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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Franckevica v Mark McCaffrey Mark McCaffrey Casa Foods Ltd Tenderlean Ltd (in liquidation... Aidan Rothwell (Director) Mark McCaffrey Casa Foods Ltd Tenderlean Ltd (in liquidation... Aidan Rothwell (Director) Kamal Malhotra [2012] NIIT 01216_11IT (02 April 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/01216_11IT.html
Cite as: [2012] NIIT 01216_11IT, [2012] NIIT 1216_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1216/11
1291/11
1431/11
CLAIMANTS: 1. Evita Franckevica
2. Guntis Franckevics
RESPONDENTS: 1. Mark McCaffrey
2. Casa Foods Ltd
3. Tenderlean Ltd (in administration)
4. Aidan Rothwell (Director)
5. Kamal Malhotra
DECISION
The unanimous decision of the tribunal is that:-
The first claimant’s claim for racial discrimination is dismissed. The tribunal does not have jurisdiction in relation to her claims under the Working Time Regulation and for health and safety detriment and those claims are dismissed. Her claim for an unlawful deduction from her wages is well-founded and the second respondent is ordered to pay £3,173.24 to the first claimant.
The second claimant’s claim for an unlawful deduction from his wages is well-founded and the third respondent is ordered to pay him £312.00. He is entitled to compensation of £5,638.43 for his unfair dismissal by the third respondent. His claim for a redundancy payment is dismissed.
Constitution of Tribunal:
Chairman: Mr B Greene
Members: Mr H Stevenson
Mr J Hughes
Appearances:
The claimants appeared in person.
Respondent 1 attended in person on 16 December 2011.
Respondents 2-5 were neither in attendance nor represented.
Interpreter: Ms Victoria Korola
1. The tribunal heard evidence from both claimants and Mr McCaffrey the first respondent. The tribunal also had regard to the claim forms, a partial response from Mr McCaffrey in relation to claim reference No 1291/11 and five bundles of documents amounting to 162 pages.
THE CLAIM AND THE DEFENCE
2. (1) The first claimant made a claim against respondents 1-4 for race discrimination, health and safety detriment, under the Working Time Regulations, under the National Minimum Wage Act, and for failure to pay a redundancy payment. The claim for failure to pay a redundancy payment was rejected and the first claimant did not seek to challenge that.
(2) The second claimant claimed against all 5 respondents. He claimed failure to pay wages, ie, an unauthorised deduction, a failure to pay a redundancy payment, a claim under the National Minimum Wage Act and constructive dismissal. His claim under the National Minimum Wage Act was rejected and the second claimant did not seek to challenge that.
(3) In the course of the hearing both claimants withdrew their claims against the fourth respondent Aidan Rothwell (Director) and accordingly the claims against the fourth respondent are dismissed.
(4) The second claimant withdrew his claim against the fifth respondent, Kamal Malhotra and accordingly that claim is also dismissed.
(5) The first respondent, though notified of the hearing on 5 and 6 December 2011, did not attend, was not represented and did not make any attempt to inform the tribunal that he faced any difficulties attending on either of those days.
(6) The first respondent contacted the Office of the Tribunals by telephone on 6 December 2011 as the hearing was progressing, professed ignorance of the hearing but asked how he could contact the tribunal. He was told he could contact the tribunal by e-mail. At 1.15 pm on 6 December 2011 the claimant forwarded an e-mail to the tribunal. The hearing had ended but the tribunal had not made its decision. The e-mail stated;-
“To the tribunal Chairman
I understand a case is being heard today concerning Evita and Guntis Franckevics.
I would like to put it on record that a separate case involving fraud of £12387.83 relating to over subscribed hours by Evita Franckevics, has now been reported to the police.
A formal statement complete with evidence by way of documentation and witness statements will be forwarded in due course.
Yours sincerely
Mark McCaffrey.”
(7) Following the e-mail from the first respondent the panel did not proceed to make its decision. It arranged a further hearing for 16 December 2011 to allow the first respondent to make his application to adduce further evidence and to give the claimants the opportunity to object. The first respondent did not provide any of the evidence or documentation mentioned in his email of 6 December 2011.
(8) The first respondent attended on 16 December 2011 when the tribunal, having listened to his application and heard from the claimants, permitted him to give evidence and to make submissions in relation to those parts of the claims about which he had entered a response.
ISSUES
3. (1) Did the first claimant suffer race discrimination at the hands of the respondents?
(2) If so, to what remedy is she entitled?
(3) Did the first claimant suffer a detriment under the Working Time Regulations?
(4) If so, to what remedy is she entitled.
(5) Did the first claimant suffer an unlawful deduction from wages?
(6) If so, to what remedy is she entitled?
(7) Did the first claimant suffer a health and safety detriment?
(8) If so, to what remedy is she entitled?
(9) Did the second claimant suffer an unlawful deduction from wages?
(10) If so, to what remedy is he entitled?
(11) Is the second claimant entitled to a redundancy payment?
(12) Did the second claimant suffer a constructive dismissal?
(13) If so, to what remedy is he entitled?
FINDINGS OF FACT
4. (1) Both claimants are Latvian nationals. English is not their first language. Their claim forms were completed by themselves. Their evidence was given with the assistance of an interpreter.
(2) The first respondent was the manager in the third respondent company.
(3) The second respondent is a bakery located at Derrylin, County Fermanagh. Its principal customer was the third respondent.
(4) The third respondent is in administration.
(5) The first claimant was employed by the second respondent from 30 September 2010, to the 27 March 2011 as manager of the bakery although on occasions her wages were paid through Tenderlean Retail. She was paid per hour £7.50 gross, £3.99 net.
(6) The first respondent did not hold any position within the second respondent company nor was he the owner of the company. However, his mother was the owner of the second respondent and he acted on her behalf in relation to employment matters with both claimants.
(7) The first claimant worked 80-90 hours per week in the bakery. She was one of 5 Latvians who worked there. She kept all the records of hours worked and holidays of all the staff, including herself.
(8) The second claimant was born on 5 August 1986 and was employed by the third respondent from 20 October 2008 until 25 March 2011 as a mechanic. During the last period of his employment with the third respondent he worked at the premises of the second respondent working in the bakery. The second claimant worked 60 to 80 hours per week and was paid £6.50 per hour gross. His average pay was £349.11 per week net
(9) Subsequent to the ending of his employment with the third respondent the second claimant was paid £1,605.42 arrears of pay by Redundancy Payments Branch for 6 weeks unpaid wages due to be received in the weeks commencing 28 January 2011, 1 February 2011, 11 February 2011, 18 February 2011, 18 March 2011 and 25 March 2011. The claimant’s wages were paid two weeks in arrears.
(10) The second claimant was on holiday from 18 to 25 March 2011. He did not receive any holiday pay for either of those weeks. In the week of 18 to 24 March he was entitled to 40 hours at £6.50 per hour gross totalling £260.00 and on 25 March he was entitled to 8 hours at £6.50 per hour which amounted to £52.00 gross.
(11) On 25 March 2011 the second claimant had a discussion with the first respondent about not having received his wages for a number of weeks. The first respondent replied to him that if he did not want to work there he could leave. The second claimant did not return to the workplace.
(12) The second claimant now claims for the 2 weeks holidays, amounting to £312.00, which he was not paid and a redundancy payment.
(13) It is clear from the claim form, in particular paragraphs 6.2c, that the second claimant is making a claim for constructive dismissal as well.
(14) Subsequent to the cessation of his employment with the third respondent the second claimant has not obtained further employment. No evidence was given to the tribunal as to what efforts, if any, the second claimant had made to obtain alternative employment. The tribunal considers that he should have found alternative work at the same rate of payment within 13 weeks of the date of dismissal.
(15) The first claimant alleges that on 8 October 2010 the first respondent had entered the premises of the second respondent where the first claimant and a number of other employees were. He was in a foul mood by reason of a problem that had arisen in the production of bread. The first claimant alleges that he used strong language directed at the Latvian workforce and described them as, “Fucking Latvians”.
(16) The first respondent admits to having gone into the premises on the 8 October 2010, to having been in a foul mood, to have used strong language and to have said, “Fucking hell”. He denies making the comment “Fucking Latvians”.
(17) The first respondent produced copies of wages and hours of work records, kept by the first claimant, which show the first claimant to have been on holiday on 8 October 2010.
(18) The first claimant was afforded the opportunity of commenting on the date of this incident and on cross-examining the first respondent as to an alternative date, if such were appropriate, for this incident. The first claimant did not follow either course of action. Neither did she in any way deny or seek to challenge the accuracy of the records produced by the first respondent.
(19) The first claimant complained about having to work 80 or 90 hours per week as being in breach of the Working Time Regulations.
(20) The first claimant also drew attention to issues about working conditions within the second respondent premises, including the escape of gas and the adverse effect that had on the eyes and skin of the employees, including the first claimant. Although the first claimant claimed a breach of the national minimum wage, in reality it is a claim for unpaid wages. The first claimant’s belief was that as she did not receive any wages for a number of weeks she did not get the national minimum wage.
(21) The first claimant did not receive her wages for weeks 43, 49, 50, 51, 52 and 53, amounting to £3,173.24 gross. The tribunal accepted this evidence having regard to; the claimant’s bank statements, which showed the history of payments received by her from her employer; the hours worked by her; and the records of the amounts owed to her.
(22) The first claimant also sought re-imbursement of payments made by her for goods and items bought by her on behalf of the second respondent. She had not made that claim in her claim form. Faced with the prospect of adjourning the case to make a fresh claim for the costs of these items and goods or to make an amendment application the first claimant abandoned any such claim in these proceedings.
THE LAW
5. (1) Working time may not exceed 48 hours for each seven days in any reference period (Regulation 4 the Working Time Regulations (Northern Ireland) 1998, as amended).
(2) The 48 hours maximum working time does not apply where the worker has agreed in writing that it should not apply provided certain other requirements are met (Regulation 5 the Working Time Regulations (Northern Ireland) 1998, as amended).
(3) A worker has the right not to be subjected to detriment on the ground that the worker has:-
(i) refused to comply with any requirement imposed or proposed by the employer in breach of the Working Time Regulations,
(ii) refused to forego a right conferred by the Working Time Regulations,
(iii) failed to sign a workforce agreement,
(iv) participated in elections for employee representatives or served as a representative,
(v) brought proceedings against the employer under the Working Time Regulations, or
(vi) alleged that the employer had infringed any of the workers’ rights under the Working Time Regulations.
The dismissal of an employee does not constitute a detriment under this provision. (Article 68 The Employment Rights (Northern Ireland) Order 1996).
(4) The enforcement of the working time limits is the responsibility of the District Council or the Health and Safety Executive Northern Ireland.
(5) An employer shall not make a deduction from a worker’s wages unless the deduction is authorised by statute or the worker’s contract or the worker has previously agreed in writing to the making of such a deduction (Article 45(1) the Employment Rights Order (Northern Ireland) 1996).
(6) The non payment of the total amount of wages on any occasion amounts to a deduction (Article 45(3) the Employment Rights (Northern Ireland) Order 1996).
(7) Wages includes holiday pay for the purposes of a claim for unlawful deduction of wages (Article 59(1) the Employment Rights (Northern Ireland) Order 1996).
(8) To establish a constructive dismissal that is unfair the claimant must prove that:-
(i) there was a breach of the contract of employment, and
(ii) the breach went to the core of the contract, and
(iii) the breach was the principle reason for the employee’s resignation, and
(iv) the employee did not delay in resigning after the breach occurred, and
(v) in all the circumstances the respondent acted unreasonably.
(9) When assessing the amount of deduction for an employee’s failure to mitigate his loss, a tribunal should not reduce the whole compensatory award by a percentage. It should instead decide when the employee would have found work and take into account any income which the tribunal then considers he would have received from that other source (Gardiner-Hill v Roland Berger Technics Limited [1982] IRLR 498).
APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES
First Claimant
Race Discrimination
6. (1) The tribunal is not persuaded that the first respondent discriminated against the first claimant. In so concluding the tribunal had regard to the following matters:-
(i) the race discrimination is alleged to have been perpetrated by the first respondent on 8 October 2010 and took the form of abusive language directed at Latvians;
(ii) the first respondent denies having abused Latvians on 8 October 2010;
(iii) the first claimant was not at work on that day as she was on holiday;
(iv) the first claimant, though invited to do so, did not advance any explanation for this discrepancy, nor did she suggest she had given the wrong date for the incident, nor did she cross-examine the first respondent and suggest he was mistaken about the date or that the holiday records were wrong.
Working Time Regulations
(2) The second respondent appears to have been in breach of the working time limits within the Working Time Regulations. Enforcement of this type of breach is not within the jurisdiction of an industrial tribunal. Responsibility for enforcement lies with the District Council and the Health and Safety Executive Northern Ireland.
Unlawful Deduction of Wages
(3) The first claimant was not paid by the second respondent for weeks 49, 50, 51, 52 and 53 which totals £3,173.24 gross. This amounts to an unlawful deduction wages. The claimant is therefore entitled to be paid by the second respondent £3,173.24.
Health and Safety Detriment
(4) The dismissal of an employee cannot amount to detriment under Article 68A Employment Rights (Northern Ireland) Order 1996.
(5) There was not any evidence before the tribunal that the claimant suffered any detriment by trying to enforce her rights and entitlements under the Working Time Regulations.
(6) The tribunal has no jurisdiction in relation to the breach of health and safety alleged to have occurred.
Second Claimant
Unlawful Deduction of Wages
(7) The second claimant did not receive pay for his holidays from the third respondent for weeks 18-24 March and 25 March 2011. This totals £312.00 gross. This is an unlawful deduction of wages. The second claimant is entitled to be paid by the third respondent therefore £312.00 gross.
Constructive Dismissal
(8) The non-payment by the third respondent of the claimant’s wages for a number of weeks by 25 March 2011 amounts to a breach of the second claimant’s contract of employment.
(9) That breach of contract went to the heart of the contract of employment.
(10) The tribunal is satisfied that that was the reason the second claimant left the third respondent’s employment.
(11) There was no delay in leaving by the second claimant.
(12) This amounts to a constructive dismissal.
(13) The non-paying of the first claimant his wages, without his consent or agreement, and the first respondent’s cavalier attitude towards the second claimant’s representations about being paid his wages amounts to unreasonable behaviour by the third respondent.
(14) Accordingly the third respondent unfairly constructively dismissed the second claimant.
(15) There was not any evidence of the second claimant having attempted to mitigate his loss.
(16) The tribunal is of the view that 13 weeks is the appropriate period within which the claimant might reasonably have hoped to have obtained further employment.
(17) His compensation for unfair dismissal is as follows.
Basic Award
£400.00 x 2 = £ 800.00
Compensatory Award
26 March 2011 to 25 June 2011
£349.11 x 13 = £4,538.43
Loss of Statutory Rights = £ 300.00
TOTAL COMPENSATION £5,638.43
Prescribed period is 26 March to 25 June 2011
Prescribed amount £5,638.43 - £4,538.43 = £1,100.00
Redundancy
(16) As the second claimant was unfairly constructively dismissed he is not entitled to a redundancy payment and that element of his claim is dismissed.
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 5, 6 and 16 December 2011, Belfast.
Date decision recorded in register and issued to parties: