Industrial Tribunals Northern Ireland Decisions

Wilkinson v Readyuse Concrete Co Ltd (Statute Barred) [2003] NIIT 7_03 (10 April 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF NO: 7/03

APPLICANT: John Alexander Wilkinson

RESPONDENT: Readyuse Concrete Co Ltd

DECISION

The unanimous decision of the tribunal is that:-

1.       (a) The applicant's complaint that the respondent was in breach of his contract of employment and/or had made a deduction from his wages in contravention of Article 45 of the Employment Rights (Northern Ireland) Order 1996 for the period from 2 September 1985 to 20 September 1996 is statute barred and it is therefore dismissed.

(b) The applicant's complaint that the respondent had made a deduction from his wages in contravention of Article 45 of the said Order for the period from 21 September 1996 to 31 May 1998 was out of time and the Tribunal refused to extend time and it is therefore dismissed.

(c) The applicant's complaint that the respondent was in breach of his contract of employment and/or had made a deduction from his wages in contravention of Article 45 of the 1996 Order for the period from 1 June 1998 to 21 September 1998 is dismissed.

2. The matter will be relisted to determine the said outstanding issues as set out in paragraph 4 herein.

APPEARANCES:

APPLICANT: The applicant appeared in person.

RESPONDENT: Mr A Devlin, Barrister-at-Law, instructed by McGrigor Donald, Solicitors.

1. The decision is given in summary form in accordance with Rule 10(4) of the Industrial Tribunals (Rules of Procedure) 1996.
2.1 The applicant was initially employed from 2 September 1985 by the respondent as a concrete operative, but shortly thereafter his job title changed to that of depot supervisor. Throughout his period of employment with the respondent, until it was terminated on his retirement on 21 September 2002, the applicant was based at the respondent's premises in Banbridge.
2.2 The applicant, on 5 September 1985, signed a statement of particulars of terms of employment. The following, inter alia, were material terms of the said statement:-

"2. Your rates of wages, additional wage payments, pay day, hours of work, sick pay, holidays, public holidays and holiday pay are in accordance with the provisions of the following documents:

(a) your pay slip, pay envelope or the employer's wages register where your rate of wages is stated.

(b) the Working Rules Agreement for the Building and Civil Engineering Industry NI as approved by the Joint Council for the Building and Civil Engineering Industry NI appropriate to the shop, job or site where you are for the time being employed.

(c) the incentive scheme, if any, applying to your job or work in accordance with the Working Rules Agreement.

(d) the Annual Holidays with Pay Agreement for the Building and Civil Engineering industry NI.

8. All the provisions of the Working Rule Agreement referred to above (para 2(b)), whether itemised in this statement or not, are incorporated in your terms of employment."

2.3 The Working Rules Agreement included various working rules agreed by the Joint Council from time to time and which made provision, inter alia, for the payment of wages and in particular for the rates of wages to be paid to "craftsmen" and "labourers" (who by 1996 were referred to in the Rules as "general building operatives"). There was no section in the said Rules defining the said positions. The said Joint Council, which was made up of representatives of the trade unions and of the employers, published from time to time, the relevant rates of wages to be paid during each year to craftsmen and labourers/general building operatives under the said Working Rules. The custom and practice in the said industry was that craftsmen were those who had recognised technical qualifications (eg. City and Guilds and/or their equivalent) or who had followed a recognised period of apprenticeship (eg. time-served). Anyone who was not so recognised as a craftsman in the industry was treated as a labourer/general building operative.
2.4 In or about 1998 the said Joint Council in order to encourage recruitment in the industry published a significant increase in the rates of pay for craftsmen and labourers/general building operatives as part of a three-year settlement for the industry.
2.5 At all material times the respondent was not a member of the Construction Employers Federation Ltd, formerly known as the Federation for Building and Civil Engineering Contractors (NI) Ltd, and which federation represented employers on the Joint Council. The respondent decided that, contrary to the practice which it had formerly adopted it would not pay the said new rates of pay, as published by the Joint Council. The respondent, in or about April/May 1998, carried out a full review of its rates of payment for all hourly paid employees, such as the applicant, and how same were to be structured. Following the said review, the applicant was informed orally, but also given in writing by letter dated 28 May 1998 and in a written schedule, details of the rates of pay to be paid to him by the respondent from 1 June 1998, together with details of those parts of the Working Rules which would remain applicable, such as holiday pay, death benefit and pension.
2.6 The Tribunal is therefore satisfied that from 1 June 1998 the applicant's contract of employment, which had prior to this date contained the terms set out at paragraph 2.3 therein, was varied so as to incorporate and reflect the terms contained in the letter dated 28 May 1998 and the said schedule. It was not disputed that the applicant was paid from 1 June 1998 to the date of his said retirement in accordance with the said terms as varied. In the circumstances, the Tribunal is satisfied the respondent was not in breach of the applicant's contract of employment, nor did it make any deduction from the wages of the applicant in contravention of Article 45 of the Employment Rights (Northern Ireland) Order 1996 for the period from 1 June 1998 to 21 September 2002.
2.7 With regard to the applicant's complaint that the respondent was in breach of his contract of employment and/or had made a deduction from his wages in contravention of Article 45 of the 1996 Order for the period from 2 September 1985 to 1 June 1998 the Tribunal is satisfied that any such claim would be statute-barred prior to 21 September 1996. Further, since the applicant had been paid, as found by the Tribunal, all wages to which he was properly entitled under his contract of employment from 1 June 1998 any claim by the applicant under Article 45 of the 1996 Order for the period from 21 September 1996 to 31 May 1998 was out of time, as it was not brought within the relevant three-month period. The Tribunal refused to extend time as it considered it was reasonably practicable for the applicant to have brought any such claim within the said three-month period. The Tribunal noted that the applicant consulted the Citizen's Advice Bureau within three months of 1 June 1998 and decided, in light of advice given to him, not to make any claim and/or raise any objections to the changes to his contract of employment. The Tribunal is satisfied that the applicant's claim for breach of contract for the said period was within time, as any sums due/damages were outstanding at the termination of his employment on 21 September 2002.

3.1      (a) During the said period from 21 September 1996 to 31 May 1998 the applicant's contract of employment contained the terms as set out in paragraph 2.3 herein. Having considered all the said terms referred to therein and in particular the custom and practice of the industry the Tribunal is satisfied that the applicant was not entitled to be paid under the terms of the contract the rates of pay payable to a craftsman for the said period under the said Works Rules. He was not a craftsman, as recognised under the custom and practice of the industry. He Was at no time paid by the respondent as if he was, and at no time prior to in or about June 1998 did he suggest that he should have been.

(b) The Tribunal is further satisfied that the applicant, as a depot supervisor, was entitled to be paid at a rate of pay which was in accordance with at least the rate of pay which would have been payable to a labourer/general building operative under the said Works Rules throughout the period from 21 September 1996 to 31 May 1998

3.2 The applicant, who was unrepresented, had not prior to the said hearing been able to obtain relevant details as to the applicable rates of pay under the Work Rules during the said period and/or to consider whether in light of the sums paid to him by the respondent he was able to establish, subject to the issues to be determined by the Tribunal, whether there had in fact been a breach of his contract of employment by the respondent and, if so, the amount of any damages and/or sums due to him arising out of any such breach of contract. As the respondent contended that there had been no such breach it was agreed that the Tribunal would firstly determine the issues as set out above; the matter would then be relisted to determine all outstanding issues, after the applicant had had the opportunity to obtain the relevant details and to consider his position in the light of same.
4. The matter will therefore be relisted to determine the said outstanding issues, namely:-

(i) whether during the period 21 September 1996 to 31 May 1998 the respondent was in breach of the term of the applicant's contract of employment relating to his rate of pay, as determined by the Tribunal as set out at paragraph 3.1(b) herein.

(ii) if so, the amount of any damages or sums due arising out of any such breach of contract.

____________________________________

NEIL DRENNAN QC

Chairman

Date and place of hearing: 10 April 2003, Belfast

Date decision recorded in register and issued to parties: