THE INDUSTRIAL TRIBUNALS

CASE REF:  07109/09

CLAIMANT:			Stephen James McBride

RESPONDENT:		Axellis Medical Technologies Limited 
(formerly known as Bluescope Medical Technologies 
  Limited)

DECISION

The decision of the tribunal is that the respondent is hereby ordered to pay to the claimant the sum of £8,362.58 being a total sum of £6,968.82 in respect of unpaid wages together with an increase in the award of 20% in respect of the respondent’s failure to comply with the applicable statutory grievance procedure.

Constitution of Tribunal:

Chairman (Sitting Alone):	Ms Turkington

Appearances:

The claimant appeared and represented himself at the hearing 

The respondent did not appear at the hearing.  The respondent had lodged a response form in which it indicated that it did not intend to resist the claim.

The Claim

The claimant brought the following claim before the tribunal:-

1.	A claim in respect of unpaid wages.

The Issues

The issues to be determined by the tribunal were:-

2.	Whether the respondent failed to make payment to the claimant in respect of wages earned and, if so, the amount of such unpaid wages.  Further, the tribunal had to determine whether either of the statutory grievance procedures was applicable in this case and, if so, whether the respondent was responsible for the non-completion of such procedure.  Finally, the tribunal had to decide whether to order an increase in the award to the claimant.

Disposal of the claim in the absence of the respondent

3.	The respondent did not appear at the hearing.  The respondent had presented a response form in which it indicated that it did not intend to resist the claimant’s claim.  In its response form, the respondent took issue with a number of points made by the claimant in his claim form.  However, the respondent confirmed that it did not dispute that it owed a debt to the claimant and, further, the claimant’s figures were not disputed.  Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

4.	The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.

Facts of the Case

Having considered the claim form submitted by the claimant, the response form submitted by the respondent and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-

5.	The claimant started his employment as a Senior Design Engineer with the respondent (which was then known as Bluescope Medical Technologies Limited) in or about April 2008.  The claimant received a statement of main terms and conditions of employment which confirmed at page 2 that his salary was £39,000 per annum and his pay was to be paid by credit transfer at monthly intervals on the 28th day of each month. 

6.	The claimant worked 37.5 hours per week initially and his gross pay was £3,250 per month and his net pay was approximately £2,399.46 per month.  The claimant received pay slips.  

7.	In January 2009, the claimant did not receive his pay on time.  Likewise, the claimant’s pay for February and March 2009 was delayed, but the claimant did eventually receive full pay for each of these months.

8.	The claimant has only received 60% of his pay for April 2009 and has never received any pay for the months of May, June, July and August 2009.

9.	In view of the delays in payment during the early part of 2009, the claimant decided to seek income from elsewhere, so he became part-time and reduced his working hours with the respondent from 1 May 2009.  The claimant began to work 3/5ths of full-time hours and therefore his net pay from May onwards should have been £1,502.26.

10.	The claimant gave notice of termination of his employment on 11 June 2009.  The claimant continued to work during his notice period and his last working day was 31 August 2009.

11.	The claimant submitted a written complaint to the respondent about unpaid wages by an e-mail dated 20 August 2009.  The claimant received no reply.  The claimant sent further e-mails dated 26 August 2009 and 1 September 2009 complaining about the respondent’s failure to pay wages.  The claimant then sent a letter to the respondent on 14 September 2009 setting out details of the missed salary payments.  The respondent replied by letter dated 17 September indicating that there was no dispute over the amounts of salary remaining unpaid and that the respondent was unable to pay the salary owed to the claimant until it received external funding. The respondent never offered to meet with the claimant to discuss his complaint in respect of unpaid wages.                   

Statement of Law

12.	By Article 45 of the Employment (Northern Ireland) Order 1996, an employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction.  A complete failure to pay wages on any occasion constitutes a deduction from wages.

13.	The statutory grievance procedure set out in the Employment (Northern Ireland) Order 2003 is applicable in this case.  The standard statutory grievance procedure requires the employee to put his complaint in writing to the employer and for the employer to invite the employee to a meeting to discuss the grievance and then to provide an appeal meeting.  The modified statutory grievance procedure requires the employee to put his complaint in writing to the employer and the employer must provide a written response.  The modified procedure applies where the employee has ceased to be employed by the employer, where the standard grievance procedure was not completed before the employee left the employment of the employer and the parties have agreed in writing that the modified procedure should apply.

14.	Pursuant to Article 17 of The Employment (Northern Ireland) 2003 (“the 2003 Order”), where it appears to the tribunal that the non-completion of the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50%.

	Conclusions

15.	The tribunal concluded that the claimant received only 60% of his wages for the month of April 2009 and none of his wages for the months of May, June, July and August 2009.  The claimant is therefore entitled to the following payment in respect of unpaid wages -

40% of net pay for April = £959.78.

Net pay for 4 months at part – time rate –  4  x  £1,502.26  =  £6,009.04.

16.	The total sum due to the claimant by the respondent is £6,968.82.
17.	The tribunal determined that the standard statutory grievance procedure was applicable in this case since the parties had not agreed in writing that the modified grievance procedure was applicable.  The respondent failed to convene a meeting with the claimant to discuss his grievance.  Accordingly, the tribunal concluded that the respondent in this case was responsible for the non-completion of the applicable statutory grievance procedure.  

18.	The tribunal therefore proceeded to consider whether the award due to the claimant should be increased in accordance with article 17 of the 2003 Order.  The tribunal was satisfied that it was appropriate to order an increase in the award in this case.  Since the respondent had provided a written response to the claimant’s written complaint, the tribunal felt it appropriate to order an increase in the award to the claimant which was closer to 10% than 50%.  Accordingly, the tribunal decided that the award to the claimant should be increased by 20%.

19.	Therefore the total award to the claimant is as follows:-

£6,968.82  +  (20% of £6,968.82)  =  £8,362.58.

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

Chairman:

Date and place of hearing: 7 December 2009, Belfast.

Date decision recorded in register and issued to parties: