THE INDUSTRIAL TRIBUNALS

CASE REFS:    6275/09
                   6974/09	

CLAIMANT:		Ruth Chibber	

RESPONDENT:	Tech 1 (NI) Limited	

DECISION

The decision is that the tribunal orders the respondent to pay to the claimant the total sum of £2,647.29. 

Constitution of Tribunal:

Chairman (sitting alone):		Ms Sheils

Appearances:

The claimant appeared and represented herself.

The respondent did not appear and was not represented.

1.	The Claim and the Defence

The claimant lodged a claim form on 3 July 2009 claiming unlawful deductions from wages and breach of contract.  This claim was accepted in part only and the claimant submitted a second claim after the expiry of the 28 day period from the date of her letter of grievance to the respondent as per the Rules 1(4)(J) and (K) of Schedule 1 of the Industrial Tribunals Rules of Procedure 2005 this second claim was lodged on 14 September 2009 in respect of unlawful deduction from wages.

The respondent did not submit a response to either claim form.

2.	Sources of Evidence

The tribunal heard sworn evidence from the claimant.  The tribunal also had sight of various documents provided to it by the claimant and documents from the Office file. 

3.	The Facts
	
	The tribunal found the following facts proven on a balance of probabilities:

(1)	The claimant commenced working for the respondent, Tech 1 NI Ltd, on 18 September 2008 as a Project Manager.  She worked 37.5 hours per week and earned £1,666.66 per month gross and £1,307 per month net.  The respondent company was small, there were only three other full time employees including the claimant.  All were aware that the company was in financial difficulties.  In April 2009 the claimant received her wages in part cash and part cheque and in May the claimant received a cheque for her wages which bounced but which was subsequently paid into her account.  Although at this stage the claimant was anxious about these anomalies the claimant was still loyal to the company and decided to remain at work on the basis that it was better to be working than not.  However on Monday 1 June 2009 the claimant turned up for work as usual but she was told that she should go home again.  The claimant was told that she would receive a weeks pay in lieu of notice and a months salary on 15 June 2009.  The claimant received no money at all from the respondent.  She wrote to them on 24 June 2009 and advised them that if she did not receive her outstanding wages she would have no alternative but to go to an industrial tribunal to secure them.  The claimant received no reply to this letter or to any of the numerous emails and telephone calls she made to them.

(2)	The claimant lodged a claim on 3 July 2009 claiming unlawful deduction from wages and breach of contract in respect her notice pay and holiday pay.  This claim was accepted in part and the claimant was advised to submit a further claim after the expiry of an 18 day period from the date of her grievance letter to the respondent (24 June 2009) the claimant subsequently lodged a second claim form in respect of the unlawful deduction from wages on 14 September 2009. 

(3)	The respondents did not submit a response to either claim.  A letter was received by the Office of Industrial Tribunals and Fair Employment Tribunal (the Office) dated 13 October 2009 from “Global Trading (NI) Ltd” advising that …”the Director of Tech 1 (NI) Limited has since gone into bankruptcy and the above company has ceased trading”.

(4)	However enquiries made by the Office to the Department for Employment and Learning confirmed that “Company registry information indicates that Tech 1 (NI) Limited, is still current and the Department had no knowledge of it going into liquidation.  The Department have no record of any applications for payment from the National Insurance Fund being received from any current or former employees of the above named company.”

(5)	The claimant also claimed holiday pay.  She stated that she had not received a contract of employment and did not know what her holiday pay or leave arrangements were.

4.	The Law

	Notice

	Under Article 118 of the Employment Rights (Northern Ireland) Order 1996 paragraph 1 states: 

118(1)	the notice requirement to be given by an employer to terminate the contract of employment to a person who has been continuously employed for one month or more is- 

(a)  not less than one weeks notice, if his period of continuous employment is less than two years.

Unpaid Wages

Article 45 of the same Order states:

45(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 virtue of the 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 a deduction.

Holiday Pay

Working Time Regulations 1998 (as amended):

The contract between an employee and an employer ordinarily states the employee’s holiday entitlement.  Where no contract of employment exists Working Time Regulations is guidance as to a worker’s holiday entitlement.

These provide workers with a statutory minimum holiday period throughout the working year.  This minimum period can include the statutory holidays that fall within that year.  

5.	Tribunal’s Conclusions

	Notice

The tribunal concludes that the claimant should receive one weeks pay in lieu of notice, £301.

Unlawful deduction from wages

The tribunal concludes, in the absence of any statutory or contractual provision or previous agreement or consent by the claimant that the claimant should receive
outstanding wages for the period of 1 May to 31 May 2009, £1,307.

Holiday pay

In the absence of contractual provision relating to the claimant’s holiday pay or leave the tribunal calculated the claimant’s leave from her start date, September 2008 and on that basis the claimant’s entitlement to holiday pay for the period of September 2008 to June 2009 is 5.13 weeks x 5 = 25.6 days ÷ 12 x 9 = 19.24 days.
However the tribunal noted that the claimant had received three days holiday and further noted that during this period there were three further public holidays.  The tribunal reduced the claimant’s entitlement to holiday pay to take account of this and order that the respondent should pay the claimant total holiday pay of 13.24 days, a total of £798.63. 

Accordingly the tribunal orders the respondent to pay to the claimant the total sum of £2,406.63.

The Law

The Employment (Northern Ireland) Order 2003, at Article 17, obliges a tribunal to increase any award made to an employee in circumstances where the non-completion of the statutory (grievance) procedure is wholly or mainly attributable to the failure of the employer by no less than 10%, and gives the tribunal a discretion to increase the award further by up to 50% if the tribunal considers it just and equitable to do so.

The tribunal thus increases the award to the claimant by an additional 10%.

Further the tribunal was mindful of the guidelines to be taken into account in the exercise of this discretion and sought to strike “the absence of hardship” between the claimant and the respondent.  The tribunal was conscious that it was required to make any further discretionary increase “in all the circumstances”.  In this case as the tribunal had found that the claimant had not only complied with the statutory grievance procedure she had gone to as many lengths as she could to retrieve the money owed to her, to which entreaties she received no reply, the tribunal decided to increase the claimant’s award up to the maximum of 50%.  In reaching this conclusion the tribunal took into account what appeared to it to be misinformation from the respondent in respect to the position of the respondent company which was, at least, unhelpful.

Accordingly the tribunal orders the respondent to pay to the claimant the total sum of £2,647.29.

6.	Interest

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

Chairman:

Date and place of hearing:	17 November 2009, Londonderry.	

Date decision recorded in register and issued to parties: