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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Colman-Holland v Taylor Transport [2009] NIIT 874_08IT (05 January 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/00874.html Cite as: [2009] NIIT 874_08IT, [2009] NIIT 874_8IT |
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CLAIMANT: Michael Colman-Holland
RESPONDENT: Trevor Taylor T/A Taylor Transport
The unanimous determination of the tribunal pursuant to Article 43 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) is that the particulars of employment which ought to have been included in a statement in compliance with Article 33 of the Order are as set out at para 23 below.
The tribunal hereby unanimously makes a declaration that the respondent has failed to give to the claimant itemised pay statements in accordance with Article 40 of the Order. Pursuant to Article 44(5) of the Order, the tribunal further finds that unnotified deductions have been made from the pay of the claimant and the respondent is hereby ordered to pay to the claimant the sum of £1,800 in respect of such unnotified deductions.
The unanimous decision of the tribunal is that the respondent made unlawful deductions from the pay of the claimant in respect of pay for holidays taken and use of the claimant’s personal mobile phone. The respondent is hereby ordered to pay to the claimant the sum of £363 in respect of such unlawful deductions.
Constitution of Tribunal:
Chairman: Ms Turkington
Members: Mr Martin
Mr Huston
The claimant appeared and represented himself at the hearing.
The respondent had not lodged a response form and did not appear at the hearing.
The Claims
The claimant brought the following claims before the tribunal:-
A reference to determine what particulars ought to have been included in a written statement of employment particulars in accordance with Article 33 of the Order.
A reference to determine whether the respondent failed to comply with the requirement to provide itemised pay statements in accordance with Article 40 of the Order.
A claim pursuant to Article 45 of the Order that unlawful deductions were made from the claimant’s pay in respect of pay for holidays taken and the claimant’s use of his personal mobile phone for business purposes .
The Issues
The issues to be determined by the tribunal were:-
Whether the respondent had failed to provide a written statement of particulars of employment in accordance with Article 33 of the Order and, if so, the tribunal was required to determine the particulars which ought to have been included in such a statement.
Whether the respondent had failed to provide itemised pay statements in accordance with Article 40 of the Order and, if so, whether the tribunal would find that unnotified deductions had been made from the pay of the claimant in the thirteen weeks immediately preceding the date of application for the reference. If so, the tribunal would then have to decide whether to order the respondent to pay to the claimant the sum of such deductions or a lesser sum.
Whether the claimant had received reduced pay for days taken as holiday and, if so, whether such reductions constituted unauthorised deductions from pay. Further, whether it was agreed that the claimant would receive payment for use of his personal mobile phone for business purposes and, if so, whether such payments were made to the claimant and, finally whether any failure to make such payments constituted unauthorised deductions from pay.
The respondent had not presented a response form and, in accordance with Rule 9 of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at 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
The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.
Facts of the Case
Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-
The claimant started his employment with the respondent on 22 January 2008. Before he began work, the claimant had a discussion with Mr Taylor in relation to pay and holidays.
The claimant never received a statement of main terms and conditions of employment.
After his first week of employment, the claimant asked for a pay slip and was told that the pay cheque was his wage slip. During the course of his employment with the respondent, the claimant never received wage slips. These were only received some months after he had left the employment of the respondent and after these proceedings had been commenced. When the claimant did receive wage slips, these showed net pay of £350 per week.
During the course of his employment, when the claimant took a day’s holiday, he was paid at a lower rate for that day. On each such occasion, the sum of £30 net per day was deducted from the claimant’s pay. The claimant took 9 days holiday during the course of his employment and the total sum deducted in this manner was £270.
On a regular basis during his employment with the respondent, the claimant had to use his personal mobile phone for business purposes. The respondent agreed to pay the claimant the sum of £5 per week in respect of such use and one payment of £20 was made to the claimant as agreed. However, the respondent did not make any further such payments to the claimant even though the claimant continued to use his mobile phone for business purposes for a further 3 months.
On 7 March 2008, the claimant wrote a letter of complaint to the respondent in which he complained to the respondent about the deduction of sums from his pay in respect of holidays taken and failure to make payment for use of his personal mobile phone.
Statement of Law
Pursuant to Article 33 of the Order, an employer shall give to the employee a written statement of particulars of employment within 2 months after the beginning of the employment.
Where the employer does not give the employee a statement as required by Article 33, the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included in a statement so as to comply with the requirements of Article 33.
Pursuant to Article 40 of the Order, an employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.
Where the employer does not give the employee a statement as required by Article 40, the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included in a statement so as to comply with the requirements of Article 40.
By Article 44 (3) of the Order, where the tribunal finds that an employer has failed to give an employee an itemised pay statement in accordance with Article 40, it shall make a declaration to that effect.
Article 44(4) and (5) of the Order states as follows:-
“(4) Where on a reference in the case of which paragraph (3) applies the tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.
(5) For the purposes of paragraph (4) a deduction is an unnotified deduction if it is made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by Article 40 or 41.”
20. By Article 45 of the 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.
21. The statutory grievance procedure set out in the Employment (Northern Ireland) Order 2003 is applicable in this case. The standard statutory grievance procedure requires the employee to put his complaint in writing to the respondent and for the respondent to invite the employee to a meeting to discuss the grievance and then an appeal meeting.
22. Pursuant to Article 17 of The Employment (Northern Ireland) 2003, where it appears to the tribunal that the non-completion of the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50%.
Conclusions
The tribunal made the following determination as to the particulars which ought to have been included in a written statement of particulars of employment:-
23. Particulars of employment
Name of Employee: Michael Colman-Holland
Name of Employer: Trevor Taylor T/A Taylor Transport
Date when Employment began: 22 January 2008
Date of Continuous Employment: 22 January 2008
Rate of pay: £350 net/£500 gross
Intervals at which remuneration is paid: weekly
Hours of work: 5.30am to 2.30 pm 5 days per week
Holidays: 24 days per annum (to include public holidays)
Sick pay: statutory sick pay only
Pension: no entitlement to pension
Notice: the statutory minimum period of notice must be given by the employer. 1 week to be given by the employee
Job title: HGV1 Driver – permanent post
Place of employment/base: 17 Carnanee Road, Templepatrick, Co Antrim
Collective agreements: there are no relevant collective agreements
Work outside the UK: the employee is not required to work outside the UK.
24. The tribunal was satisfied that the respondent had failed to provide the claimant with itemised pay statements as required by Article 40 and the tribunal makes a declaration to that effect. Further, since the claimant did not receive itemised pay statements, the tribunal concluded that deductions in respect of PAYE income tax and national insurance were made from the claimant’s pay and these deductions were unnotified as defined in Article 44(5).
25. The tribunal considered that it was appropriate in all the circumstances for it to order the respondent to pay to the claimant a sum equal to the total of all such unnotified deductions made during the period of 13 weeks preceding the date of the claimant’s claim to the tribunal. The tribunal finds that the said unnotified deductions amounted to £150 per week being the difference between the claimant’s gross pay of £500 per week and net pay of £350 per week. The claimant’s employment with the respondent ended on or about 11 June 2008 and so the tribunal finds that unnotified deductions were made for 12 out of the 13 weeks immediately prior to 17 June 2008 being the date of the claim. Accordingly, the tribunal hereby orders the respondent to pay to the claimant the sum of £1800.
26. In relation to the claim in respect of unauthorised deductions from wages, the tribunal was satisfied that the claimant had complied with the statutory grievance procedure and that the respondent failed to respond to the claimant’s written complaint.
The tribunal was satisfied that the respondent made unauthorised deductions from the claimant’s pay of £270 in respect of pay for holidays taken and £60 in respect of use of personal mobile phone for business purposes (total £330). The tribunal considers that it would be appropriate to increase its award by 10% by reason of the respondent’s non-completion of the statutory grievance procedure. Accordingly, the tribunal hereby orders the respondent to pay the sum of £363 to the claimant in respect of unauthorised deductions from pay.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 27 November 2008, Belfast.
Date decision recorded in register and issued to parties:
