Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2004/31.html
Cite as: [2004] NIIT 9173_3, [2004] NIIT 9173_03

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THE INDUSTRIAL TRIBUNALS

CASE REF: 9173/03

APPLICANT: Donna Jean Cassidy

RESPONDENT: Woodbury Investments Limited

DECISION

The unanimous decision of the tribunal is that the tribunal finds the applicant's claim for unpaid wages well-founded, and the tribunal Orders the respondent to pay to the applicant the total sum of £901.92 in respect of unpaid wages in lieu of statutory leave entitlement, and costs.

Appearances:

The applicant was represented by her father, Mr T Cassidy.

The respondent did not appear and was not represented.

This is a decision in summary form.

THE ISSUES

The applicant's claim expressed in her Originating Application was "Withholding holiday pay (deductions from wages)". The applicant, at the conclusion of the hearing, also applied for costs. Accordingly, the tribunal had to decide these issues.

THE TRIBUNAL'S FINDINGS

In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-

The applicant was employed by Woodbury Investments Limited, a company of limited liability, which company ran a franchised branch of the "Subway" sandwich bar from premises at 141 Lisburn Road, Belfast. The applicant's employment initially commenced in 2001 and the applicant was employed in a part-time capacity whilst she was studying for her M.Sc. at Queen's University, Belfast. The applicant gained her M.Sc. in 2001. The Director of the respondent company with whom the applicant normally had dealings was a Mr Rodney Higginson. Mr Higginson managed the branch.

The applicant briefly left the employment of the respondent but she recommenced employment with the respondent in September 2002, effectively working full-time hours, five days a week, ostensibly "9.00 am to 5.00 pm", although the working pattern in practise involved working shift hours additionally. The applicant received no written statement of terms and conditions of employment. The agreed remuneration was an hourly rate of pay of £4.20 per hour, gross. There was no express contractual agreement regarding paid annual leave.

At no time in the course of the employment were any issues raised by the respondent in respect of the applicant's conduct in the post. Eventually, the applicant took a decision to resign from this employment as she felt that her professional career might be enhanced if she were able to devote more time towards securing alternative employment, in view of her academic qualifications. She spoke with Mr Higginson approximately two weeks before she was due to leave and everything was agreed in terms of her notice of leaving. Her last day of employment was 31 July 2003. She felt that her leaving was at all times on an amicable basis with Mr Higginson.

After she had resigned she contacted Mr Higginson to obtain her P45 and to collect her final pay. She noticed that she had received no payment in respect of holiday pay. She raised this issue with Mr Higginson and he said that he would look into it. Further attempts to obtain any outstanding payments from Mr Higginson were met with the response that he was "looking into it". Eventually, the applicant contacted the Citizens' Advice Bureau for advice and was advised that she was entitled, under the provisions of the Working Time Regulations, to have twenty days' leave with pay per annum. She contacted Mr Higginson again in September 2003 and was told, again, that he was "looking into it".

The next thing of note was that the applicant received a letter dated 26 September 2003 from the respondent company and signed by an "S Green", a person whom the applicant had never encountered whilst in the respondent's employment. That letter raised issues concerning the applicant's correct address and P45, her written application for employment and medical questionnaire and declarations that had been signed by her, and proceeded to make allegations that CCTV recordings of the applicant's conduct had been made and that detailed lists of her alleged unauthorised absences from work in 2003 had been recorded. The correspondence went on to comment on job applications which the applicant had made to Queen's University and stated that the respondent might be legally obliged to progress further action regarding her former period of employment which might include notification of certain information alleged to have emerged from the CCTV recordings. The correspondence continued in this tone, using an elaborate and legalistic usage of English and incorporating in the text a threatening tone towards the applicant to the effect that the alleged misconduct would be reported to various statutory and other authorities. The applicant was shocked and extremely distressed by this. The applicant responded to that letter by a letter of 3 October 2003. She challenged the content and the tone of the 26 September 2003 correspondence from the respondent. She mentioned the Working Time Regulations and requested that she be paid anything that was due, including pay in lieu of untaken holiday leave, or she would issue tribunal proceedings.

The respondent's response to that was by way of a letter of 23 October 2003. This raised, inter alia: issues of the applicant's proper address; Data Protection Act 1998 issues; allegations of an alleged "thirty-five specimen occasions" over five days upon which it was alleged that the applicant was absent from the customers' service and kitchen areas; allegations regarding the unauthorised use of a telephone line; the same in regard to a taxi account; consumption of company-owned food and drink and appropriate payments; and the fact that the company had received correspondence from "a third party" (that person being the applicant's own father). Again, the tone of the correspondence involved the use of an elaborate style, was legalistic and threatening and incorporated the presentation of a number of serious and detailed allegations of misconduct against the applicant. Again, the applicant found this to be very distressing, especially as she regarded the allegations as being entirely unfounded.

The applicant then secured the services of Noel Wilson & Co, Solicitors, which firm corresponded with the respondent. This solicitors' correspondence was met with further correspondence on the part of the respondent in similar tone to that previously sent directly to the applicant and consisting of a series of interrogatories and references to the previous allegations. The applicant then received further correspondence from the respondent in a similar vein, dated 8 January 2004, this time containing an invoice also dated 8 January 2004, alleging that the sum of £5,000.00 was due to the Company by he applicant. Again, the applicant was shocked to receive this and could not understand how that sum could be claimed against her. This was followed by further letters from the respondent dated respectively 15 March 2004, 29 March 2004, 5 April 2004 and 12 April 2004. Some of the more recent correspondence purported to be copied by the respondent also to "PSNI, South Belfast DCU, Criminal Justice Unit". The applicant, being very concerned at this, took the step of checking with PSNI and copies of this correspondence had apparently not been received by anyone in PSNI, so it would appear.

The applicant was very upset and considerably distressed by these, as she saw them, entirely unfounded allegations and by the respondent's conduct towards her. She required to see her doctor and medication was prescribed. As she felt that she required legal professional advice and assistance in view of the serious allegations being levelled against her, the applicant subsequently retained the services of Messrs Carson & McDowell, Solicitors, after having originally retained Noel Wilson & Co, Solicitors. Having heard the applicant's explanation for the change of Solicitors, the tribunal was satisfied that there were good and proper reasons for the change of solicitor representation. However, the applicant decided not to retain either firm of solicitors to represent her in the tribunal for reason of cost, and her father represented her in place of those professional advisers at the hearing.

The applicant had not received any holiday pay whatsoever throughout her period of employment with the respondent. At the time of termination of the contract she had been employed continuously for eleven months. The tribunal inspected wages slips and determined her net weekly wage in this post at a figure of £123.25.

THE TRIBUNAL'S DECISION

The provisions of the Working Time Regulations (Northern Ireland) 1998 (as amended) provide at Regulation 13 thereof that in any leave year an employee is entitled to four week's paid leave, or to pay in lieu thereof. In this case, the applicant had been employed continuously for eleven months and the net weekly wage was £123.25. The applicant had neither received nor taken any paid annual leave whatsoever from the time of commencement of this period of employment until the time same came to an end. There was no enhanced contractual entitlement in excess of the statutory entitlement. In this case the applicant would be entitled to pay in lieu of this unpaid and untaken leave. The applicant's daily net pay was £24.65 (one-fifth of £123.25). Her annual paid leave ought to have amounted to, in total 20 x £24.65 = £493.00. On a pro-rata basis, she was entitled to eleven-twelfths of this, the sum of £451.92.

THE TRIBUNAL'S DECISION ON COSTS

The applicant's representative applied for costs and drew the tribunal's attention to solicitors' costs incurred and properly payable to Messrs Noel Wilson & Co, Solicitors and also Messrs Carson & McDowell, Solicitors. In addition, the applicant's father (as representative) had had to travel to accompany her to the tribunal and to present her case, as the applicant was very distressed by the whole matter and would have had difficulty in the effective presentation of her own case, so it was submitted. The submission was to the effect that the conduct of the matter by the respondent was designed to intimidate the applicant into withdrawing her complaint and was vexatious and unreasonable. The tribunal had heard evidence about the applicant being very adversely affected by the whole matter and particularly by the threatening tone and the intimidatory content of the correspondence that had been received by her from the respondent. The tribunal accepted this evidence and the submission on her behalf.

In regard to the applicant's application for costs, the tribunal noted the provisions of Rule 14 of the Industrial Tribunals Rules of Procedure, 2004. Rule 14 provides as follows:-

14. – (1) Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably ….. the tribunal shall consider making, and if it so decides, may make –

(a) an order containing an award against that party in respect of the costs incurred by another party.

The tribunal reviewed the evidence pertaining to the circumstances which prevailed after the applicant had resigned and especially noted the tone and content of the correspondence received both by the applicant and by the solicitors retained by the applicant. The tribunal cannot take any other view than to regard this as being an outrageous and a disgraceful attempt on the part of the respondent to intimidate the applicant and her advisers with a view to bringing pressure to bear upon the applicant so as to dissuade the applicant from exercising her statutory rights by proceeding with this claim under the Working Time Regulations. The correspondence is threatening and elaborately legalistic in tone; it makes many and detailed (and as far as the tribunal is concerned entirely unsubstantiated) allegations of misconduct against the applicant; and even, in some instances, engages in the fiction of purporting to copy the correspondence to the Police Service of Northern Ireland. That was, of course, not done; but the intention and effect is clearly to intimidate and it served that purpose. The tribunal cannot but take the most serious view of this endeavour on the part of the respondent to dissuade the applicant from proceeding with this claim. When afforded an opportunity to appear before the tribunal to substantiate the allegations against the applicant, having placed the applicant in a position where she required to seek legal advice and assistance from two solicitors and ultimately, on grounds of cost, to prepare with her father to present the case before the tribunal, the respondent has chosen not to appear nor to be represented in justification of its stance in defence of these proceedings.

The tribunal, taking account of Rule 14 and of the facts, is of the view that the foregoing ought properly to be reflected by the tribunal in the making of an award for costs against the respondent and in favour of the applicant. The tribunal regards the conduct of the matter by the respondent as being both vexatious and unreasonable. Accordingly, the tribunal's award of costs is as follows:-

(a) in respect of the fees of Messrs Noel Wilson & Co, Solicitors, the tribunal did not hear specific evidence as to the fees which that firm (which had not at the tribunal date billed the applicant) would charge. However, having heard details of the work which had been carried out by that firm in terms of meetings with the applicant, advice given, and correspondence entered into, and making what the tribunal regarded as being a reasonable assumption that charges would properly be levied against the applicant for services rendered, the tribunal feels that a not unreasonable figure for this work would be the sum of £200.00 plus VAT;

(b) in respect of Messrs Carson & McDowell, Solicitors, the tribunal saw documentation to the effect that that firm, although like the first solicitors not yet having raised a bill, was intending to raise a bill for £125.00 plus VAT. The tribunal is of the view that this is not an unreasonable fee considering the work done by that firm;

(c) the tribunal heard further that the applicant's father had incurred an airfare in his travel from England to attend the tribunal for the day in order to assist his daughter by the presentation of her case. He had also spent a considerable amount of time in assisting her with preparation of the case. The tribunal felt that it would not be unreasonable to make an award of costs to meet this;

(d) accordingly, the tribunal awards a total figure in respect of these three elements of cost in the sum of £450.00.

The tribunal therefore finds the applicant's claim well-founded and Orders the respondent to pay to the applicant the total sum of £901.92 in respect of unpaid wages in lieu of statutory leave entitlement, and costs.

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

Chairman:

Date and place of hearing: 30 April 2004, Belfast.

Date decision recorded in register and issued to parties: