribunals by the claimant on 23 August 2009, the claimant clarified that his claim did not include a claim for unfair dismissal. It was made clear that the claim was for two week’s wages and two weeks’ holiday money claimed to be owed, and also a week’s pay in lieu of notice.  Specifically in response to a request on the part of the tribunal for evidence as to the possible liquidation of the respondent company (and, as appropriate, evidence of consent on the part of any liquidator to the continuation of proceedings) nothing was provided. Accordingly the tribunal proceeded to determine the case on the basis that the respondent company, Breen Contracts Ltd, was still a company continuing in business and that this company was not subject to any form of insolvency proceedings.  The issue to be determined by the tribunal was whether or not the claimant’s claims (as set out in the claim form and as subsequently clarified by him) were well-founded. If so, the appropriate order to be made had to be determined.   

The Tribunal’s Findings of Fact

3.	In consequence of the evidence before it, the tribunal on the balance of probabilities determined the following material facts: -

(a) The claimant’s employment with the respondent company commenced on 20 March 2007. The employment was terminated with effect from 7 November 2008.  The claimant’s job was a supervisor in construction work.  There was never any settled written statement of terms and conditions of employment.  In this employment, the claimant’s gross weekly wage was £677.37 and his net take-home pay per week was £500.00.  This was the evidence available from the wages slips seen and inspected by the tribunal.  When questioned by the tribunal as to the contractual period of notice of termination required to be given in this employment, the claimant confirmed that the appropriate period was one week’s notice of termination by the employer.  The claimant claimed that he worked a “lying week” at the commencement of this employment, thereby suggesting that the employment was always one week in arrears as regards wages.  The tribunal had no reason to doubt that this was the case.

(b)  In June of 2008 the claimant sustained a back injury and he was unable to work.  Thereafter he received statutory sick pay. There appears to have been no contractual sick pay regime applicable to this employment.  Although the claimant did not confirm the precise date of the injury and the commencement of the period of his unfitness to work, the wages details inspected by the tribunal indicate that the first payment of statutory sick pay was in respect of the week ending 27 June 2008.  For part of that week and thereafter, the claimant received statutory sick pay at a rate of £75.40 per week, with the last such sum being received for the week ending 31 October 2008.  Thus, there appears to have been a week upon conclusion of the employment when the claimant did not receive any statutory sick pay. The employment was summarily terminated by the respondent with effect from 7 November 2008.  
 
(c)	 The tribunal was not appraised of any additional material facts and the decision is reached on the basis of the information placed before the tribunal (as subsequently clarified in the claimant’s email referred to above) and on the basis of the statutory provisions applicable to the facts, as mentioned below.  

The Applicable Law

4.	Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that: "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 that: "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 Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned.  Article 59 of the 1996 Order provides that the definition of “wages”, in relation to a worker, means: "... any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...", subject to certain statutory exceptions which do not apply to the facts of this case. The definition includes statutory sick pay (see Article 59 (1) (b) – “(b) statutory sick pay under Part XI of the Social Security Contributions and Benefits (Northern Ireland) Act 1992,”).

5.    The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 is applicable in relation to breach of contract. In relation to annual leave, Regulation 13 of the Working Time Regulations (Northern Ireland) 1998 as amended by the Working Time (Amendment) Regulations (Northern Ireland) 2007 applies.

The Tribunal’s Decision

6.      In the absence of a claim for unfair dismissal on the part of the claimant (which the claimant has made entirely clear is not being pursued in this case) the claimant’s claim is for pay in lieu of notice, holiday pay and wages deductions.  On the basis of the facts found, the commencement of this employment was on a “lying week” arrangement. On termination of the employment, the claimant did not receive his final week’s wages. That would have been his final instalment of statutory sick pay. As mentioned above, the statutory definition of “wages” includes statutory sick pay.   If the claimant had been given due notice on foot of the statutory provisions contained in Article 118 of the 1996 Order, he would have received one week’s notice or one week’s pay in lieu of notice.  This would have been at the statutory sick pay rate of £75.40.  However, in respect of the “lying week” due but unpaid, the award should include pay at full net pay rate of £500.00 per week.  The tribunal considers that these claims are well-founded and awards compensation accordingly.

7.    The claimant also claimed for unpaid wages due for untaken leave.  The tribunal closely questioned the claimant about this and in the absence of any defence to the claim for unpaid holiday pay, the tribunal fully accepts the claimant’s evidence that he was entitled to two weeks’ holiday pay which was not paid to him.  Accordingly the tribunal considers that this aspect of the claimant’s claim is well-founded and awards two weeks’ unpaid holiday pay at the full net rate applicable, £500.00 per week.   

8.     The claimant’s claims are well-founded and the tribunal Orders the respondent to pay to the claimant compensation on foot of the foregoing statutory provisions as follows:-

            (a)   One week’s wages for pay in lieu of notice at £75.40
            (b)   One week’s unpaid wages at £500.00
            (c)   Two weeks’ unpaid holiday pay at £500.00 per week = £1,000.00

            TOTAL: £1,575.40

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

Chairman:

Date and place of hearing:		27 July 2009, Omagh.

Date decision recorded in register and issued to parties: