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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAuley v Bennett Robertson Ltd [2010] NIIT 7561_09IT (26 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7561_09IT.html
Cite as: [2010] NIIT 7561_9IT, [2010] NIIT 7561_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7561/09
CLAIMANT: Patrick McAuley
RESPONDENT: Bennett Robertson Ltd
DECISION
The unanimous decision of the tribunal is that the claimant’s contract of employment has been breached, the claimant has suffered an unlawful deduction from wages and was unfairly dismissed by the respondent. The respondent shall pay the claimant £12,953.63.
Constitution of Tribunal:
Chairman: Ms Bell
Members: Ms Kearney
Mr Welsh
Appearances:
The claimant was represented by Ms McKenna of Messrs T R Gibson & Company, Solicitors.
The respondent did not appear and was not represented.
1. The claimant claimed that he had been unfairly dismissed by the respondent, by way of constructive dismissal, that he had suffered breaches of his contract of employment and unauthorised deductions from wages in respect of pay and expenses amounting to £4,403.63 and sought two months’ notice pay.
2. The respondent in its response accepted the claimant’s claim for outstanding salary and expenses but resisted the claim of unfair dismissal on the basis that the claimant had resigned voluntarily the day after a payment was made toward outstanding salary, had advised directors that he was claiming constructive dismissal to make a claim against an insurance policy, and that no notice payment was sought by him. The respondent stated that due to its financial situation money was not available to pay salaries rather than it having been withheld, that the claimant was kept fully appraised of the situation and delays in payment were kept to a minimum.
ISSUES
3. The issues to be determined by the tribunal were:-
(1) Has the claimant suffered a breach of contract or unlawful deduction from his wages?
(2) Was the claimant dismissed? If so,
(3) Was the claimant unfairly dismissed?
(4) Is the claimant entitled to two months’ notice pay?
SOURCES OF EVIDENCE
4. The tribunal considered the claim, bundle of documentation from the claimant and heard the claimant’s oral evidence.
FINDINGS OF FACT
5. The claimant, born on 8 June 1978, was employed by the respondent on 23 April 2007 as a senior mechanical engineer. The claimant under his contract of employment was to be paid by the respondent monthly in arrears; his pay was £2,656.57 gross being in or around £1,900.37 net per month. The claimant’s contract of employment also provided for the claimant to be reimbursed travel expenses in relation to the use of his private car on the company’s behalf and certain other expenses, the claimant used his own car to travel to building sites in connection with his work.
6. The respondent experienced cash flow difficulties and as a result the claimant was not paid expenses due to him arising from 20 December 2007 relating to his travel and car parking in carrying out his job and in 2009 did not receive his pay due for April until 8 May, pay for May until 29 June, pay for June until 5 August, and pay for July was only part paid in the sum of £1,500 on 4 September 2009, the balance not being paid until 23 September after the claimant’s resignation. No further payment has been received by the claimant from the respondent in respect of monies outstanding to him.
7. Whilst the respondent informed the claimant of its cash flow difficulties the claimant did not at any time agree to the late payment of his wages and expenses nor consented to a variation of his contract of employment in respect of when remuneration was to be paid to him. On 28 August 2009 the claimant sent a grievance e-mail to the respondent indicating that he found his current financial situation untenable.
8. In response to the claimant’s correspondence the respondent’s managing director, Mr Gary Bennett, met briefly with the claimant and told him that the company was having cash flow difficulties and that he would be paid in due course.
9. The claimant found the ongoing delay and non-payment of his wages and expenses untenable and in response resigned from his employment with the respondent on 7 September 2009.
10. The claimant registered as self-employed on 1 November 2009 and since then has earned on average £375 net per week.
LEGISLATION
11. Under Article 126 of The Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.
12. Circumstances in which an employee is dismissed by his employer include at Article 127(c) of the 1996 Order if the employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.
13. Whether an employee is entitled to terminate his contract of employment is to be determined in accordance with contract law. It is established in case law that it is not enough for the employee to leave merely because his employer acted unreasonably but is a question of whether his employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or, which shows that the employer no longer intends to be bound by one or more essential terms of the contract. The breach may be actual or anticipatory, it must be of sufficient importance, or the last in a series of incidents to justify the employee resigning, the employee must not leave for a reason other than the breach and must not delay in doing or will risk being deemed to have waived the breach.
14. Under Article 130 of the 1996 Order, in determining whether the dismissal is fair or unfair it is for the employer to show the reason for dismissal and that it is either a reason set out at paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
15. Where an industrial tribunal finds that the grounds of a complaint of unfair dismissal are well-founded the orders it may make are set out at Article 146 of the 1996 Order and include orders for reinstatement or re-engagement and otherwise compensation. How compensation is to be calculated is provided in Articles 152 to 161.
16. Article 45 of the 1996 Order provides that an employer shall not make a deduction from wages of a worker employed by him save where authorised by statutory provision or relevant written contractual provision or agreed to in writing by the claimant before the event giving rise to the deduction. A deduction occurs where a worker is on any occasion paid less than the total amount of wages properly payable to him. The meaning of wages is set out in Article 59 but excludes any payment in respect of expenses incurred by the worker in carrying out his employment.
17. The industrial tribunal has jurisdiction under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 to deal with an employee’s claim for damages for breach of his contract of employment or for a sum due under that contract.
18. The maximum amount of a week’s pay for the purpose of calculating a basic award of compensation for unfair dismissal under Article 23 of the 1996 Order as amended at the effective date of termination of the claimant’s employment was capped at £350.00 per week.
APPLICATION OF LAW TO FACTS FOUND
19. Based on the respondent’s acceptance of the claimant’s claim for outstanding salary and expenses and the claimant’s evidence the tribunal is satisfied that the claimant has suffered an unauthorised deduction from his wages under Article 45 of the 1996 Order in respect of unpaid wages relating to August and September 2009 and that the respondent has in breach of the claimant’s contract of employment failed to pay the claimant the aforesaid wages and furthermore expenses amounting in total to £4,403.63 and orders the respondent to pay the claimant £4,403.63 in respect thereof.
20. On consideration of all the evidence before it the tribunal is satisfied that whilst the respondent may have been experiencing genuine financial difficulties and had insufficient money available to make payments, that it was contractually obliged to make payments on time and that its ongoing failure to pay the claimant his remuneration on time, to pay him in full as required under his contract of employment and to reimburse expenses incurred by the claimant in connection with doing his job, was a continuing breach of contract, and together amounted to a breach of sufficient importance going to the root of the contract such as to entitle the claimant to resign and claim constructive dismissal. The tribunal accepts the claimant’s evidence that he did not at any time consent to a variation of his contract to allow the respondent to delay making payments due to him and that he did not resign for the purpose of making a claim under an insurance policy but did so because he found the uncertainty of the ongoing resulting financial situation untenable.
21. The tribunal find that the respondent has failed to show a potentially fair reason under Article 130 of the 1996 Order for the claimant’s dismissal and the tribunal accordingly finds that the claimant was unfairly dismissed. As the claimant will be compensated for any loss of notice under compensation to be awarded for loss of earnings arising from his unfair dismissal the claimant is not entitled to additional compensation for two months’ notice.
22. The tribunal awards compensation for the claimant’s unfair dismissal as follows:-
Basic Award
Calculated in accordance with Article 153 of the 1996 Order
£350 x 1 x 2 = £ 700.00
Compensatory Award
Loss of Earnings
7 September 2009 – 12 April 2010
Approximately 31 weeks @ £475 = £14,725.00
Less earnings from 1 November 2009 – 12 April 2010
Approximately 19 weeks @ £375 = £ 7,125.00
£14,725.00 - £7,125 = £ 7,600.00
Loss of Statutory Rights = £ 250.00
CONCLUSION
23. The unanimous decision of the tribunal is that the claimant’s contract of employment has been breached, the claimant has suffered an unlawful deduction from wages and was unfairly dismissed by the respondent. The respondent shall pay the claimant £4,403.63 in respect of outstanding salary and wages and £8,550 compensation for unfair dismissal, being a total of £12,953.63.
24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 April 2010, Belfast
Date decision recorded in register and issued to parties: