Lange v  E & J Drylining Ltd [2008] NIIT 1242_07IT (22 January 2008) 

THE INDUSTRIAL TRIBUNALS

CASE REF:	1242/07

CLAIMANT:			Tadeusz Lange

RESPONDENT:		E & J Drylining Ltd

DECISION
The unanimous decision of the tribunal is that the claimant has suffered unlawful deductions of wages in that the respondent has failed to pay the claimant for all the hours he worked, deducted money without the claimant’s consent, failed to pay him for holiday entitlement, and did not pay him pay in lieu of notice.  The tribunal also finds that the respondent was in breach of the statutory grievance procedures under the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.  Accordingly the tribunal orders the respondent to pay the claimant the sum of £1,236.76, increased by 45% under the provisions of the Employment Rights (Northern Ireland) Order 2003, making a total of £1,793.30.

Constitution of Tribunal:
Chairman:		Miss E McCaffrey
Members:		Mr E Grant
			Mr A Crawford

Appearances:
The claimant was represented by Ms Maguire of The Law Centre.
The respondent did not enter any response and was not represented.
The translator was Mr Danek.

ISSUES

The claimant made a number of claims which were as follows:- 

1.	The claimant argued that he had suffered unlawful deductions from his wages in respect of cost of diesel and insurance for travelling to work via to work in Belfast.

2.	The respondent had failed to pay him for all the hours he had worked.

3.	The respondent had failed to pay the claimant in respect of holidays accrued and taken.

4.	The respondent had dismissed the claimant without notice and without paying him in lieu of notice.

5.	The respondent had breached the statutory agreements procedures under the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

FACTS

1.	The claimant, who is Polish, gave evidence to the tribunal through the translator, Mr Danek, and the tribunal is grateful to both of them for their evidence.

2.	The claimant was employed as a construction worker by the respondent from 9 October 2006 until 15 February 2007.  The claimant was not provided with any contract of employment detailing his rate of pay, his hours of work etc.  The only documents he received were his paycheques and payslips.  He was paid every two weeks rather than every week and was asked to work long hours but was not paid for all of the hours that he worked.  The claimant became aware that when someone complained about the hours worked they were told by the boss to go back to the vans and go back to work.  
3.	The claimant indicated that he was initially happy with his work but then his earnings started to drop.  He was asked to work in Belfast initially and then in Omagh.  It was unclear as to exactly how many hours the claimant worked because it varied.  However on occasion he worked up to 9 hours a day and while he normally worked five days per week, on occasion he would be asked to work Saturdays as well, but this was not a regular commitment.  The tribunal therefore finds as a fact, based on the claimant’s evidence and on the calendar he kept showing his hours of work, that the claimant usually worked five days per week and worked on average nine hours a day, making an average working week of 45 hours per week.  His payslip shows he was paid at the gross rate of £7 per hour.

4.	Because of his concerns that he was not being paid correctly for the hours he had worked, the claimant started keeping a note of the hours he worked each day and noted these on a calendar. In the two weeks up to 29 December 2006 he noted that he worked 50 hours but was paid for 22.5 hours, he was therefore not paid for 27.5 hours making a shortfall of £192.50 gross or £183.15 net according to his representative.  In the two weeks to 26 January 2007 he worked 80.5 hours and was paid for only 64.5 hours, he was therefore not paid for 16 hours at £7 per hour making a shortfall of £112.00 gross or £84.07 net according to his representative.  In the two weeks to 9 February 2007 he was also underpaid by 10 hours, making £70 gross or £53.54 net.

5.	The claimant returned to Poland over the Christmas break, he left on 24 December and returned on 2 January, recommencing work on 3 January 2007.  Eight of those days would normally have been working days.

6.	When the claimant returned to work in January 2007, he realised that the payslip for the early January period had a handwritten note showing a deduction of £64 for diesel and insurance.  Two weeks later, he received another payslip showing a deduction of £32 for diesel and insurance.  The pay which he received on 9 February showed a reduction of £64 for diesel and insurance.  The claimant confirmed that he had never signed any document agreeing to these deductions.  

7.	In February 2007, the claimant became concerned that he was not getting clear answers in relation to his pay.  The foreman would not give him or his colleagues any answers and advised them to go to the company office the following Monday, 19 February.  The claimant confirmed that the foreman signed his timesheet each week, showing the correct hours he had worked.  When he went to the office, the claimant spoke to his boss, Eddie Duffy, and asked why he was not being paid for the correct hours worked.  Mr Duffy sacked the claimant on 19 February 2007 because he had complained about not being paid correctly.
8.	The claimant subsequently went to his employer’s office to collect his P45.  By that stage Michael Roddy from the Omagh Independent Advice Service had sent a grievance letter to the respondent on the claimant’s behalf.  When the claimant called at the office to collect his cheque, Mr Duffy, his boss, showed him the grievance letter which he had received, tore it up and told the claimant to “Fuck off”.  The second grievance letter was sent on the claimant’s behalf on 23 March 2007 in relation to the issue of non-payment of pay, lack of notice before dismissal and any accrued holiday entitlement.  The claimant never received any response to these letters.

RELEVANT LAW

9.	The relevant law is to be found in the Articles 45 and 46 of the Employment Rights (Northern Ireland) Order 1996 which make it clear that employers must not make any reductions from employees’ wages unless these have been agreed in advance and authorised in writing by the employee.  

10.	Further under the Working Time Regulations 1998 (as amended) each employee is entitled to 20 days’ paid leave in the year.  Under regulation 15A, during the first year of employment, leave is deemed to accrue at the rate of one-twelfth of the amount specified in regulation 13 (1) on the first day of each month that year.  In the claimant’s case, as he worked from 9 October 2006 until 19 February 2007, he had worked four months and is entitled therefore to one third of his annual leave entitlement.  Rounding up the entitlement to leave, this means that he was entitled to seven days’ paid leave at the date of his dismissal.  He had taken eight days’ holidays, but had not been paid for this period of time.

11.	Under Article 118 of the Employment Rights (Northern Ireland) Order 1996, the claimant was entitled to be given notice of dismissal.  For the length of service he had accrued, the relevant length of notice is one week or pay in lieu of notice.

DECISION

12.	The decision of the tribunal is that the claimant has suffered unlawful deductions from his wages in two respects.  First of all, he was penalised in relation to travel costs for diesel and insurance which he had not agreed to pay, and secondly, he was not paid for all the hours which he had worked.  Thirdly, the claimant was not paid for seven days’ holiday to which he was entitled.  Although he had actually taken his leave over the Christmas period, he was not paid.  Fourth, he was not given notice when he was dismissed and was not paid in lieu of that notice given the length of his service he would have been entitled to a week’s notice.

13.	Accordingly the tribunal orders the respondent to pay the claimant compensation in the following amounts:-

(a)	Payment for diesel and insurance – 

12 January 2007 		=		£ 64.00

26 January 2007		=		£ 32.00

9 February 2007		=		£ 64.00

Total						£160.00

(b)	Hours worked but not paid as follows:-

Until 29 December 2007 - 27.5 hrs @ £7 per hour = 
£192.50 Gross

£183.15 Net

Until 26 January 2007 – 16 hrs @ £7 per hour = 

£112.00 Gross

£84.07 Net

Until 9 February 2007, 10 hrs @ £7 per hour =
£70.00 Gross

£53.54 Net

Total								£320.76 

(c)	Holiday entitlement – seven days paid leave (9 hours a day @ £7 per hour = 63 per day x 7 days) =			£441.00 Gross

(d)	One week’s notice pay = 45 hrs per week @ £7 per hour = 

£315.00 Gross

The tribunal is not in a position to judge the net amount and therefore makes an award in the gross amount as stated above.  

TOTAL									£1,236.76

14.	The tribunal also find that the respondent has failed to comply with its obligations to follow the statutory grievance procedure in respect of the respondent’s claims for unauthorised deductions of wages, breach of contract and breach of the Working Time Regulations 1998 (as amended) contrary to Schedule 2 of the Employment (Northern Ireland) Order 2003.  Article 17 of that Order specifies as follows:-

“If in the case of proceedings to which this Article applies, it appears to the industrial tribunal that –

(a)	the claim to which the proceedings relate concerns the matter to which one of the statutory procedures applies,

(b)	the statutory procedure was not completed before any proceedings were begun, and

(c)	the non-completion of the statutory procedure was wholly and mainly attributable to failure by the employer to comply with the requirement of the procedure, 

it shall , subject to paragraph (4), increase in the award which it makes to the employee by 10% and may, if it considers it just and inequitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.

“(4)	The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and inequitable in all the circumstances.”

15.	In this case the claimant fulfilled the initial step of the statutory grievance procedures by setting his grievance out in writing and sending it to the employer by way of letters dated 1 March and 23 March 2007.  The respondent did not respond to these letters.  Indeed, when the claimant, whose English is limited, attempted to raise his grievances with the respondent in person, he was summarily dismissed.  When he sought advice, and grievance letters were sent on his behalf, the claimant then suffered the indignity of his grievance letter being torn up in front of him by his employer.  The employer used foul language and treated the claimant’s letter with contempt.

16.	In all the circumstances of the case the tribunal believes that it would be appropriate to increase the award by 45% and the tribunal therefore orders the respondent to pay the claimant an additional sum of £556.54, making a total of £1,793.30. 

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

Chairman: 

Date & Place of Hearing:		3 December 2007, Omagh

Date decision entered in register and issued to the parties: