THE INDUSTRIAL TRIBUNALS

CASE REF:	654/13IT	
	
CLAIMANT:			Carolynn Rooney

RESPONDENT:		Axis Three Limited 

DECISION

The decision of the tribunal is as follows:-

1.	The respondent is ordered to pay to the claimant in respect of unpaid wages the sum of £4106.45.

2.	The respondent is ordered to pay to the claimant in respect of pension contributions the sum of £6875.

Constitution of Tribunal:

Chairman (sitting alone):		Ms J Turkington 

Appearances:

The claimant appeared and represented herself at the hearing. 
 
The respondent did not appear at the hearing.  The respondent had lodged a response form, but had indicated that it did not intend to appear at the hearing.

The Claim

The claimant brought the following claim before the tribunal:- 

1.	A claim in respect of unpaid wages in respect of the months of August 2012, November 2012 and December 2012.

2.	A contractual claim in respect of sums due to the claimant in respect of pension contributions.	 

The Issues

The issues to be determined by the tribunal were:-

3.	Whether the claimant’s claims in respect of unpaid wages for the months of August and November 2012 were in time.  Whether the respondent failed to make payment in full to the claimant in respect of wages earned during these months and the month of December 2012 and, if so, the amount of such unpaid wages.  Whether the respondent failed to pay wages to the claimant in respect of the period of notice worked by her and the amount of any unpaid wages.

4.	Whether the respondent had failed to make payments into the claimant’s pension in accordance with her contract of employment.

Disposal of the claim in the absence of the respondent

5.	The respondent did not appear at the hearing.  The respondent had lodged a response form, but an e-mail from the respondent’s representative the day before the hearing indicated that the respondent would not be attending the hearing.  This e-mail indicated that the respondent appreciated that the tribunal would enter judgment in its absence whether or not the hearing proceeded. The respondent did not seek a postponement of the hearing. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

6.	The tribunal heard oral evidence from the claimant and considered the content of the claim form and the response form together with the e-mail correspondence received from the respondent and a number of documents submitted by the claimant.  The e-mail from the respondent’s representative to the Office dated 
28 May 2013 noted that the respondent “has accepted liability in relation to all of the claimant’s monetary claims”.  This correspondence further indicated that the respondent was “teetering on the brink of insolvency”.

Facts of the Case

Having considered all the evidence before it, the tribunal found the following relevant facts:-

7.	The claimant started her employment as Financial Controller with the respondent in September 2009. The claimant received a contract of employment which confirmed that her salary was initially £62,500 per annum and this salary was to accrue from day to day and was to be payable in equal monthly instalments.  

8.	By clause 3.3 of the contract, the respondent agreed to contribute at regular intervals a total of 6% of the claimant’s basic salary into a pension scheme nominated by the claimant.  

9.	At the beginning of her employment, the claimant worked full-time.  From September 2012, the claimant was working half-time hours and was earning half the salary specified in her written contract.  The claimant did not receive any pay slips after August 2012. 

10.	When she received her pay for August 2012, the claimant received only £1500 and her pay was therefore £1904.84 short of the net pay she should properly have received.  When the claimant complained about the shortfall, she was told by the respondent that she would be paid out of the next trading period.  

11.	For the months of September and October 2012, the claimant received the full pay due to her in respect of the half-time hours worked.  

12.	In November 2012, the claimant received £1788.73 net which was £382.18 short of the full net pay she was entitled to.

13.	The claimant resigned from her employment with the respondent on 
5 December 2012, but indicated that she intended to work through her notice period until the end of December.  The claimant did work throughout December 2012, but received no pay for that month.  She was told that her pay was being calculated, but pay for December was never received.

14.	In respect of pension contributions, these were paid sporadically during the claimant’s employment.  During the period of the claimant’s employment, total pension contributions of £11,875 (at the contractual rate of 6%) should have been paid by the respondent.  A total of £5000 was either sacrificed in favour of shares or paid into the claimant’s pension.  This leaves a total of £6875 which was not paid.  These figures were accepted in correspondence from the respondent to the claimant. 

15.	The claimant’s claim form was presented to the tribunal on 29 March 2013.

Statement of Law

16.	By Article 45 of the Employment (Northern Ireland) Order 1996 (“the 1996 Order”), 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.

17.	By article 55(2) of the 1996 Order, an Industrial Tribunal shall not consider a complaint in respect of a deduction from wages unless it is presented before the end of the period of 3 months beginning with the date of the last deduction in a series of deductions.

18.	Under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”), proceedings may be brought before a tribunal in respect of a claim of an employee for the recovery of any sum due under the employee’s contract provided that the claim is outstanding on the termination of the employee’s employment.  Such a claim can be brought within three months of the effective date of termination of the employee’s employment.

Conclusions

19.	The tribunal considered whether the claimant’s claims in respect of her pay for August 2012 and November 2012 were out of time.  The claimant’s claim was not presented to the tribunal until 29 March 2013 which is more than 3 months after these payments were due. The tribunal considered that the deductions from pay in August and November could be considered as part of a series of deductions which continued in December 2012.  In the alternative, and should the tribunal be incorrect in the former conclusion, it took the view that the deductions from pay in August and November were in effect a contractual claim which remained outstanding at the termination of the claimant’s employment.  In other words that this claim could in the alternative be brought under the 1994 Order.  The claim in respect of the claimant’s December pay was clearly in time having been brought within 3 months of the date this payment was due.

20.	The tribunal had no difficulty in concluding that sums had been unlawfully deducted from the claimant’s pay in August 2012, November 2012 and December 2012.  The total sums unlawfully deducted from the claimant’s wages is as follows:-

August 2012
             Net pay properly payable          	£3404.84
             Less pay actually received      	£1500.00
             Amount unlawfully deducted =  	£1904.84
          
November 2012
             Net pay properly payable          	£2170.91
             Less pay actually received       	£1788.73
             Amount unlawfully deducted =  	£  382.18
             
December 2012
             Net pay properly payable          	£1819.43
             Less pay received                     	     NIL
             Amount unlawfully deducted    	£1819.43

             Total of unlawful deductions =  	£4106.45. 

	The total sum due to the claimant by the respondent in respect of unpaid wages (alternatively damages for breach of contract) is £4106.45 (net).  The respondent is therefore ordered to pay to the claimant the sum of £4106.45.

21.	The tribunal concluded that the respondent had failed to make payments of pension contributions of £6875 due under the claimant’s contract of employment.  The respondent is therefore ordered to pay the sum of £6875 to the claimant.

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

Chairman:

Date and place of hearing: 29 May 2013, Belfast.

Date decision recorded in register and issued to parties: