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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cusack v Down Development Limited [2012] NIIT 01229_12IT (26 October 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1229_12IT.html
Cite as: [2012] NIIT 1229_12IT, [2012] NIIT 01229_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1229/12
CLAIMANT: Damian Cusack
RESPONDENT: Down Developments Limited
DECISION
The decision of the tribunal is that the claimant’s claim of automatic unfair dismissal on the grounds of the infringement of a statutory right namely the right not to suffer an unlawful deduction of wages is made out and the tribunal awards the claimant £9,788.00.
Constitution of Tribunal:
Chairman: Mr I Wimpress
Members: Mr B McAnoy
Mr P Sidebottom
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr Gary Black.
The Claim and the Response
1. The claimant‘s claim comprised a claim of automatic unfair dismissal for breach of a statutory right and notice pay. The respondent in its response denied that the claimant was dismissed and maintained that he resigned without notice.
Sources of Evidence
2. The tribunal heard oral evidence from the claimant, Mr Simon Harrison, Mr Gary Black and Miss Julie Nelson. The tribunal also received a small bundle of documents from the respondent together with a short affidavit sworn by Mr Daniel Scullion.
Preliminary Issue
3. On the basis of the oral and written evidence that we have received we are satisfied that the correct identity of the respondent is Down Developments Limited and the title to the proceedings is amended accordingly.
The Facts
4. The claimant was employed by the respondent as a builder. He had worked off and on for the respondent over the years mainly in a self employed capacity but in January 2012 he was taken on as a full time employee. He was paid £300 per week net and was usually employed with a number of other workers on a particular site. The respondent had 15 employees at the material time and now employs 18 as well as engaging a number of sub-contractors.
5. Around 5.00 pm on Tuesday, 12 June 2012 the claimant received a text message from Mr Peter Black, the General Manager of the respondent business, on his mobile phone which according to the claimant read as follows:
“Tell Scruff my da says the wages are being cut by 10%”.
6. Scruff is the nickname of Daniel Scullion, another employee and the foreman, who was travelling in the same van as well as 3 other employees. Mr Scullion was driving the van and the claimant read the text to him. They talked about the message amongst themselves and according to the claimant they all thought that what was being suggested was unfair.
7. The claimant phoned Mr Black on Thursday 14 June 2012 between 2.30 pm and 3.00 pm. The claimant asked him if the wages were being cut. According to the claimant he heard Mr Black speaking with his father, Mr Gary Black. Mr Black senior came on the phone and asked “Who wanted to know?” The claimant identified himself and Mr Black senior responded, “As from tomorrow there’s no work for you. Does anyone else want to know?” The claimant didn’t say anything as he was concerned that if he named others they would be sacked too.
8. Mr Black senior denied having the alleged telephone conversation with the claimant. Mr Peter Black was not called to give evidence at the hearing. Miss Nelson, the Office Manager, gave evidence that Peter Black spent most of his time away from the office at various sites where the respondent was engaged in work, however she was able to ascertain from her records that on the day in question he attended the office. No telephone call of the nature described by the claimant took place in her presence but it is possible that it could have taken place when Miss Nelson was out of the office for example when she went out at lunchtime. If such a call had taken place while she was in the office she would have been aware of it as she worked at the same desk as Mr Gary Black. Mr Harrison gave evidence that he was shown the text message by the claimant on 14 June 2012 and that the sender came up as Peter Black. The claimant told Mr Harrison that he was going to make a phone call about the wages being cut. According to Mr Harrison, some ten to fifteen minutes later the claimant came back and said, “I’ve been told that I have no more work.” Mr Black did not challenge Mr Harrison’s evidence but indicated that Mr Peter Black did not have authority to communicate information about pay cuts to employees. Mr Black suggested that this information or “tittle tattle” as he described it had been gleaned by Peter Black at the dinner table and passed on to the claimant whom he was on friendly terms with.
9. As a result of the telephone call the claimant believed that he had been dismissed. The claimant worked for the remainder of the day but did not return the next morning. Thereafter the claimant sought advice from the Citizens Advice Bureau which assisted him in formulating a grievance letter. This letter was sent to Mr Gary Black by recorded delivery post on 15 June 2012 and reads as follows:-
“I am writing to seek your help in resolving a problem that I experienced at work. It is a problem that is causing me great concern. I have been unable to solve without bringing to your attention. I hope in bringing the matter to your attention, you can deal with the issue quickly and decisively.
I have worked for your company since January 2012. Recently I was informed of the company’s decision to deduct some employee’s wages by 10%. As there is nothing in my contract which entitled the company to apply such a deduction, I raised concerns about this.
After raising the issue, I was informed of the company’s decision to dismiss me with immediate effect and without notice.
I believe that I have been dismissed for simply trying to exercise my rights not to have unauthorised deductions applied to my wages. I believe this amounts to automatic unfair dismissal under the Employment Rights Act 1996 (Employment Rights (NI) Order in N Ireland) (which incorporates the Wages Act 1986) which gives protection to employees who try to enforce their rights.
Furthermore, I believe that I had a statutory right to 1 week’s notice of dismissal. As my employment was terminated without notice, I am entitled to 1 week’s pay in lieu of notice.
I would ask you to consider the above points and look forward to your proposals for resolution of this matter.”
10. Thus the claimant with the assistance of the Citizens Advice Bureau set out his position very clearly although perhaps in a rather formulistic manner. We do not criticise the Citizens Advice Bureau or the claimant for this but it is regrettable that the manner in which the events unfolded were not described more directly and in some detail. We also note that the claimant did not actually have a written contract at this stage in his employment but this was not his fault and it does not deprive him of the right not to have wages unlawfully deducted.
11. Mr Gary Black replied on 22 June 2012. Mr Black rejected the allegation of unfair dismissal as unfounded and stated that the claimant left employment without notice. Mr Black indicated that he was happy to advise and offer help to resolve the problem and that he would arrange a meeting to discuss the allegations to which the claimant could bring with him a representative. Before any meeting was set up Mr Black considered that it would be beneficial and necessary to all parties if the claimant answered the following questions:-
“1. Who informed you of the company’s decision to deduct 10% of your wages?
2. What way was it communicated?
3. What contract do you refer to?
4. Who did you raise concerns to?
5. What way was it communicated?
6. Who informed you of the company’s decision to allegedly dismiss you?
7. What was the reason given?
8. What way was it communicated?
9. Was there any unauthorised deductions applied to your wages?”
Mr Black concluded the letter by saying that on receipt of this information he would advise the claimant of provisional dates for the meeting for him to consider and wished him well in his new employment.
12. This letter was sent to the claimant to his home address by first class post. According to the claimant he did not receive the letter and he proceeded to lodge his claim form on 4 July 2012. The respondent did not follow up the letter with a reminder and did not seek further particulars after proceedings had been initiated but merely drew attention to the unanswered letter in its response. We rather suspect that the claimant did receive the letter but the respondent was not able to prove it and failed to take obvious steps to follow it up. This is important because the respondent thereby managed to arrive at the tribunal hearing with limited knowledge of some key facts and without a potentially important witness, Mr Peter Black. However, as appears from the sworn witness statement of Mr Scullion the respondent was made aware of the contents of the text message at a Case Management Discussion on 2 October 2012 although not its source.
13. At the close of the evidence the tribunal considered an application by the respondent to adjourn the hearing to enable Mr Peter Black to attend and give evidence. The claimant objected to the application and the tribunal refused the application as we were satisfied that the respondent could and should have anticipated that Mr Peter Black would be able to give relevant evidence.
14. The claimant was able to obtain a day’s work from time to time after he left the respondent’s employment. He did not produce any written record of this work but believed that he secured approximately ten days work at £50.00 per day. The claimant was also in receipt of Jobseekers Allowance between the date of his dismissal and the date of hearing.
The Law
15. Article 45 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides as follows:-
“(1) An employer shall not make a deduction from wages of a worker employed by him unless –
(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or
(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”
Article 135 of the 1996 Order insofar as relevant provides as follows:
“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee –
(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or
(b) alleged that the employer had infringed a right of his which is a relevant statutory right.
(2) It is immaterial for the purposes of paragraph (1) -
(a) whether or not the employee has the right, or
(b) whether or not the right has been infringed; but, for that paragraph to apply, the claim to the right and that it has been infringed must be made in good faith.
(3) It is sufficient for paragraph (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.
(4) The following are relevant statutory rights for the purposes of this Article –
(a) any right conferred by this Order ………… for which the remedy for its infringement is by way of a complaint or reference to an industrial tribunal.”
Issues
16. The hearing gives rise to the following issues:-
1. Was the claimant sent a text informing him that wages were going to be reduced by 10%?
2. Was the claimant dismissed?
3. If so, was the reason for dismissal that the employer had infringed a relevant statutory right?
4. Was the claim that a relevant statutory right was infringed made in good faith?
5. What compensation is the claimant entitled to receive?
Conclusions
17. (1) Ultimately it was not disputed that Mr Peter Black sent the claimant the text about wages being reduced. Whether or not he had authority to do so is not relevant for the purposes of these proceedings.
(2) We are satisfied on the balance of probabilities that the claimant was told by Mr Gary Black as follows: “As from tomorrow there’s no work for you.” We regard Miss Nelson as a truthful witness but she may have been out of the office when the call took place. Mr Harrison’s testimony while simply relating to what the claimant is alleged to have told him struck us as truthful and was not challenged and the claimant’s account struck us as credible. The words spoken by Mr Gary Black are undoubtedly sufficient to constitute a dismissal in our opinion.
(3) The evidence establishes that the reason for dismissal was that the claimant had raised a relevant statutory right namely the right not to have unlawful deductions made from his wages and that the respondent infringed this right in reacting to the telephone call by dismissing the claimant.
(4) We are satisfied that the claim that a relevant statutory right was infringed was made in good faith. There is no evidence to suggest that the claim was made other than in good faith.
(5) The claimant is therefore entitled to compensation for automatic unfair dismissal. In view of the circumstances in which the dismissal took place and the steps taken by the respondent to commence the statutory procedure by writing to the claimant and inviting him to a meeting it could not be said that the non-completion of the statutory procedures was attributable to the respondent.
Award
18. The claimant’s date of birth is 22 October 1982 and his average pay was £369.00 gross and £300.00 net per week during his employment with the respondent.
Basic Award
£369.00 x 1 = £369.00
Loss of Statutory Rights
£250.00
Notice Pay
£369.00 x 1 = £369.00
Compensatory Award
Loss from date of dismissal to date of hearing
£300.00 x 1 x 19 = £5,700.00
Future loss - 12 weeks
£300.00 x 12 = £3,600.00
Total Compensatory Award = £9,300.00
Less mitigation = £ 500.00
Sub- total = £8,800.00
Total Award: £9,788.00
19. As the claimant was in receipt of Jobseeker’s Allowance following his dismissal the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. Rule 4(3) requires that the tribunal set out:-
(a) the monetary award;
(b) the amount of the prescribed element, if any;
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed element.
20. For the purposes of these proceedings the monetary award is £9,788.00. The prescribed element is the amount of compensation for loss of earnings up to the date of the hearing. The relevant dates are 14 June 2012 to 26 October 2012. The tribunal finds that the amount of the prescribed element is £5,700.00. The amount by which the monetary award exceeds the prescribed element in this case is £4,088.00.
21. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 26 October 2012, Belfast.
Date decision recorded in register and issued to parties: