THE INDUSTRIAL TRIBUNALS

CASE REF:    1256/13 

CLAIMANT:	Raphael Reilly

RESPONDENTS:	1.  Biz Advertising and Distribution Limited
	2.  Natalie Magee  
	3.  Anthony Vernon

DECISION

The decision of the tribunal is that the claimant is entitled to an award of £3,281.04 in respect of unauthorised deduction of wages/breach of contract, notice pay and holiday pay.

Constitution of Tribunal:

Chairman (Sitting alone):	Mr I Wimpress

Appearances:

The claimant appeared in person and was not represented.

The respondent did not attend the hearing and was not represented.

PRELIMINARY ISSUE

1.	The title of the proceedings is amended as it is clear that I am satisfied that the first respondent Biz Advertising and Distribution Limited is the claimant’s employer and is the correct respondent.  Natalie Magee and Anthony Vernon are directors of the first respondent which is a limited company.  Accordingly, the second and third respondents are dismissed from the proceedings.

SOURCES OF EVIDENCE

2.	The tribunal heard oral evidence from the claimant and received a number of relevant documents from him.

THE CLAIM AND THE RESPONSE

3.	The claimant brought claims for unlawful deduction of wages, non-payment of expenses, notice pay and holiday pay arising from the termination of his employment with the respondent.  The respondent did not file a response and did not attend the hearing.

THE FACTS

4.	The claimant was recruited as a Sales Executive by the respondent business which wanted to replicate its success in Edinburgh in the North Belfast area.  The claimant answered an advertisement for a salaried position via a jobs website known as gumtree.com.  The claimant was interviewed for the position by Mr Vernon’s father, Mr Chris McVickers, of Pentagon Solutions.  The claimant was offered the position which mainly involved selling advertising space to local businesses. The remuneration package was £15,000 per annum gross (£1,250 per month net) plus a mileage allowance of 45 pence per mile.  A bonus structure based on achievement of monthly financial targets was also included in the package but is not material for the purposes of these proceedings because the target figure was never attained.

5.	The claimant took up employment with the respondent on 7 February 2013.  He did not receive his February pay and was not paid anything at all until 27 March 2013 when he received £1,100 by BACS payment.  The claimant was not provided with a wages slip or a breakdown of his pay.  Although this sum would appear to represent net pay after deduction of income tax and national insurance payments the claimant was doubtful as to whether any proper deductions were made but in any event a tribunal could not conceivably award a gross amount in respect of non payment of wages.  No payment whatsoever was made in respect of the claimant’s travel expenses and there was no further payment of wages to the claimant.

6.	The claimant made contact with the directors mainly via Facebook about their failure to pay him but they made excuses about cash flow and sought to place the blame on the claimant for not generating enough sales.  The claimant offered to accept part payment of his wages immediately with the remainder paid later as a compromise but this offer was not taken up.

7.	Despite the respondent’s failure to pay the claimant his wages either on time or at all, the claimant continued to work until the April pay date (18 April 2013) but no further payment was made.  At this point the claimant decided that he could no longer afford to travel at his own expense and stopped working for the respondent.  The claimant then wrote to the respondent and set out the basis of his entitlement to the payment of his outstanding salary, expenses and notice pay.  While it might appear surprising that the claimant continued to work without regular payment of salary he explained that it was in his best interests to make a success of the job and he was determined to publish the next edition of the magazine so that he could add this as an achievement in his CV portfolio.

THE LAW

8.	Unauthorised Deduction from Wages

	Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides as follows:

		"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 as follows:

		"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".

9.	Breach of Contract

	The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 confers jurisdiction on industrial tribunals to hear claims for breach of contract and Article 3(c) provides as follows:-

		"Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for sum due in respect of personal injuries) if –

		(c) the claim arises or is outstanding on the termination of the employee's employment."

10.	Notice Pay

	Article 118 of the Employment Rights (Northern Ireland) Order 1995 makes provision in relation to notice periods as follows:-

		“118.—	(1)	The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— 

				(a)	is not less than one week's notice if his period of continuous employment is less than two years, 

				(b)	is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and 

				(c)	is not less than twelve weeks' notice if his period of continuous employment is twelve years or more. 

			(2)	The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week.”

CONCLUSIONS

11.	I am satisfied that the claimant’s claim is made out and that he is entitled to an award for unlawful deduction of wages, non-payment of expenses and holiday pay.  The non-payment of wages and expenses also fall within the tribunal’s breach of contract jurisdiction and I am satisfied that the claimant complied with the procedural requirements of that jurisdiction.  The claimant resigned from his position without notice and ordinarily therefore would not be eligible for notice pay.  However, the employer had effected a fundamental breach of the claimant’s contract by failing to pay his wages either on time or at all.  The claimant would therefore have been able to claim constructive dismissal had he wished to do so.  In these circumstances the claimant was not required to give notice but is entitled to one week’s notice pay.

AWARD

12.	Non Payment of Wages	£2,200.00

	Travel Expenses	   £589.50 (1,310 miles @ 45 p)

	Notice Pay	   £261.54

	Holiday Pay (4 days)	   £230.00

	Total	£3,281.04

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

Chairman:

Date and place of hearing:       18 September 2013, Belfast.

Date decision recorded in register and issued to parties: