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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bennett v WASP Solutions Limited [2013] NIIT 01331_13IT (27 September 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1331_13IT.html Cite as: [2013] NIIT 1331_13IT, [2013] NIIT 01331_13IT |
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CASE REF: 1331/13
CLAIMANT: Andrew Bennett
RESPONDENT: WASP Solutions Limited
DECISION
The claimant has suffered an unauthorised deduction from wages and loss as the result of a breach of contract by the respondent in failing to give the claimant proper notice of termination of his employment and to pay the claimant wages and holidays accrued due on termination of his employment. When proceedings were commenced the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. The respondent shall pay the claimant £3,224.80.
Constitution of Tribunal:
Chairman (sitting alone): Ms M Bell
Appearances:
The claimant appeared in person.
The respondent did not appear and was not represented.
1. The claimant in his claim complained that he had not received one weeks’ notice pay, two weeks holiday pay and eight weeks arrears of pay due to him on termination of his employment.
2. No response was presented by the respondent.
3. At hearing the claimant confirmed that he was employed by Wasp Solutions Limited and the title of the respondent is accordingly amended from WASP Solutions to WASP Solutions Limited.
ISSUES
4. The issues before the tribunal were whether the claimant had suffered an unauthorised deduction and or breach of contract in respect of:
· Pay due from the respondent?
· Proper notice of termination of his employment?
· Pay for holidays accrued due on termination of his employment? and,
· If so, what loss had the claimant suffered?
EVIDENCE
5. The tribunal considered the claim, documentation from the claimant including bank statements and payslips and heard oral evidence from the claimant.
FINDINGS OF FACT
6. The claimant was interviewed by the respondent on a Friday and commenced employment with the respondent on the Monday morning as a software developer from about 14 January 2013 until 8 May 2013. It was verbally agreed between the claimant and Mr Warren Dowey on behalf of the respondent that the claimant would work 9am to 5pm Monday to Friday and be paid at £6.19 per hour for January 2013 and thereafter a higher amount based on an annual salary which the tribunal is satisfied was £18,700.00 as reflected by the claimant’s second payslip, being £71.92 gross per day and approximately £58.66 net. No specific agreement was made by the claimant with the respondent regarding his holiday entitlement and the claimant was not at any stage during or after his employment provided with a written statement of initial employment particulars.
7. The claimant received a payslip from the respondent dated 31 January 2013 for 112.50 hours worked paid at a rate of £6.19 amounting to £696.38 being £684.90 net, however no payment was forthcoming despite numerous approaches made by the claimant to Mr Dowey to ask for the payment outstanding to him.
8. The claimant
received a second payslip from the respondent dated
28 February 2013 for £1,558.33 gross being £1,271.01 net, he did not however
receive payment of the net amount until 2 April 2013 by bank transfer into his
current account.
9. The third payslip received by the claimant was dated 28 March 2013 for £1,200.00 gross being £1,027.28 net, he later received a payment of £1,027.28 by bank transfer on 19 April 2013. The claimant was unable to attend his work premises for ten days in March 2013 which he attributed to a lack of money to get there resulting from the respondent’s failure to pay him. The claimant’s pay for March was reduced to reflect the ten days he did not attend the respondent’s premises. No further payslips or payments were received by the claimant from the respondent.
10. On 8 May 2013 the claimant asked if he could attend an appointment he had arranged with the Housing Benefit Office to enquire about obtaining help with his rent as he believed that he was on the verge of being evicted, Mr Dowey however in response dismissed the claimant immediately without notice.
11. The claimant worked for the respondent for approximately 77 days during which time other than the ten days he did not attend work in March and for which his pay was reduced, he was absent on his evidence no more than three days in connection with family matters, he did not take any other paid leave.
12. At the date of termination of his employment the claimant had not received pay due for January, the month of April and one week in May 2013 and has not received payment since.
13. The claimant presented his claim to the Office of the Tribunals on 9 July 2013.
THE LAW
14. An employer is required to give an employee who has been continuously employed for one month or more minimum notice to terminate the contract of employment of not less than one week where his continuous period of employment is less than two years under Article 118 (1)(a) of The Employment Rights (Northern Ireland) Order 1996.
15. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.
16. Article 45 of the Employment Rights (Northern Ireland) Order 1996 provides for a worker’s right not to suffer unauthorised deductions from wages by his employer. A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.
17. The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulations 13 and 13A for a worker to have minimum leave in a leave year from 1 April 2008 of 5.6 weeks and in the absence of provisions of a relevant agreement for the worker’s leave year to begin on their start date where it is after 23 November 1998. Under Regulation 14(2) where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with the formula set out at paragraph (3) in the absence of provision in a relevant agreement. Regulation 15A provides for accrued annual leave to be rounded–up during the first year only on a month-to-month basis to the next half-day.
18. Article 33 of the 1996 Order provides that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment as provided therein. Under Article 27 of The Employment (Northern Ireland) Order 2003 in proceedings before an industrial tribunal in respect of specified jurisdictions which include unauthorised deductions and payments, and breach of employment contract and termination, if the tribunal makes an award to the employee in respect of the claim, and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33 of the 1996 Order the tribunal shall increase the award by the minimum amount equal to two week’s pay to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount equal to four week’s pay instead. The tribunal’s duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.
APPLYING THE LAW TO FACTS FOUND
19. Based on the claimants undisputed evidence the tribunal is on balance satisfied as follows:
Arrears of Pay
20. The respondent has in breach of contract failed to pay the claimant and the claimant has suffered an unlawful deduction in respect of net wages due for work done in January of £684.90, April of approximately £1,271.01 and one week in May 2013 of approximately £293.33. The respondent shall pay the claimant £2,249.24 in respect thereof.
Notice Pay
21. In breach of contract the respondent has failed to provide the claimant one weeks’ notice of termination of his employment the minimum implied into his contract of employment under Article 118 of the 1996 Order. The respondent shall pay the claimant £293.33 in respect thereof.
Holidays
22. The respondent has in breach of contract failed to pay the claimant on termination of employment for holidays accrued due but not taken due to him under the working time regulations less leave already taken, as follows ;
77 days worked / 260 working days in a year = 8.3 days
Rounded up under Regulation 15A = 8.5 days
Less 3 days taken = 5.5 days
Average net daily pay = £58.66
5.5 x £58.66 = £ 322.63
Failure to give a statement of employment particulars
23. When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a statement of employment particulars and in light of the above awards and absence of evidence of any exceptional circumstances which would make an award unjust or inequitable the tribunal considers it just and equitable to increase the award to the claimant by the minimum amount under Article 27 of the 2003 Order being equal to two weeks gross pay, that is, £359.60.
CONCLUSION
24. The claimant has suffered an unauthorised deduction from wages and a loss as a result of a breach of contract by the respondent in failing to give the claimant proper notice of termination of his employment, to pay the claimant wages and holidays accrued due on termination of his employment and when proceedings were commenced the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. The respondent shall pay the claimant in total £3,224.80.
25. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 3 September 2013, Belfast.
Date decision recorded in register and issued to parties:
