THE INDUSTRIAL TRIBUNALS

CASE REF:  01080/08

CLAIMANT:		David Glover

RESPONDENT:	Browns Removals & Storage Ltd, T/A Archer Removals & Storage

DECISION

The unanimous finding of the tribunal is that the claimant suffered an unlawful deduction from his wages of £595.78 and the respondent is ordered to pay to the claimant the sum of £595.78. 

Constitution of Tribunal:

Chairman:	Mr B Greene

Members:	Mrs L Gilmartin
Mr Hanna

Appearances:

The claimant was neither represented nor in attendance.

The respondent was represented by Mr Fenton Archer, from the respondent company.

Sources of Evidence

 1.	The tribunal heard evidence from Mr Fenton Archer for the respondent.  The tribunal also received two bundles of documents amounting to ten pages.  

The Claim and Defence

 2.	The claimant claims for unpaid wages, holiday pay, notice pay and constructive dismissal.  The respondent resists the claimant’s claims in its letter to the Office of the Tribunals faxed on 30 September 2008 with attachments, and seeks to set off monies due to the claimant against a loan given to the claimant by a previous employer.  The respondent’s letter has been accepted as its response.

 3.	The Office of the Tribunals rejected the claimant’s claim for constructive dismissal on 19 August 2008.  The claimant did not seek to challenge that rejection.  

 4.	Although the claimant was not in attendance nor represented, the tribunal was satisfied that he was notified of the hearing by letter of 7 November 2008.

 5.	Issues

(1)	Did the claimant suffer an unlawful deduction from his wages?

(2)	Is the claimant entitled to notice pay?

(3)	Is the claimant entitled to holiday pay for untaken leave?

	(4)	Did the claimant suffer a breach of his contract of employment by not being paid his final wages and holiday pay for untaken leave.

 6.	Findings of Fact

(1)	The claimant is a driver (HGV) and porter by occupation and in recent years worked in the furniture removal business.

(2)	From late 2006 until May 2007 the claimant worked for a furniture removal business called Archer Removals.  Mr Fenton Archer owned that business.

	(3)	In February 2007 the claimant borrowed £1,000 from Fenton Archer to get his car fixed.  The loan was paid through the business and was to be repaid within a few months.  The parties did not commit this agreement to writing.  

	(4)	The claimant left the employment of Archer Removals in May 2007 without having made any repayments of the loan despite a number of requests so to do.

	(5)	When the claimant left Archer Removals he was owed £233.77 in wages.  This was not paid to the claimant and was set off against the £1000 loan.  The claimant apparently did not challenge this.  The claimant thereafter owed Archer Removals £766.23.

	(6)	In November 2007 the claimant obtained employment with Browns Removals as a driver.  From November 2007 to April 2008 the claimant had not paid any further amounts off his loan.  Mr Fenton Archer had nothing to do with Browns Removals.

	(7)	In April 2008 a new company was established, the respondent in these proceedings.  It was formed following a take-over of Browns Removals by Archer Removals.  The new company took over all the assets and employees of Browns Removals, including the claimant.  Mr Fenton Archer now ran the new company.

	(8)	In or about May 2008 Mr Archer broached with the claimant the issue of repayment of the remainder of the outstanding loan and the claimant said he would sort it out.

	(9)	The claimant resigned from the respondent company, effective from 6 June 2008.  In his originating claim, the claimant sets out a number of matters which he says led to his resignation.  In his evidence to the tribunal, Mr Archer offered explanations for these matters.  It is not necessary for the tribunal to adjudicate as to the truth of these contentions and counter-contentions as there is not a claim for constructive dismissal before the tribunal.

	(10)	When the claimant left the employment of the respondent he was owed £283.14 in wages and £312.64 holiday pay.  This totalled £595.78.  However the respondent did not pay this amount to the claimant and has set it off against the £766.23 owed by the claimant to Archer Removals.  The respondent states that the claimant now owes it £170.45.

	(11)	Although the claimant says Mr Archer approached him when the respondent took over Browns Removals and told him that there would be no animosity from the previous employment Mr Archer did not tell him that the outstanding loan was no longer owed.

(12)	The claimant gave notice of his resignation to expire on 6 June 2008.  He worked until 5 June 2008 when he said that he would not be reporting for work on the following day, the 6 June 2008.

	(13)	The respondent does not dispute that at the time of termination of his employment that the claimant was owed unpaid wages and holiday pay amounting to £595.78.  It wishes to set that amount off against the remainder outstanding of the loan made to the claimant by a previous employer, Archer Removals.  

 7.	The Law

(1)	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 statute or a relevant provision of the worker’s contract, or

(b)	a worker has previously signified in writing his consent to the making of the deduction.  (Article 45 The Employments Rights (Order) 1996).

	(2)	A worker may receive payment for untaken leave on termination of his employment (Regulation 13A, (6) Working Time Regulations (Northern Ireland) 1998).

(3)	An employee may bring a claim for the recovery of damages for any sum which is due or is outstanding on the termination of the employee’s employment.  (Article 3 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).

	(4)	An employer may bring a claim for the recovery of damages for any sum due on the termination of the employee’s employment where a claim has been made to an Industrial Tribunal by the employee and it is a claim to which Article 57(2) of the Industrial Relations (No 2) (Northern Ireland) Order 1976 applies (Article 4 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).

	(5)	Under Article 57(2) of the Industrial Relations (No 2) (Northern Ireland) Order 1976 a claim by an employer for breach of contract applies to any of the following claims:-

(a)	a claim for damages for breach of a contract of employment or any other contract connected with employment; or

(b)	a claim for a sum due under such a contract; or

	(c)	a claim for the recovery of the sum in pursuance of any statutory provision relating to the terms or performance of such a contract.

(6)	An employee shall not present a complaint to an Industrial Tribunal under a jurisdiction under which the grievance procedure applies if he has not served a grievance and allowed 28 days to pass before presenting his claim (Article 19(3) The Employment (Northern Ireland) Order 2003).  

	(7)	An Industrial Tribunal shall not consider a complaint presented in breach of Article 19(3) of the Employment (Northern Ireland) Order 2003 if it is apparent to the tribunal from the information supplied to it that the employee is in breach of Article 19(3) or where the employer raises the issue of compliance (Article 19(6) The Employment (Northern Ireland) Order 2003).

 8.	Application of the Law and Findings of Fact to the Issues

(1)	The claimant, on termination of his employment on 6 June 2008, was owed £595.78, being unpaid wages of £283.14 and holiday pay for untaken leave of £312.64.  The tribunal accepts the respondent’s figures as the claimant has not proved alternative figures on the balance of probabilities.  

	(2)	There was not any evidence before the tribunal that the claimant is owed notice pay and that element of the claimant’s claim is dismissed.

(3)	As it was not apparent that the claimant had not complied with the requirements of Article 19 of the Employment (Northern Ireland) Order 2003 and the respondent has not raised the issue of compliance the tribunal accepts that the claimant has satisfied the statutory grievance procedure.

	(4)	The respondent has not satisfied the tribunal that the requirements of Article 45 of the Employment Rights (Northern Ireland) Order 1996, which permit an employer to make deductions from an employee’s wages, have been met.  In particular the respondent has failed to show that the non-payment by the respondent to the claimant of £595.78 was a deduction;-

(i)	authorised by virtue of a statutory provision, or

(ii)	authorised by a provision of the claimant’s contract of employment, or

(iii)	to which the claimant had previously signified his consent in writing to make.

(5)	The claimant has thus suffered an unlawful deduction from his wages.  That includes, in the absence of any evidence to the contrary, his holiday pay.  In such circumstances it is unnecessary for the tribunal to decide whether these sums could be recovered as a breach of contract or under the Working Time Regulations (Northern Ireland) 1998. 

	(6)	In his response the respondent has not sought to make a counterclaim.  However as the respondent was not legally represented the tribunal treated his response as making a counterclaim for the sum owed by the claimant to Archer Removals.

	(7)	The tribunal is not persuaded that the respondent has satisfied the requirements of Article 57(2) of the Industrial Relations (No. 2) (Northern Ireland) Order 1976.  In so concluding the tribunal had regard to the following matters;-

(i)	the respondent’s claim does not arise from a breach of the contract of employment between the claimant and the respondent.

(ii)	the claim does not arise from a breach of a contract connected with the contract of employment between the claimant and the respondent.

(iii)	the claim is not for a sum due under this contract of employment.

(iv)	the claim is not for a sum in pursuance of any statutory provision relating to the terms of performance of the contract of employment.

(8)	The sum of £595.78 is not due on the termination of the employee’s contract of employment with the respondent but arises from a contract with another party.  Therefore the respondent cannot bring a counterclaim under the industrial tribunal’s breach of contract jurisdiction (Article 4 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994). 

	(9)	As the claimant has suffered an unlawful deduction and the respondent cannot counterclaim for that amount the respondent is ordered to pay to the claimant £595.78 for unpaid wages and untaken holiday leave.

 9.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing:	11 February 2009, Belfast.

Date decision recorded in register and issued to parties: