THE INDUSTRIAL TRIBUNALS

CASE REF:	83/06

CLAIMANT:			Victor Bond		

RESPONDENT:		Clonduff Development Enterprises Ltd			

DECISION

The decision of the tribunal is that the claimant has not suffered unlawful deduction of wages contrary to Article 45(1) of the Employment Rights (Northern Ireland) Order 1996.   

Constitution of Tribunal:

Chairman:		Ms M Bell (Chairman sitting alone)

		
Appearances:

The claimant represented himself.

The respondent was represented by Mr S Murphy of J G O’Hare & Co., Solicitors.	

1.	The claimant claimed £3,614.60 for overtime owing to him for hours worked over the 45 hour week that he was verbally contracted to work.

2.	The respondent refuted the claimant’s entitlement to payment for overtime on the basis that the arrangement was that the claimant would be paid £525.00 for a five day week without stipulated hours.  

ISSUES

3.	The issue for the tribunal was as follows:-

(a)	Whether the claimant suffered an unlawful deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

EVIDENCE

4.	The tribunal heard evidence from the claimant, from Mrs M Savage and Mr C Mussen on behalf of the respondent, considered the contents of the claimant’s claim and the respondent’s response and a bundle of agreed documentation.  

FINDINGS OF FACT

5.	The claimant was engaged by the respondent to provide catering services as Head Chef in the Downshire Arms between March 2005 until he left in October 2005.

	The claimant’s terms of engagement were negotiated and agreed by the claimant with the respondent’s manager, Mr Alan Smith.

	The claimant was contracted by the respondent to work five days per week for £525.00 per week .  No agreement was made for overtime to be paid for hours worked in excess of 45 hours.  

	The respondent’s committee is responsible for approving and paying all wages and invoices.

At the respondent’s committee meeting on 2 March 2005, Mr Smith reported that the claimant had been appointed as Chef and agreement reached with the claimant that irrespective of the number of hours worked over a five day period he would receive £525.00 per week.

	The claimant was not required by the respondent to keep or submit time records to show hours worked by him.

	The respondent required employees paid on the basis of hours worked to keep time records of their arrival and leaving times.
	
The claimant invoiced the respondent on a weekly basis for services provided.

On invoices for the weeks ending 3 April ,2 June,16 June,14 July,25 August,8 September ,22 September, and 6 October the claimant sought payment for additional days worked in excess of the five for which he was contracted.
	 
	Mr Smith was employed by the respondent as manager between March 2005 and May 2005.

	The claimant became concerned after commencement of his engagement at the number of hours he found it necessary to work to provide services at the level required by the respondent and approached Mr Smith about this but was advised to try to ‘claw back’ excessive hours worked by taking off time when able to do so.

	In September 2005, the claimant approached Mrs M Savage, Secretary of the respondent’s committee and Mr C Mussen a member of the respondent’s committee and sought payment for overtime calculated by him due for hours worked by him in excess of 45 over the five days per week worked by him from commencement of his engagement.

THE LAW

6.	Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 provides that:-

	“An employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of the statutory provisions or a relevant provision of the workers contract, or, the worker had previously signified in writing his agreement or consent to the making of the deduction”.

THE TRIBUNAL’S CONCLUSIONS

7.	There was a dispute on fact whether it was intended or implied that the claimant be paid £525.00 for five days per week irrespective of hours worked or £525.00 for 45 hours over five days per week  with overtime to be paid at a proportionate rate.

	The tribunal is satisfied on the balance of probabilities that the claimant was engaged at the rate of £525.00 for five days per week by the respondent irrespective of the number of hours worked and that there was no term on engagement, or subsequently agreed by the respondent ,or implied into the claimant’s contract for services such that the claimant be paid for hours worked in excess of 45 in the five day period;  this being substantiated by minutes of the respondent’s committee meeting on 2 March 2005 , the evidence of Mrs Savage and Mr Mussen relating to the report made to the committee by Mr Smith on the terms agreed and the respondent not requiring the claimant to keep time records whereas the evidence of the claimant was unsupported and the claimant did not at any time invoice the respondent for hours worked in excess  of 45 in his 5 day week but did invoice for additional days worked. 

	The tribunal finds that the claimant has not suffered an unlawful deduction for unpaid overtime there being no contractual entitlement to payment for overtime.                    		

Chairman:

Date and place of hearing:	12 May 2006, Belfast.		

Date decision recorded in register and issued to parties: