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Duncan Smith v. Noonan t/a Noonan Services Group (NI) Ltd - (04 Jun 2017)

Tribunal has no jurisdiction to interpret agreement, it can only amend statutory statement to ensure that, it corresponds with agreement

Labour and Industrial

Claimant in present claim complained that, he had suffered an unlawful deduction from wages arising out of Respondent discontinuing its practice, after four years of paying him for 12 rather than 11.5 hours per shift worked. Respondent in its response resisted claim and contended that, it was entitled to pay Claimant according to his statement of terms and conditions of employment.

Article 45 of Employment Rights (Northern Ireland) Order 1996 (ERO), provides for a workers' right not to suffer unauthorised deductions from wages by his employer. A deduction occurs, when employer pays less than amount properly payable to employee on that occasion and amounts of deficiency is to be treated as a deduction. A worker may present a complaint to an industrial tribunal under Article 55 ERO that, his employer has made a deduction in contravention of Article 45.

Industrial Tribunal has jurisdiction to determine an employee's 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, under Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994, if claim arises out of, or, is outstanding on termination of his employment.

In Southern Cross Health Care Co Ltd - v - Perkins & ORS [2010] EWCA Civ 1442 Court of Appeal in England and Wales considered whether the Employment Tribunal had jurisdiction to construe contractual terms in a written statement of particulars in a claim arising from failure to provide written terms and conditions and Maurice Kay LJ set out that, tribunal has no jurisdiction to interpret the agreement - that is a matter for the ordinary Courts. Still less does the tribunal have jurisdiction to amend the agreement. It can only amend the statutory statement to ensure that, it corresponds with agreement.

To determine whether claimant has suffered an unauthorised deduction from wages contrary to Article 45 ERO, it is necessary to first identify amount of wages properly payable to him, that is, amount to which he was legally entitled under his contract of employment. It was not clear as submitted by claimant, from his contract of employment, that he was entitled to payment for 42 hours per week, his hours of work are expressed therein as "anticipated" and as such are not certain. It is not clear from claimant's contract whether a paid or unpaid meal break was intended. In absence of certain contractual provision from which it is possible to ascertain amount properly payable to Claimant, to establish this would next require consideration of whether there was an implied term to pay for Claimant's meal break which can or ought to be construed from respondent's past conduct.

It is not possible to determine what amount was properly payable to Claimant without engaging in construction of his contract of employment. As per Southern Cross Southern Cross Health Care Co Ltd. v. Perkins & ORS and Agarwall v. Cardiff University, conditions of entitlement to pay are not clear and would necessitate a decision on implying a term, which where Claimant's employment is ongoing, falls outside jurisdiction of Tribunal. Tribunal does not have jurisdiction to determine Claimant's unauthorised deduction from wages claim. Claimant's claim is accordingly dismissed.

Relevant : Southern Cross Health Care Co Ltd - v - Perkins & ORS [2010] EWCA Civ 1442, Agarwall v. Cardiff University


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