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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Rennie v H McLarnon and Son Limited [2010] NIIT 1491_10IT (11 November 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/1491_10IT.html
Cite as: [2010] NIIT 1491_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1491/10
CLAIMANT: Robert Rennie
RESPONDENT: H McLarnon and Son Limited
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and compensation, in that respect, of £3,700.00 is awarded. A penalty of £300.00 is also awarded in respect of failure to provide a written statement of terms and conditions.
The total compensation is therefore £4,000.00.
The claims for unauthorised deductions from earnings and breach of contract are dismissed.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Mr P Cairns
Mr N Wilkinson
Appearances:
The claimant appeared in person.
The respondent was represented by Mr Carson, its Office Manager.
THE ISSUES
1. The issues for the tribunal to determine were:-
(i) Whether the claimant had been unfairly dismissed by the respondent.
(ii) Whether there had been unauthorised deductions from the claimant’s wages.
(iii) Whether the respondent had been in breach of contract.
(iv) Whether the respondent had provided the claimant with a written statement of terms and conditions.
The tribunal heard evidence from the claimant and from Mr Carson.
RELEVANT FACTS
2. The claimant was employed by the respondent as a roofer from 1 September 2008. The respondent company is a roofing and cladding sub-contractor and is jointly owned by Steven McLarnon, Christopher McLarnon and Barry McLarnon.
3. The claimant was initially paid £55.00 per day net on a five day week. That net figure was reduced to £50.00 per day by agreement from 22 December 2008.
4. The claimant took on extra duties and his net daily rate was increased to the original figure of £55.00 from 24 August 2009.
5. The claimant’s net daily rate was reduced again on 25 January 2010 to £50.00 but that was without the claimant’s consent and apparently without the claimant noticing the reduction.
6. The claimant alleged that he had not received full payment for the overtime he worked during his employment but was unable to point to any specific dates and times and had no documentary evidence to support that claim.
7. The claimant was required to attend two Construction Skills Register Courses. The course fees were deducted from his wages. There were four deductions of £45.00 and one deduction of £126.00. The claimant alleged that these deductions were unauthorised deductions from earnings. The claimant did not lodge any form of written grievance or complaint with the employer before commencing tribunal proceedings.
8. The claimant had been given overnight access to his child by Court Order on alternate Friday and Saturday nights. That meant that he was generally unable to work overtime on Saturdays. While the claimant had worked some overtime on two Saturdays during his approximately 19 months employment, the tribunal accepts his unchallenged evidence that Christopher McLarnon was aware of the issue and had agreed that the claimant was not required to work overtime on Saturdays.
9. The claimant received a series of text messages on Friday, 5 March 2010 from both Steven and Christopher McLarnon requiring him to work overtime on Saturday, 6 March 2010. Christopher McLarnon sent him a text which said:-
“I need u in 2morrow. I told use that over a week ago so if u nt in the mara don’t wori bout anymore work.”
10. The practice of the respondent was to text each of its roofers on Sunday evening with details of when they would be picked up on Monday morning for work. The claimant’s colleagues received a text as normal on Sunday, 7 March and the claimant received no text.
11. The claimant had no further contact from the respondent until his then Solicitor wrote a letter to the respondent some weeks later.
12. The claimant’s evidence was that he had never received a written contract or written statement of terms and conditions.
The respondent alleged that one had been sent out but there was no proof of posting and no satisfactory explanation of the respondent’s failure to ensure that a written contract was signed by the claimant.
DECISION
13. The claim for unauthorised deductions from wages in respect of overtime payments is dismissed.
The claimant was unable to specify any dates on which full overtime had not been paid and was unable to quantify any loss. Furthermore no written grievance had been lodged in this respect as required by the Employment (Northern Ireland) Order 2003.
14. The claim for unauthorised deductions from earnings in respect of CSR Training Courses is also dismissed for non-compliance with the 2003 Order.
15. The tribunal is satisfied that the text from Christopher McLarnon to the claimant on 5 March 2010 was a clear and unambiguous dismissal of the claimant. The respondent sought to argue that the text simply indicated that the claimant would not be offered work on that particular sub-contract. That is not credible. The plain words of the text, together with the absence of the usual Sunday evening text entitled the claimant to conclude that he had been dismissed.
16. The respondent failed to follow any of the steps in the statutory dismissal procedure set out in the 2003 Order. The dismissal was therefore automatically unfair. The tribunal has concluded that, in all of the circumstances of the case the compensatory award should therefore be uplifted by 25%. There are no grounds upon which any deductions could be made from the compensatory award.
17. The grossed up daily rate was not provided by either party and, in the absence of any specific evidence, is taken to be £60.00 per day. The tribunal concludes that the appropriate net daily rate, in the absence of any agreement from the claimant, remained at £55.00.
18. The claimant obtained alternative employment on 29 April 2010 with a take home pay of £210.00 per week. This increased to £375.00 net per week from 6 July 2010.
19. Compensation for unfair dismissal is calculated as follows:-
Basic Award
One complete year’s service x weekly gross = £ 300.00
Compensatory Award
5 March 2010 to 29 April 2010
8 weeks x weekly net (£275.00) = £2,200.00
30 April 2010 to 5 July 2010
8 weeks x £65.00 (reduction in wages) = £ 520.00
Total compensatory Award = £2,720.00
Statutory uplift at 25% = £ 680.00
Total Unfair Dismissal Compensation = £3,700.00
20. The tribunal is satisfied on the balance of probabilities that the claimant was not given a written statement of terms and conditions and, in all the circumstances of the case, awards a penalty of one week’s pay, ie £300.00.
21. The attention of the parties is drawn to the attached recoupment notice. The prescribed element is £2,720.00 and relates to the period from 5 March 2010 to 5 July 2010. The amount by which the award exceeds the prescribed element is £1,280.00.
22. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 October 2010, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 1491/10
CLAIMANT: Robert Rennie
RESPONDENT: H McLarnon and Son Limited
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE
RECOUPMENT OF JOBSEEKER’S
ALLOWANCE/INCOME
SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
£
(a) Monetary award 4,000.00
(b) Prescribed element 2,720.00
(c) Period to which (b) relates: 5 March 2010 to 5 July 2010
(d) Excess of (a) over (b) 1,280.00
1. The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.