THE INDUSTRIAL TRIBUNALS

CASE REF:	1594/08 IT

CLAIMANT:		Laura Haggan	

RESPONDENT:	Lincoln Recruitment Limited T/A VanRath Search & Selection	

DECISION
The decision of the tribunal (Chairman sitting alone) is that the claimant’s claim for unpaid wages is dismissed.  Mr Wayne Sullivan was dismissed as a party to and the title of these proceedings was amended accordingly.

Constitution of Tribunal:
Chairman (Sitting Alone):	Ms J Knight	

Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Ms Karen Moore of Tughans Solicitors.

Issues

The issues to be determined by the tribunal were:

1.	Whether the respondent made an unlawful deduction from wages and acted in breach of contract in failing to pay the claimant’s salary for the period from 8-15 September 2008.

2.	If so, whether the claimant failed to comply with the statutory grievance procedure and if so whether any compensation awarded by the tribunal should be reduced in accordance with the provisions of Article 17 of the Employment (Northern Ireland) Order 2003.

3.	The claimant clarified out the outset that she did not wish to pursue that part of her claim relating to unpaid commission.

Evidence

4.	The tribunal heard the oral evidence of the claimant, Mrs Haggan, and Mr Wayne Sullivan, Director of the respondent company. The tribunal took into consideration an agreed bundle of documents and the submissions made by the claimant and on behalf of the respondent.

Findings of Fact

5.	The Tribunal made the following findings of relevant fact:

The claimant Mrs Laura Haggan was employed by the respondent, Lincoln Recruitment Limited T/A VanRath Search & Selection, as a recruitment consultant from the 26 March 2008 until 15 September 2008 inclusive.  The claimant’s terms and conditions of employment are contained in a written contract dated 6 March 2008 and signed by the claimant.

Clause 3.1 of the claimant’s written contract of employment provided that the respondent would pay her a basic salary at the rate of £22,000 each year (to be reviewed in January 2009 and each subsequent anniversary thereafter) to be paid in equal monthly instalments in arrears on 28 day of each month.  Thus the claimant’s basic monthly pay was £1,833 gross and £1600 net. 

Clause 3.3 of the claimant’s contract provided that commission would be paid two months in arrears and that “you will not be eligible for commission if at the time a commission is due your employment has terminated”.

Clause 3.4 provided that “you authorise the company to deduct from your salary or from any pay in lieu of notice or any other termination payment, any sums which you may owe the company including without limitation any over payment of salary, holiday pay or expenses, any debt or loans or any other such sum or sums which may be required to be authorised in writing pursuant to the Employment Rights (Northern Ireland) Order 1996”.

Clause 4.1 of the contract provided that the claimant’s salary would be guaranteed for the first 4 months of her employment at £38,000 (pro rata £3,166 per month) and that “in the event that your employment terminates for whatever reason within the first 12 months any payments made on foot of this guarantee which are over and above your entitlement based on basic salary and commission would be refunded by you to VanRath Search & Selection”. In April, May & July 2008 she was paid the guaranteed payment in accordance with this provision.  In June 2008 she was paid her basic salary plus commission earned by her during April 2008.  In August 2008 the claimant was paid at the basic rate.

The claimant gave one week’s notice to the respondent on 8 September of her intention to terminate her employment with effect from 15 September 2008.  The tribunal accepted that the claimant was told that she would receive any monies due to her when the wages were paid on the 28th September. However the tribunal equally accepted Mr Sullivan’s evidence that the wages department informed him around about the 22 September that the respondent was entitled to claim a refund from the claimant amounting to £3,349 in respect of the guarantee payments in excess of her basic salary and commission earned. On learning this, Mr Sullivan requested a meeting with the claimant on 23 September 2008 to discuss this. He provided her with a written breakdown of the figures involved. He explained that her September 2008 wages would be offset against this sum. Mr Sullivan described the meeting as “cordial” and that it was agreed at the end that the claimant would come back to him with proposals to pay off the outstanding balance. The claimant disputed this and told the tribunal that she was shocked that her employer was seeking to recover monies under clause 4.1 as she felt that the respondent should have offset this against commission earned by her but which would not be paid by virtue of Clause 3.3of her contract.

The claimant subsequently sought legal advice and correspondence was sent from her solicitor to the respondent seeking an unspecified amount in respect of unpaid wages.

The claimant subsequently lodged proceedings with the Office of Industrial Tribunals and the Fair Employment Tribunal seeking the payment of £930 representing the claimant’s gross earnings for September’s salary until 15 September 2008.  The parties agreed at the hearing that the net figure concerned as £698.43. Ms Moore argued that the respondent was in the circumstances contractually entitled withhold payment of the claimant’s salary and that this did not amount to an unlawful deduction from wages.

The Law

6.	Article 45-(1) of the Employment Rights (Northern Ireland) Order 1996 provides that “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 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.

 (2)  In this Article "relevant provision", in relation to a worker's contract, means a provision of the contract comprised—  
(a) 	in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question….”

Conclusions

7.	The Tribunal is satisfied that the claimant by virtue of her written contract of employment does provide express prior authorisation to the respondent to deduct any sums owed by her to the company from her salary.

8.	The claimant accepted at the hearing and the tribunal was satisfied that by virtue of the clause 4.1 of her contract of employment that she was required to refund to the respondent any payments of guaranteed salary over and above her entitlement based on basic salary and commission in the event that her employment terminated within the first 12 months.  Therefore as the claimant had in fact terminated her contract within the first 12 months the Tribunal concluded that the respondent did not act in breach of contract in offsetting the claimant’s salary for September 2008 against the sums owed by her.

9.	In these circumstances it is not necessary for the tribunal to determine whether the claimant failed to comply with the statutory grievance procedures.

10.	The claimant’s claim is dismissed in its entirety.

Chairman:

Date and place of hearing:	24 March 2009  Belfast	

Date decision recorded in register and issued to parties: