THE INDUSTRIAL TRIBUNALS

CASE REF:	529/13IT	
	
CLAIMANT:			Grzegorz Czaja

RESPONDENT:		Annesborough Engineering Limited 

DECISION

The decision of the tribunal is as follows:-

1.	The respondent is ordered to pay to the claimant in respect of unpaid wages the sum of £2,457.00 (gross).

2.	The respondent is ordered to pay to the claimant in respect of holiday pay the sum of £702 .00 (gross).

3.	The respondent is ordered to pay to the claimant in respect of over-time the sum of £450.00 (gross).

Constitution of Tribunal:

Chairman (sitting alone):		Ms Turkington 

Appearances:

The claimant appeared and represented himself at the hearing 
 
The respondent did not appear at the hearing.  The respondent had not lodged a response form. 

The Claim

1.	The claimant brought the following claims before the tribunal:- 

(1)	A claim in respect of unpaid wages for a period of 7 weeks.
(2)	A claim in respect of holiday pay for 2 weeks.	 
(3)	A claim in respect of unpaid over-time pay totalling £450.00. 

The Issues

2.	The issues to be determined by the tribunal were:-

(1)	Whether the respondent failed to make payment to the claimant in respect of wages earned during the 7 weeks which are the subject of this claim and, if so, the amount of such unpaid wages.
   
(2)	Whether the respondent failed to pay holiday pay to the claimant in respect of the 2 weeks which are the subject of this claim and if so, the amount of holiday pay due to the claimant.  

(3)	Whether the claimant’s claim in respect of over-time worked in or about Easter 2012 was in time, whether the respondent failed to make payment to the claimant in respect of this over-time and if so, the amount due to the claimant. 

Disposal of the claim in the absence of the respondent

3.	The respondent did not appear at the hearing.  The respondent had not lodged 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

4.	The tribunal heard oral evidence from the claimant and considered the content of the claim form and a number of documents submitted by the claimant, including pay slips.  

Facts of the Case

5.	Having considered all the evidence before it, the tribunal found the following relevant facts:-

(1)	The claimant started his employment with a predecessor of the respondent in 2004.   Following a number of business transfers, the claimant worked for the respondent from 2011 as a Site Operator.  The claimant was employed by the respondent until 20 January 2013.
  
(2)	The claimant’s wages were £9 per hour and he worked 39 hours per week.  He was therefore entitled to wages of £351 per week gross, £283.02 per week net.   

(3)	During his employment, the claimant was often paid late.  After 2 November 2012, the claimant received no pay, save that he received one week’s pay just before Christmas, but he did not receive any pay slip in respect of that payment.

(4)	The respondent’s business was closed for 2 weeks over the Christmas holiday period and the claimant previously received full pay for the duration of such customary shut downs.

(5)	The claimant worked some 50 hours of over-time in or around Easter 2012.  Despite the respondent’s promises that he would be paid for this work, payment was never received by the claimant. 

(6)	The claimant’s claim form was lodged on 11 March 2013.

Statement of Law

6.	By Article 45 of the Employment (Northern Ireland) Order 1996 (“the 1996 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.  A complete failure to pay wages on any occasion constitutes a deduction from wages.

7.	By Article 55(2) of the 1996 Order, an Industrial Tribunal shall not consider a complaint in respect of a deduction from wages unless it is presented before the end of the period of 3 months beginning with the date of the last deduction in a series of deductions.

8.	Under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”), proceedings may be brought before a tribunal in respect of a claim of an employee for the recovery of any sum due under the employee’s contract provided that the claim is outstanding on the termination of the employee’s employment.  Such a claim can be brought within three months of the effective date of termination of the employee’s employment.

          Conclusions

9.	The tribunal had no difficulty in concluding that there was a complete failure to pay the claimant’s wages for the period from 2 November 2012 through to the date of termination of the claimant’s employment, namely 20 January 2013 (save for the payment of 1 week’s wages just before Christmas).  The total sum unlawfully deducted from the claimant’s wages is as follows:-

2 November 2012 – 20 January 2013       = 10 weeks
Less                                                           -   1 week 
Less                                                           -    2 weeks Christmas holidays 
Total number of weeks without pay          =    7 weeks 
Total sum unlawfully deducted                  =   7 x £351 = £2,457.00 (gross)
             The respondent is therefore ordered to pay to the claimant the sum of £2,457.00
(gross).

10.	The tribunal concluded that the respondent had failed to pay 2 weeks holiday pay to the claimant in respect of the Christmas shutdown.  The sum due to the claimant under his contract of employment and in accordance with the established custom and practice is as follows:-

2 weeks x £351 = £702.00 (gross)
The respondent is therefore ordered to pay the sum of £702.00 (gross) to the claimant.

11.	The tribunal was satisfied that the claimant was owed pay in respect of 50 hours over-time worked around Easter 2012.  This claim was still outstanding at the date of termination of the claimant’s employment and the claim was brought in time.  The sum due to the claimant in respect of this over-time is:-

50 hours x £9 per hour = £450.00 (gross)
The respondent is therefore ordered to pay to the claimant the sum of £450.00 (gross) in respect of over-time.

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

Chairman:

Date and place of hearing: 29 May 2013, Belfast.

Date decision recorded in register and issued to parties: