Somerville v Blanch-Pak (Production) Co [2004] NIIT 9476_03 (15 September 2004)

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URL: http://www.bailii.org/nie/cases/NIIT/2004/9476_03.html
Cite as: [2004] NIIT 9476_03, [2004] NIIT 9476_3

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 9476/03

    APPLICANT: Stephen Wallace Somerville

    RESPONDENT: Blanch-Pak (Production) Co

    DECISION

    The unanimous decision of the tribunal is that the respondent did not make unlawful deductions from the applicant's wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

    Appearances:

    The applicant appeared in person.

    The respondent was represented by Mr G Daley, Francis Hanna & Co., Solicitors.

    The tribunal found the following facts:

  1. By his Originating Application, presented on 27 November 2003, the applicant alleged he had been unfairly dismissed on 30 October 2003, and that the respondent had failed to pay his mobile phone bill, his car allowance, deduction of commission pay, incorrect commission paid and that outstanding expenses were not paid at the termination of his employment. The respondent's Notice of Appearance, presented on 15 January 2004, denied that any such unlawful deductions from wages were made by it. By a decision of the tribunal, dated 2 September 2004, another tribunal dismissed the applicant's unfair dismissal claim, and the matter of the unlawful deductions was listed before us on 15 September 2004.

  2. On 15 September 2004, the tribunal comprised two members of the tribunal only. Pursuant to Regulation 8(3) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004, the parties both consented to continuing in the absence of one member of the tribunal.


    3.  

  3. Before us, the applicant contended he was due the following monies, which were not paid by the respondent when his employment was ended on 30 October 2003:-

    4. (a) £50.00 mobile phone bill.

    (b) £149.29 car service costs.

    (c) £100.00 miscellaneous expenses.

    (d) £100 per week x 39 weeks of employment for a car allowance.

  4. The tribunal finds that the applicant expected the respondent to pay his mobile phone bill costs, but that there was no contractual agreement between the parties that this would be the case. The applicant conceded before us in cross-examination that it was never agreed that the respondent would pay his car servicing costs. The applicant conceded that he had no documentation to verify the £100.00 miscellaneous expenses claim. At the beginning of his employment in February/March 2003, the applicant received from the respondent an advance of £100.00 commission pay per week for six weeks in order to assist him with the purchase of a new car. However, when the applicant's sales performance failed to meet the respondent's expectations, these advances were stopped. The applicant failed to make an unlawful deductions complaint to the Industrial Tribunal within three months of the cessation of these payments. However, the applicant's itemised pay statements for the relevant six weeks did not indicate these advance payments of commission.

    5. The Decision of the tribunal

  5. Having considered the Originating Application, the Notice of Appearance, all the evidence before it (oral and documentary) and the parties submissions, the tribunal unanimously determines as follows:-

    6. (i) Article 45(3) of the Employment Rights (Northern Ireland) Order 1996 provides:

    (3) 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 him1 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.

    (ii) The applicant has not satisfied us that there was a contractual agreement to pay his mobile phone bills or his car servicing costs. Therefore, the amounts claimed for these expenses were not properly payable by the respondent, pursuant to Article 45(3) of the 1996 Order.

    (iii) The tribunal is not satisfied there is documentation of the £100.00 miscellaneous expenses claimed by the applicant. Therefore, the tribunal is not satisfied the applicant has, on balance of probabilities, proved that the respondent violated Article 45(3) of the 1996 Order in this regard.

    (iv) Whilst the itemised pay statements for the applicant for the relevant six weeks do not reveal the advance commission payments of £600.00, the tribunal is not satisfied, on balance of probabilities, there was a contractual agreement between the parties that the respondent would pay £100.00 per week for a car allowance, and that such a weekly payment would continue for each week of the applicant's employment. Therefore, we determine there was no violation of Article 45(3) of the 1996 Order.

    (v) Accordingly, we are not satisfied that the respondent unlawfully deducted the applicant's wages, as claimed, and we therefore dismiss the entirety of the applicant's complaint in this regard.

  6. No further or other Order is made.

    7. Chairman:

    Date and place of hearing: 15 September 2004, Belfast.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/9476_03.html