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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McNally v Freeburn & Anor [2005] NIIT 383_05 (19 August 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/383_05.html Cite as: [2005] NIIT 383_5, [2005] NIIT 383_05

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THE INDUSTRIAL TRIBUNALS

CASE REF: 383/05

CLAIMANT: Scott McNally

RESPONDENT: Mr & Mrs David Freeburn

DECISION

The decision of the tribunal is that the respondent should pay to the claimant the amount of £780.00 by reason of unauthorised deduction of wages.

Appearances:

The claimant was represented by Mr J Walker.

The respondent did not attend and was not represented.

THE ISSUE

The issue to be determined by the tribunal was whether, by failing to pay the claimant any of his weekly wages between 21 January 2005 and 4 February 2005, the respondent had made an unauthorised deduction from his wages within the meaning of Article 45(1) of the Employment Right (Northern Ireland) Order 1996.

In order to determine the issue, the tribunal had regard to the originating application, correspondence from the respondent and the oral evidence of the claimant, as well as the relevant legislation and case law.

The respondent, Mr David and Mrs Tracy Freeburn, did not make a formal response to the originating application. On the morning of the tribunal hearing, Mrs Freeburn faxed a letter to the Office of Tribunals at 8.30 am, requesting a postponement. She stated therein that her babysitter for the day had let her down at the last minute.

Whilst that obviously caused her difficulty, there was no apparent reason why Mr Freeburn could not have attended. Since it also is worthy to note that Mrs Freeburn did not in her letter refute the substance of the assertions of the claimant as to not having been paid, it was considered appropriate to proceed in the respondent's absence.

THE TRIBUNAL'S FINDINGS

The tribunal found the following facts:-

The claimant commenced employment for the Freeburns in May 2004 as a lorry driver. His weekly pay, paid each week by cheque, was £260.00.

On 21 January 2005, the claimant lodged his cheque as usual into his building society account, but it was returned unpaid a few days later.

When eventually the claimant was able to contact the respondent about the matter, he was told that the respondent had not been paid by Express Parcels, the subcontracting firm, and consequently the respondent did not have enough money to pay him at that stage.

The claimant worked as normal for the following two weeks, but no pay-cheque was forthcoming and there was no contact made by the respondent until the claimant wrote to them on 17 February. Mrs Freeburn then told the claimant by telephone that they had no money and could not pay him.

The claimant started work with Express Parcels as a lorry driver on 31 January 2005, but to date had not received the £780.00 owed to him by the respondent.

THE TRIBUNAL'S DECISION

It seemed to the tribunal to be beyond question that the claimant was employed by the respondent and that the respondent had not paid the claimant his wages of £260.00 per week between 21 January and 4 February 2005. Whilst the respondent had not made a formal response, the limited correspondence from them did not dispute the claimant's assertion in that regard, merely stating that they had an unspecified answer to it.

In determining whether the respondent had made a deduction from the claimant's wages by not paying him, the tribunal had regard to Article 45(3) of the Employment Rights (Northern Ireland) Order 1996, which states:

Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly paid by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated … as a deduction by the employer from the worker's wages on that occasion.

There seemed to the tribunal to be a logical and compelling inference from the wording of Article 45(3) that for an employer not to pay a worker any of the wages properly payable to him falls within Article 45(3), a view reinforced by the English case of Delaney -v- Staples [1992] IRLR 191, HL. The tribunal therefore concluded that in this case there had on each occasion been a deduction of wages by the respondent from the claimant's wages.

The tribunal then further considered Article 45 and 46 of the Employment Rights (Northern Ireland) Order 1996, to determine whether such deductions fell within those permitted by the legislation.

Article 45(1) prohibits a deduction from wages unless it is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract; or if the worker has previously signified in writing his agreement or consent to the making of the deduction.

The tribunal concluded that there was no evidence to suggest that either of the conditions permitted under Article 45 applied in this case.

The prohibition of deductions under Article 45 does not apply under Article 46, which provides exceptions permitting deduction in specific circumstances.

Again, the tribunal concluded that there was no evidence capable of bringing the deductions in this case within those exceptions.

The tribunal therefore concluded, from the evidence and from the facts found, and from consideration of the legislation and case law, that the non-payment of the claimant over the period from 21 January 2005 to 4 February 2005 constituted unauthorised deductions from his wages totalling £780.00.

The respondent is consequently ordered to pay £780.00 to the claimant.

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

Chairman:

Date and place of hearing: 19 August 2005, Belfast.

Date decision recorded in register and issued to parties: