Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 8873/03

APPLICANT: Michael McBride

RESPONDENT: Foyle Food Group Limited t/a Omagh Meats

DECISION

The unanimous decision of the tribunal is the respondent was in breach of Article 45 Employment Rights (Northern Ireland) Order 1996 when it unlawfully deducted £1.75 from the applicant's pay on 5 September 2003. Pursuant to Article 56 of the 1996 Order, the tribunal now makes a declaration to this effect.

Appearances:

The applicant was represented by Mr E McGlone.

The respondent was represented by Mr B Mulqueen, of Counsel, instructed by Johnston's Solicitors.

EXTENDED REASONS

Pursuant to Rule 12(4) (d) of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004, these reasons are given in extended form.

The Contentions of the Parties

1. By his originating application, presented on 13 October 2003, the applicant claimed that the respondent had made an unlawful deduction from his wages and that this act was an action short of dismissal because of his trade union activity. At section 13 of the originating application, the applicant complained:

"On 10/09/03 I was told by my employer that he was withholding payment to me for work done to the value of £1.78. My employer has no contractual right to withhold this payment. I believe that this amounts to unlawful deductions from wages and I am asking the tribunal to make such a declaration and an award as appropriate. This action is being taken against me, I believe, due to my being a shop steward who has recently represented members with grievances against the supervisor who made the deduction from my pay. This is not the first occasion that undue pressure has been brought to bear on me or the other shop stewards. On this occasion, my supervisors refused me access to my full time official before or during the action being taken against me".

2. By its notice of appearance, presented on 7 November 2003, the respondent contended that the applicant worked as a boner and was paid on a piece-rate basis (according to the number of carcass quarters boned each day), and denied it was guilty of an unlawful deduction from pay, or that it had acted contrary to Part IV of the Employment Rights (Northern Ireland) Order 1996. The respondent contended that the applicant had left useful meat on a carcass, and this was taken into account in calculating the amount of pay to which the applicant was entitled for work done on 5 September 2003. Accordingly, the respondent contended that the applicant was paid for the number of quarters of carcasses he had satisfactorily completed that day. The respondent contended that it had previously deducted payment from other boners who had not completed work to a satisfactory standard. In the alternative, the respondent contended that the applicant's terms and conditions of employment entitled it to deduct/withhold pay in such circumstances. The respondent emphatically denied that its actions were as a consequence of the applicant's trade union activities, and denied that it had refused the applicant access to his full time union official.

The Sources of Evidence

3. The tribunal heard evidence from the applicant on his own behalf and from Dermot Maguire for the applicant.
4. The tribunal heard evidence from Laurence Maguire, Alan Richardson, Michael Taggart and Seamus McAuley for the respondent. The tribunal also saw a video of the production line on 5 September 2003, and photographs of the disputed quarter of meat taken by Alan Richardson on 5 September 2003.

The Issue to be Decided

5. The tribunal directed that it would consider and determine the complaint that there had been an unlawful deduction of wages, contrary to Part IV of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"). It was agreed by and between the parties that the amount in question was £1.75, and not £1.78 as stated in the originating application.
6. If it determined there had been such an unlawful deduction, the tribunal directed it would then re-convene to hear further evidence and/or submissions on whether or not this deduction was because of the applicant's trade union activities, contrary to Part VI, Chapter II of the 1996 Order.

The Tribunal Found the Following Facts

7. The applicant has been employed by the respondent for twenty years. For most of that time he has worked as a boner. Boning is the process of stripping meat off a carcass by mechanical means. When the bones are processed, the quarters are thrown into a bin. By his terms and conditions of employment, the applicant's pay is calculated as follows:-

Boners:- (Per Man) No. of Quarters per day @ £1.75/ Qtr.

8. Until 27 November 2002 if a bone that had not been properly stripped of meat, that boner was given another chance to strip the meat off. We find that Mr Seamus McAuley (Boning Hall Supervisor) had warned the applicant on 23 January 2001 that a quarter of meat had a large number of slash marks on it, and in future if there were two or more instances of such work performances, the respondent would take disciplinary action against him. Mr McAuley spoke to the boners on 27 November 2002 and told them that if they submitted dirty bones they would not get paid for them. The boners were then given bins into which they had to put their processed bones. The applicant accepted that it was an implied term of his written terms and conditions of employment that if a bone was not properly completed, the worker would not be paid for that bone. That is the accepted custom and practice in most meat factories, such as the respondent's. Section 19 of the terms and conditions of employment provides for disciplinary rules and procedure. The disciplinary procedure lists as minor misconduct "carelessness, lack of attention, or poor effort in relation to workmanship or performance of duties below an acceptable standard". In the past, when someone was accused of poor work, he would be warned not to let it happen again. Both Mr Laurence Maguire (Boning Hall Supervisor) and Mr Seamus McAuley conceded before us that there is nothing in the terms and conditions of employment that provides that the respondent is entitled to withhold money from a boner if he is found to have been guilty of minor misconduct (carelessness or poor work effort).
9. On 5 September 2003, the applicant satisfactorily completed thirty eight hindquarters and nine forequarters which equals forty seven bones. On 5 September 2003, at around 11.15 am, Lawrence Maguire was standing at the end of the production line. The tribunal was shown a video of the production line on 5 October 2003 depicting the time in dispute, and also photographs taken by Alan Richardson of the quarter of meat that Mr Laurence Maguire had found to be poorly stripped. Laurence Maguire observed the applicant throw a quarter to his left into the bin. Mr Maguire stopped the line a few minutes later. Mr Maguire then spoke to the applicant and showed him a hindquarter bone which had not been fully stripped of meat, and that had around a half a kilogram of meat left on it. The amount of meat left on the bone had a commercial value of circa £4.00. Mr Maguire said that the bone was the applicant's. The applicant said that if it were his bone, he would clean it. Mr Maguire stated that he required the applicant to admit that the bone had been processed by the applicant. The applicant did not admit that it was his bone. Thirty minutes later, the applicant was taken to the office and met Michael Taggart (Packing Hall Supervisor). Mr Taggart stated that the boning process was on video, and asked the applicant to admit that the bone was his. The applicant stated again that he was not sure if the bone was one that he had processed, but offered to clean it anyway. The applicant asked for his trade union official (Eugene McGlone). Mr Maguire stated that the meeting was not a disciplinary hearing and therefore it was not necessary for Mr McGlone's presence. Mr Maguire said that the applicant may lose money because of the incident.
10. The evidence of Seamus McAuley was that he had discussed this matter with Laurence Maguire on 8 September 2003. However, Mr McAuley later conceded that he was mistaken about this, and the meeting took place on 10 September 2003.
11. On 10 September 2003, the applicant was asked to meet Mr Taggart (Packing Area Supervisor), Mr Maguire and Seamus McAuley. Although Mr McAuley's evidence was that it was he who had informed the applicant that he would not be paid for the quarter in question, we find that it was Mr Maguire who informed the applicant that he would not be paid for the bone. The amount to be withheld was £1.75. Mr McAuley said that such a withholding of money had happened in the past. The applicant then asked for Mr McGlone to accompany him. Mr McAuley said "You can do whatever you like". Mr Taggart told the tribunal that unsatisfactory stripping of bones was a disciplinary matter. The applicant wrote to Laurence Maguire on 10 September 2003 complaining about the respondent's decision to withhold the £1.75 and stating that he would present a complaint to the tribunal in this regard. He received no response to this letter. The applicant was paid for having processed forty six quarters on 5 September 2003.
12. In the past, the applicant had had experience of representing those workers who had not completed stripping a quarter to a satisfactory standard. On 29 January 2003, Paul Monk was spoken to twice about poor workmanship and given the option of either loosing his piece rate pay for the dirty quarter he had submitted or receive a written warning. Another such worker was Dermot Maguire, who did not lose any money in such circumstances on 3 September 2003. This was because Mr Dermot Maguire had offered to clean the bone immediately it was pointed out to him. Another such worker was Mr T Wilson, who admitted that he had submitted a dirty bone and offered to reprocess a bone immediately it was shown to him on 5 September 2003. Mr Wilson was offered the chance to be accompanied at a meeting to discuss the fact that he had submitted a dirty bone. Mr Wilson was not paid for completing the dirty bone. On 1 October 2003, Paul Connolly admitted that he had submitted a dirty neck bone. Laurence Maguire warned him that if he continued to throw up dirty bones, he would not be paid for same. On 12 February 2004, Laurence Maguire warned Barry McLean that if he continued to submit dirty bones, he would not be paid for same. On that occasion, Mr McLean appears not to have readily accepted that the bone was poorly stripped, but cleaned the bone anyway.

Applicable Law

13. The law applicable to the applicant's complaint as set out in paragraph five above is Articles 45 and 56 of the 1996 Order.

The Decision of the Tribunal

14. The tribunal has considered the originating application, notice of appearance, all the evidence before it, and the written submissions made by the parties. The tribunal makes the following decision on foot of the findings of fact above, and by a unanimous decision, the tribunal makes the following determination:-

(a) The applicant's terms and conditions of employment make clear provision for payment of boners at the rate of £1.75 per quarter. The terms and conditions make absolutely no express provision for the withholding of monies for a quarter that is found to be dirty or not completely stripped of meat, or for deductions of wages for minor misconduct. Mr McAuley and Mr Maguire both conceded before us that the terms and conditions of employment make no provision for the withholding of monies for minor misconduct.

(b) This lack of express provision resulted in historical inconsistencies when boners where found to have submitted dirty bones. Until 27 November 2002, such a boner was given another chance to strip the quarter. Mr McAuley warned the boners on 27 November 2002 that the respondent would not tolerate this situation any longer, and that in future boners would not be paid for dirty bones. The findings we made above in this regard were not refuted by the applicant. Therefore, we infer that he agreed to this variation of his contract of employment on 27 November 2002.

(c) Despite this variation of contract, the inconsistencies of treatment in dealing with boners who submitted dirty bones continued. In January 2003 Paul Monk was given a choice as between losing his piece rate for a dirty quarter or receiving a disciplinary warning. We were struck by the fact that Dermot Maguire did not lose his piece rate in similar circumstances on 3 September 2003 – which, we note, was just two days before the applicant's alleged incident on 5 September 2003. Dermot Maguire and T Wilson offered to clean their bones immediately the defect was pointed out to them. Paul Connolly admitted to throwing up a dirty bone on 1 October 2003. Mr Maguire let him off with a warning, and did not deduct his piece rate. These workers appear to have readily accepted that they should clean a bone that was theirs. This is in contrast to Barry McLean's situation on 12 February 2004, who disputed that the bone was not perfectly cleaned, but went on to clean it anyway.

(d) The tribunal has carefully considered the video evidence of the production process at 11.15 am approximately on 5 September 2003. On the video, the applicant was furthest from the camera. Therefore, we cannot determine either way if his was the bone that Mr Maguire found to be unsatisfactory. Whilst the photographs we saw of the bone in question did appear to have viable meat left on it, we are not satisfied by the respondent's evidence that this bone was in fact the one that had been processed by the applicant on 5 September 2003.

(e) The gap of time of a few minutes from Mr Maguire seeing the applicant throw a quarter into the bin and Mr Maguire stopping the line leads to the possibility (at least) that the defective quarter bone had not been processed by the applicant, but by some other boner. The applicant did not say that the bone was his. We have found that he immediately offered to clean the bone if the quarter was his. But since he was not in a position to say for certain that the defective bone was his, it follows that he did not immediately offer to clean the bone on the factory floor. However, the applicant soon went on to say that he would clean the bone anyway to save his piece-rate pay. Mr Maguire then said that he also required the applicant to admit that the dirty bone was his, before he could finish the bone to a satisfactory standard. The insertion of this pre-condition was not part of the varied contractual term agreed to by the parties on 27 November 2002. We have made no finding that this pre-condition was a feature of the custom and practice in the meat processing industry.

(f) By inserting this new pre-condition into the applicant's contract before allowing him to process the bone to a satisfactory standard, the respondent was inserting a new contractual provision into the applicant's contract of employment. The applicant disagreed with this. This pre-condition was not applied to Dermot Maguire on 3 September 2003 or indeed to Barry McLean on 12 February 2004.

(g) The applicant's evidence was generally more consistent than that of the respondent's witnesses. For example, Mr McAuley conceded he was mistaken when he gave evidence that he had discussed the matter with Mr Maguire on 8 September 2003. Moreover, Mr McAuley's evidence was that he had informed the applicant that he would not be paid for the hind quarter in question, whereas Mr Maguire said that he had given this information to the applicant. We found that it was Mr Maguire who told the applicant of this on 10 September 2003. The tribunal is satisfied, on balance of probabilities, with the applicant's evidence that he satisfactorily processed forty seven quarters on 5 September 2003, and was paid for forty six such quarters. It follows that we determine that he has suffered an unlawful deduction of £1.75, pursuant to Article 45(3) of the 1996 Order.

(h) Pursuant to Article 56(a) of the 1996 Order, the tribunal declares that the respondent had made an unlawful deduction of £1.75 from the applicant's pay for work done on 5 September 2003, and orders that this amount be repaid to the applicant.

(i) The tribunal will re-list the complaint for further evidence and/or submissions on the second issue, as set out in paragraph six above.

(j) No further or other Order is made.

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

Chairman:

Date and place of hearing: 27 September 2004, Omagh

22 October 2004, Strabane

6 December 2004, Belfast.

Date decision recorded in register and issued to parties: