Cullen vs Dr Stephen McKenna formerly
| Jurisdiction | Northern Ireland |
| Judgment Date | 21 August 2013 |
| Respondent | Dr Stephen McKenna formerly |
| Docket Number | 00784/13IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 784/13
CLAIMANT(S): Fiona Cullen
RESPONDENT(S): Dr Stephen McKenna formerly trading as Belfast
Orthodontic Clinic
DECISION
The unanimous decision of the tribunal is that an unlawful deduction of £347.87 was made by the respondent from the claimant’s wages. The tribunal awards an additional amount of £635.74 due to the respondent’s failure to comply with the provisions of Article 33 of the Employment Rights (NI) Order 1996, making a total award of £983.61. The title of the proceedings is amended to state the correct name of the respondent.
Constitution of Tribunal:
Chairman: Ms J Knight
Panel Members: Mr H McConnell
Mr P Archer
Appearances:
The claimant appeared and represented herself.
The respondent appeared and was represented by Ms Sinead O’Flaherty BL in capacity of the respondent’s wife.
Issues
- The tribunal had to determine
- Whether the respondent had unlawfully deducted the sum of £347.87 from the claimant’s wages
- Whether the respondent had given the claimant a written statement of particulars of employment in compliance with its obligations under Article 33 of the Employment Rights (Northern Ireland) Order 1996.
Evidence
- The tribunal considered the written and oral evidence of the parties and documentation to which it was referred during the course of the hearing. The tribunal declined, after hearing submissions by the parties, to read a written witness statement of Ms Tammy Cardwell on behalf of the respondent. The tribunal considered that it could give no weight to her evidence as she was not present at the hearing and could not be cross examined by the claimant. The tribunal also declined to hear evidence from the parties which had no relevance to the issues which it had to determine.
The Law
Right not to suffer unlawful deductions
- Article 45(1) of the Employment Right’s (Northern Ireland) Order 1996 (“the 1996 Order”) provides that an employer shall not make an 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 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 the deduction.
- Article 45(2) of the 1996 Order defines a “relevant provision”, in relation to a workers contract. This means a provision of the contract comprised either –
(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, or
(b) In one or more terms of the contract (whether express or implied and if express whether oral or in writing) the existence and or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.
Right to Statement of Employment Particulars
- Article 33 of the 1996 Order provides that where any employee begins employment with employer, the employer shall give to the employee a written statement of particulars of employment, within two months of the beginning of his employment.
- The statement of initial employment particulars must contain the particulars set out in Article 33 (3) such as rates of pay and holiday entitlement. This also includes the length of notice of which the employee is obliged to give and entitled to receive to terminate his contract of employment [Article 33(4)(e)] and any collective agreements which directly effect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made [Article 33(4)(j)].
- A statement under Article 33 may refer the employee for particulars of any of the matters which must be stated, to the provisions of some other document which is reasonably accessible to the employee. Specifically Article 34 (3) provides a statement under Article 33 may refer the employee for particulars of either of the matters specified in paragraph 4(e) of that Article to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee. A collective agreement is defined by Article 2 (2) of the Industrial Relations (Northern Ireland) Order 1992 as “any agreement or arrangement made by or on behalf of one or more Trade Unions or one or more employers or employers’ associations and relating to one or more of the matters mentioned in paragraph 4”.
- Article 27 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) provides that where an employer fails to comply with its obligation under Article 33 of the 1996 Order, a tribunal shall make a minimum award of either two weeks gross pay or if in all the circumstances it considers it is just and equitable to do so, four weeks gross pay.
Notice Periods
- Where a contract does not specify the notice period to be given by an employee who wishes to terminate their employment the minimum notice period set out in Article 118 (2) of the 1996 Order will apply. An employee who has been continuously employed for one month or more must give not less than one week’s notice of termination. In calculating the notice period no account may be given to a fraction of a day. In cases of oral notice of dismissal, unless the contract provides otherwise, a notice given during the working day cannot take effect until the following day. This rule also applies to a written notice of dismissal, unless there is an express term in the agreement dealing with when notice starts, or the agreement that notice is to start immediately can be construed from the wording of the contract and the dismissal/resignation letter set in the factual matrix of the case Wang -v- University Of Keele EAT [2011] IRLR 542.
Facts and Conclusions
- The tribunal found the following relevant facts to be proven on a balance of probabilities:
- The claimant was employed by the respondent as a dental nurse from 6 August 2012 until her resignation with effect from 25 January 2013. The claimant’s gross weekly pay was £317.87 for a 37.5 hour week worked over five days. She was paid monthly.
- The claimant was given a copy of the respondent’s Employee Handbook on 2 August 2012...
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