Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1806/17

 

 

CLAIMANT: Christine Duncan

 

 

RESPONDENTS: DKY Hair Ltd

 

 

 

DECISION

 

The decision of the tribunal is that the claimant was not dismissed by the respondent and therefore remains an employee. The claimant is entitled to an award of £651.02 on the basis of non-payment of wages.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Wimpress

 

Members: Ms Mulligan

Ms Foster

 

 

 

Appearances:

 

The claimant was represented by Ms Emma McIlveen, Barrister-at-Law instructed by Murphy & Co Solicitors.

 

The respondent represented by Ms Maura Herron, Barrister-at- Law instructed by Tughans Solicitors.

 

 

SOURCES OF EVIDENCE

 

1.                                             The tribunal received witness statements from the claimant, Michelle Young , Laura Rodgers, Karen Myatt and Caoimhe Cosgrove and heard oral evidence from them by way of cross-examination. The tribunal also received a bundle of documents from each party together with a number of additional documents which were produced in the course of the hearing. The parties also helpfully provided an agreed chronology.

 

THE CLAIM AND THE RESPONSE

 

2.                                             The claimant's claim form at section 7.1 included claims of unfair dismissal (including constructive dismissal) together with notice pay, holiday pay, arrears of pay and breach of contract. The end date of the claimant's employment was given as January 2017. The details of the claim was set out at section 7.4 and after setting out the history of the respondent business the claimant alleged that the respondent had breached its duty of care to her which rendered her incapable of working in her working environment and as a consequence she had to remove herself from that toxic working environment in January 2016 when she was suffering from a considerable level of pain which was exacerbated at the early stages by the treatment to which she was exposed at the hands of her two colleagues. The claimant acknowledged that during her period of absence she received full pay for one year up until 27 January 2017. According to the claim form the claimant received no pay whatsoever since that date. The claimant thereby contended that the respondent was guilty of making unlawful deductions from her earnings, breaching her contract of employment and rendering her position as an employee impossible and untenable and on that basis she considered herself to be unfairly dismissed. The claimant also complained of disparity of treatment as between her and her colleagues. The claimant also made reference to locks being changed and claimed that this reinforced her sense of isolation and vulnerability and confirmed irrefutably that she had been unfairly dismissed. She also complained about passwords being changed and being prevented from having access to information contained on the computer system and financial information and bank accounts relating to the business. The claimant attempted to return to work at the beginning of February 2017 but members of staff were rude to her and she felt uneasy around her co-directors. It was clear to the claimant that no-one anticipated her return to work or wanted her to do so. The claimant also discovered that at a meeting in January 2017 staff were advised that she would not be returning to work. The claimant considered that this corroborated her summary dismissal. The claimant also complained about her treatment by junior members of staff and of being shown no respect by them or her co-directors. On this basis the claimant contended that she had been summarily dismissed for reasons unknown to her.

 

3.                                             The respondent in its response treated the matter as a claim of constructive dismissal and rejected that claim. In common with the claim form there was no suggestion that the claimant had resigned from her employment with the respondent. The respondent also denied that there had been any unlawful deduction of wages and agreed with the claimant that she had received her full salary until 27 January 2017. The respondent provided a detailed and lengthy rebuttal and explanation of the various matters of which the claimant made complaint which it is not necessary to set out here.

 

THE ISSUES

 

4.                                             On the basis of the contents of the claim form and the response the tribunal anticipated that constructive dismissal would feature as central issue in the case. However, Ms McIlveen made it clear that the claimant was not pursuing a claim of constructive dismissal. Ms Herron indicated that the respondent disputed that the claimant was dismissed. Accordingly, it is necessary for the tribunal to consider the following issues:

 

(1)                           Whether the claimant was dismissed.

 

(2)                           If so, whether she was unfairly dismissed.

 

(3)                           Whether the claimant suffered an unlawful deduction of wages.

 

(4)                           Whether the claimant is entitled to receive notice pay and holiday pay.

 

THE FACTS

 

5.                                             As indicated above the parties produced an agreed chronology and we have used this both as an outline of the key events with suitable modification, additions and elaboration where necessary.

 

6.                                             In August/September 2010 the respondent business, DKY Hair, launched. There were initially three partners - the claimant, Michelle Young and Elizabeth Kirk.

 

7.                                             In July 2011 Elizabeth Kirk left the partnership.

 

8.                                             On 29 October 2013 DKY became a registered company. The claimant and Mrs Young were appointed Company Directors. As a result the claimant was both a director, a shareholder and an employee of the respondent company.

 

9.                                             On 26 March 2014 Ms Rodgers was appointed Company Director. In consequence the shares were split three ways. The claimant owned 43.3% of the shares. Mrs Young also held 43.3% of the shares and Ms Rodgers held 13.3%.

 

10.                                          On 31 March 2015 the claimant signed a Director's Service Agreement which commenced on the same date. This set out the claimant's terms of employment. Clause 5 of the agreement made provision for the payment of a net weekly salary of £190.00. Clause 10 made provision for the reporting of sickness absence. Clause 11 of the agreement dealt with sick pay and clause 11.1 provided as follows:

 

"If the Director shall be prevented by illness or other incapacity from duly attending to his or her duties then, provided he or she has duly complied with his or her obligations under Clause 10, the Company shall continue to pay the Director his or her full salary until the expiry of a period of 120 working days (whether consecutive or not) in any period of 12 months [and thereafter his or her salary shall continue to be paid 50% of the then full rate for a further period of up to 120 days absence]. Thereafter, any payment of salary during any further period of absence shall be at the discretion of the Board provide that the Director shall be entitled to Statutory Sick Pay ('SSP'). "

 

Clause 14 made provision for termination by either the claimant or the respondent by giving one month's notice. Clause 23 provided that the agreement was deemed to be a contract of employment between the Company and the Director.

 

11.                                          On 21 November 2015 the business moved into new premises at 157 Belfast Road, Bangor.

 

12.                                          In April 2015 Ms Rodgers became pregnant.

 

13.                                          On 27 October 2015 the claimant sought information on the maternity entitlement of Laura Rodgers.

 

14.                                          In December 2015 Ms Rodgers developed pregnancy complications and the claimant developed back complaints. Thereafter Ms Rodgers was off on maternity leave from December 2015 until September 2016.

 

15.                                          On 2 January 2016 t he claimant went off on sick leave due to back pain. The claimant had previously been working a 37 hour week and her gross pay at this time was £250.00 per week.

 

16.                                          Mrs Young was left as sole director running the business and generating income. Both absent directors received full pay in 2016 whilst on sick leave and maternity leave.

 

17.                                          In early January 2016 a Directors meeting took place at the claimant's home. The main purpose of the meeting was to discuss the company's finances. The ongoing payment of the directors' wages was also discussed and Mrs Young indicated that she would endeavor to pay both the claimant and Ms Rodgers going forward.

 

18.                                          In September 2016 Ms Rodgers returned to work.

 

19.                                          On 5 October 2016 Sonia Strain, the cleaner, sent a text to Mrs Young stating there was trouble with outside shutters.

 

20.                                          On the same day Jackie Young, Mrs Young's husband, attended the premises and opened shutters with a screw driver and an allen key.

 

21.                                          New padlocks were ordered for the shutters and at the e nd of October 2016 padlocks were delivered to the business but these were small and inadequate. On 26 October 2016 Christine Jones was set up as payee in Respondent's bank account. Ms Jones was responsible for promoting and advertising the business.

 

22.                                          On 28 October 2016 a Directors Meeting took place. In attendance were the claimant, Mrs Young and Ms Rodgers. The claimant's return to work and a new wage structure were discussed. Suggestions were advanced as to how the claimant might return to work. The meeting ended without agreement on payments or a return to work date. The claimant also agreed in cross-examination that the meeting was very positive in relation to her return to work and she accepted that her pay would reduce to statutory sick pay. After that meeting the claimant decided to ask her fellow directors to buy her out.

 

23.                                          On 28 November 2016 Mrs Young and Ms Rodgers attended the British Hairdressing Awards in London as guests of their colour company, Wella, and took an early flight home in order to be in work the next day.

 

24.                                          On 29 November 2016 the claimant unexpectedly came into the salon and raised several matters with Mrs Young. The claimant accepted in cross examination that she was abrupt and angry. The claimant took issue with the purchase of an upgrade to first class rail ticket to Dublin at a cost of £60, the purchase of a DVD/TV for £160 and the fact that Ms Rodgers whilst only working three days at that stage was being paid at £250 per week. According to Mrs Young the train upgrade was intended as a treat for Ms Myatt as they were attending a course in Dublin because she had worked very hard during the year. Ms Myatt was the salon manager and receptionist. In relation to the DVD player Mrs Young explained that they had just purchased a new Tony & Guy collection of DVDs at the suggestion of their in-salon educator for training purposes. Mrs Young was also aware that it had been agreed between the directors that it was not necessary to consult fellow directors about purchases under £300. In response to the complaint about Ms Rodgers' pay Mrs Young pointed out that the claimant was being paid for a five day week without working any days and questioned how Ms Rodgers could be treated any differently. According to Mrs Young she also said firmly that she wasn't ok with any of this and that she was simply trying her best for both of them and only hoped that they would both return to work soon to ease the pressure on her.

 

25.                                          Mrs Young subsequently spoke to Ms Rodgers about the maternity wage issue and Ms Rodgers contacted the claimant to arrange meeting on the issue. Ms Rodgers sent the claimant a text and asked her if she was free after work so that they could start to make progress and move on. Ms Rodgers also stated that she was unhappy with some of what the claimant said at the meeting. Ms Rodgers also advised the claimant that she was due to move down to sick pay.

 

26.                                          On 30 November 2016 the claimant phoned Mrs Young and said that she wanted out of the business . According to Mrs Young the claimant said that she "was leaving and not coming back. The claimant denied making this comment and when asked in cross-examination what she took from this remark Mrs Young stated that she interpreted it as meaning that the claimant was "gone from the business" and "gone from everything". Ms Rodgers gave similar answers when asked what the claimant had resigned from. Ms Rodgers' answer was "We have no idea. Nothing was clear".

 

27.                                          Following her conversation with Mrs Young on 30 November 2016 the claimant waited for a proposal to buy her out.

 

28.                                          The claimant accepted that she advised an employee, Alana Reilly, that she would not be returning. The claimant stated in cross-examination that she thought she would be given a proposal before her sick leave ended. The claimant rejected the suggestion that she had no intention of coming back to work but conceded that she only went back as there was no offer and her sick line was up.

 

29.                                          On 7 December 2016 the claimant obtained her first sick line which was backdated from 13 June 2016 and ran to 31 January 2017.

 

30.                                          In December 2016 the claimant advised Ms Myatt that she would be sending a proposal herself. Subsequently, a proposal was received in January 2017 requesting that the directors buy her out of the business for £75,000.

 

31.                                          There were issues between the claimant and her fellow shareholder directors with regard to valuation and the claimant arranged for an estate agent to attend the premises for purposes of valuation.

 

32.                                          Around this time Mrs Young and Ms Rodgers agreed that they could no longer afford to pay the claimant's full salary while she was off ill and that arrangements should be made to pay her statutory sick pay and to stop the standing order in respect of her wages. Mrs Young therefore took steps to amend the wage payments to the claimant from £250 per week to the Statutory Sick Pay rate. However, o n 27 January 2017 a standing order for £250 a week payable to the claimant in respect of wages was cancelled. It was not possible to amend the standing order. This was the last electronic payment received by the claimant. The claimant considers that this was the date on which she was dismissed.

 

33.                                          On Tuesday 31 January 2017 the claimant's first sick line expired.

 

34.                                          At the end of January 2017 Ms Rodgers having heard suggestions that the claimant would not be returning to work called a meeting with staff in order to explain the situation to them. Ms Rodgers informed staff that the claimant had asked to be bought out. She also reassured staff about their job security.

 

35.                                          On Thursday 2 February 2017 the claimant attended work without notice to the respondent. She did not consider that it was necessary for her to do so as her sick line was up. The claimant instructed Ms Myatt to introduce individual logins and passwords for staff as a result of HMRC investigation. The respondent submitted that this behaviour was completely at odds with the claimant's contention that she was dismissed on 27 January 2017 when the standing order was cancelled. The claimant learned of its cancellation when no further salary was received, a situation which prevailed until 6 April 2017 when the respondent sent a cheque to the claimant for £615.84.

 

36.                                          Ms Myatt's evidence was that the claimant asked her to change the individual computer codes but no overall code was changed at that time. The respondent submitted that the evidence of Ms Myatt is to be preferred and that the codes were not changed and nor was access denied. We accept Ms Myatt's evidence on these issues. It was further submitted that in any event the information being sought from the computer was financial information and that this was for the shareholding dispute and not to allow the claimant to carry out her duties as an employee particularly as she accepted at the time that she allegedly sought access she was off on sick leave again with a 56 day line.

 

37.                                          On Friday 3 February 2017 the claimant again attended work at 5.15 pm. She went upstairs to one of the beauty rooms where Ms Myatt was totaling up the week's receipts. The claimant demanded that Ms Myatt go and print her copies of all of the weeks' totals. Ms Myatt asked the claimant whether she had spoken with Ms Rodgers and Mrs Young about this and the claimant responded that she was Ms Myatt's boss and was telling her that she had to do this. Ms Myatt continued to resist and said that the claimant should sort this out with Ms Rodgers and Mrs Young. The claimant was standing in the doorway and Ms Myatt asked to be let out of the room. The claimant raised her voice and repeated what she wanted. Ms Myatt again asked to leave the room and this impasse continued until another member of staff passed the door and Ms Myatt asked her to get Ms Rodgers. Ms Rodgers appeared and told the claimant that it was nothing to do with Ms Myatt and that they could sit down and discuss the matter in an hour's time when the salon had closed. Some cross words were exchanged with Ms Rodgers before the claimant left the premises saying that she was going to see her solicitor. The claimant's perspective on this incident is quite different. She regarded her request to Ms Myatt as a reasonable work instruction and gave evidence that Ms Myatt started screaming at her at the top of her voice and denied that she prevented Ms Myatt from leaving the room. The claimant agreed that Ms Rodgers told her that she was upsetting staff. It is not strictly necessary for us to resolve these conflicting accounts. Having heard the protagonists' evidence however we prefer the accounts given by Ms Myatt and Ms Rodgers. The incident is also symptomatic of the breakdown in relationships that had occurred. More pertinently the fact that the claimant attended the business is suggestive at least that she had not resigned.

 

38.                                          On Sunday 5 February 2017 the claimant attended the business premises at approximately 6.00 pm in order to collect scissors and discovered that the internal door would not open. The claimant was therefore unable to gain access that evening.

 

39.                                          On Monday 6 February 2017 the claimant attended the premises at approximately 8.00 am and gained access to the premises via the cleaner, Ms Strain. According to the claimant Ms Strain told her that she had been given a new set of keys and had been told by Mrs Young not to give the claimant a set of keys as it was not in the best interests of the business. Ms Stain also told the claimant that padlocks had been installed on the gate and the shutters. Ms Strain was not called to give evidence. Mrs Young did not give direct evidence on what instructions, if any, were given by her to Ms Strain but did recall Ms Strain informing her subsequently that the claimant had taken Ms Strain's keys and got a set cut for herself.

 

40.                                          On the same day while on the premises, the claimant tried to access the computer system but was unable to do so because the access password had been changed.

 

41.                                          On 2, 6 and 8 February 2017 Michelle Young and Laura Rodgers sent emails to the claimant suggesting mediation.

 

42.                                          On Wednesday 8 February 2017 the claimant obtained a second sick line for 56 days which was backdated to Saturday 4 February 2017.

 

43.                                          On Thursday 9 February 2017 Mrs Young stated that a problem was discovered with the interior door between the upstairs beauty salon and the downstairs hair salon.

 

44.                                          On Friday 10 February 2017 Mr Young replaced the interior door lock.

 

45.                                          Following on from the decision to move the claimant unto statutory sick pay Ms Laura McMullan of Savage & Co, Accountants emailed Mrs Young on 13 February 2017 regarding the breakdown of claimant's statutory sick pay entitlement. This email was copied to the claimant and Laura Rodgers. The email provided a breakdown of the sick pay payable to the claimant up until the end of February 2017 namely £229.97 comprised of one payment of £53.07 and two payments of £88.45. The email also set out ongoing payments of Statutory Sick Pay due to the claimant for the period covered by the sick line which Ms McMullan believed ran up to the week ending 22 April 2017 at £88.45 per week. The endeavours to make such payments to the claimant are not consistent with her having either resigned or been dismissed.

 

46.                                          On 14 February 2017 larger padlocks were fitted to the exterior shutters.

 

47.                                          On 25 February 2017 the respondent's bookkeeper, Ms Caoimhe Cosgrove was using the Ulster Bank online banking system to pay salaries to staff. The claimant was due to be paid £208.97. However, there were no account details listed for the claimant on the online banking system and the claimant was therefore initially excluded from this payment run. Later that day Ms Cosgrove attempted to find bank details for the claimant and found a payee called "Christine" Ms Cosgrove texted Mrs Young and told her that she had found the claimant's bank details on the online banking system and would go ahead and pay her. On 3 March 2017 Ms Myatt phoned Ms Cosgrove regarding a query that she had received from Christine Jones at Systems Sales Consultancy about a payment of £208.97 who did not know that any money was owed to her. Ms Cosgrove then realised that she had paid the wrong Christine. Ms Cosgrove informed Mrs Young and apologized for her mistake. Ms Cosgrove was relatively new to the respondent's business having commenced employment in October 2016. She was gradually easing into the role and had only started making payments to staff and suppliers in February 2017. Prior to this Mrs Young had been made these payments.

 

48.                                          According to the respondent the difference between the figure of £229.97 set out at paragraph 46 above and the figure of £208.97 intended to be paid to the claimant but mistakenly paid to Christine Jones was due to adjustments for tax and national insurance. It was also a monthly payment as opposed to weekly payments which the claimant was previously accustomed to receive .

 

49.                                          At the end of February the claimant discovered that she has not received any payment for February and consulted a solicitor.

 

50.                                          On 3 March 2017 Murphys solicitors sent a five page letter to Mrs Young and Laura Rodgers alleging unfair dismissal and unlawful deduction of wages. The letter contained a variety of complaints about the claimant's treatment most of which were ventilated at the hearing. The complaints raised by the claimant's solicitor and the phraseology used indicated that the claimant also considered that she had been constructively dismissed although the words 'constructive dismissal' were not used. It is clear however that an allegation of constructive dismissal was being made at that stage.

 

51.                                          On 9 March 2017 Tughans solicitors sent a short letter to Murphys solicitors in response to the letter of 3 March 2017. A separate letter to the claimant's other solicitor, Denis Humphrey, was enclosed. The tribunal was not provided with the other letter which it is assumed relates to the shareholder dispute. Tughans' letter did not seek to engage with the claimant's allegations in relation to her treatment but rather sought to dissuade the claimant from bringing a claim on the basis that it might frustrate negotiations in relation to the shareholders dispute. In relation to the non-payment of wages the letter stated as follows:

 

"With regard to your client's sick pay we understand from our clients that they had attempted to make payment of your client's sick pay however this was actually processed in error to Christine Jones, a PR consultant used by the companies, as our clients thought that the 'Christine' noted in their bank records was in fact your client and not Christine Jones. Our clients do not have the correct bank details for your client and have asked us to request that you forward your client's bank account details to us for our clients to then set up the appropriate transfer of any sick pay and a standing order for the sick pay due moving forward."

 

52.                                          No attempt was made to process a payment for the claimant in March.

 

53.                                          On 1 April 2017 the claimant's second sick line expired after 56 days.

 

54.                                          On 6 April 2017 the respondent sent a cheque to the claimant for £615.84. The cheque was accompanied by a compliments slip from Mrs Myatt which stated - "Christine, we do not have your bank details to put straight in to the Bank. Karen." No explanation was provided as to how this amount was calculated.

 

55.                                          According to the claimant based on Ms McMullan's calculations this amount should have been £672.22 gross or £651.02 allowing for deductions. The claimant contended that that payment of Statutory Sick Pay was only made to her as a result of her making allegations of unfair dismissal. While it is correct in terms of timing that payment was only made after the claimant had claimed unfair dismissal it seems clear from the calculations that were made in February 2017 that the respondent was aware of its obligation to pay Statutory Sick Pay and moreover made an attempt at an earlier payment which was frustrated by an administrative error. It is clear that there was a degree of confusion as to the amounts of Statutory Sick Pay payable to the claimant and how long it was to run. We are satisfied that £88.45 was the correct gross weekly amount at that time subject to any necessary deductions for tax and national insurance. Given that the claimant's second sick line expired on 1 April 2017 a net figure of £651.02 would appear to be correct and if so there may on its face have been a small underpayment of £35.18. The claimant did not cash this cheque for £615.84 on the basis that she believed that she had been dismissed and did not wish to take any action that might be taken as a concession to the contrary.

 

56.                                          On 12 April 2017 the claimant's claim form was lodged and the response was in turn lodged on 12 May 2017.

 

THE LAW

 

57.                                          Article 127(1) of the Employment Rights (NI) Order 1996 ("the 1996 Order") provides as follows:

 

"127.-”(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) only if)-”

 

(a) the contract under which he is employed is terminated by the employer (whether with or without notice),

 

(b) he is employed under a limited-term contract that terminates by virtue of the limiting event without being renewed, or

 

(c) the employee terminates the 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."

 

58.          A dismissal is not effective until it has been communicated to the employee. Authority for this is found in Widdicombe v Longcombe Software Ltd [1998] ICR 710 and by the Supreme Court in Gisda Cyf v Barratt [2010] UKSC 41 in which this principle was confirmed.

 

59. The authors of Harvey on Industrial Relations and Employment Law suggest that the best overall approach to the question of whether there was a resignation or dismissal is the test proposed by Sir John Donaldson in the case of Martin v Glynwed Distribution [1983] IRLR 198, [1983] ICR 511, at 519:

 

"Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, "Who really ended the contract of employment?"

 

60. In Sandle v Adecco UK Ltd [2016] IRLR 941 the Employment Appeal Tribunal held as follows:

 

"In our judgment, the ET in the present case was not wrong: dismissal does have to be communicated. Communication might be by conduct and the conduct in question might be capable of being construed as a direct dismissal or as a repudiatory breach, but it has to be something of which the employee was aware.''

 

61. In a constructive dismissal case, Cantor Fitzgerald International v Callaghan [1999] IRLR 234, the Court per Judge LJ at paragraph 41 held that where the failure to pay or delay in paying represented "no more than a temporary fault in the employer's technology, an accounting error or simple mistake" or was due to "illness or accident or unexpected events" it would be open to the Court to conclude that the breach did not go to the root of the contract.

 

Unauthorised Deduction from Wages

 

62. Article 45(1) of the 1996 Order provides as follows:

 

"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 45(3) of the 1996 Order provides as follows:

 

"Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion".

 

SUBMISSIONS

 

63.          Both parties filed written submissions. Copies of these submissions are appended to this decision. At the request of the tribunal both parties filed additional written submissions in relation to the alleged unlawful deduction of wages. Copies of these submissions are also appended to this decision.

 

64.          On behalf of the claimant Ms McIlveen sought to advance the claimant's primary case that she had been dismissed and that the dismissal was unfair. Ms McIlveen's primary submission was that the claimant was unfairly dismissed 27 January 2017 when the respondent cancelled her weekly standing order payment of £250. Ms McIlveen also relied on a number of matters in support of these contentions - the changing of the interior door lock in the premises and the failure to provide a key; the fitting of padlocks to the external shutters again without providing a key and the changing of the computer log-in password. Ms McIlveen invited the tribunal to reject the explanations offered by the respondent for these actions and its explanation for the failure to pay the claimant after 27 January 2017.

 

65.          On behalf of the respondent Ms Herron submitted that there was no termination by the respondent and that there is no incontrovertible evidence from which the tribunal could reasonably conclude that there has been a dismissal in the circumstances. Ms Herron further submitted that there has been no intention to dismiss and no communication of any intention to dismiss. Ms Herron drew attention to the claimant's telephone conversation with Mrs Young on 30 November 2016 which she submitted evinced an intention to resign. Ms McIlveen took issue with the interpretation being placed on this conversation and submitted that there was a lack of clarity about the claimant's status. Ms Herron also sought to place reliance on the information communicated at the staff meeting at the end of January 2017 as evidence that the respondent had accepted the claimant's resignation.

 

66.          In relation to the alternative claim of non-payment of wages Ms Herron submitted that the claimant had received all the wages that she was due and more. Ms Herron also pointed out that the claimant did not comply with the sickness absence procedure in the director's agreement.

 

CONCLUSIONS

 

Dismissal

 

67.          The main issue and starting point in this case is whether the claimant was dismissed. It is also material to note that a shareholders dispute is an important background feature in this case.

 

68.          The onus is firmly on the employee to prove that he/she has been dismissed. Dismissal can occur through conduct but normally there will be a letter of dismissal or words spoken which clearly convey the employer's decision to dismiss to the employee. We accept Ms McIlveen's submission that there was a lack of clarity about the claimant's status. This, we believe, was at least in part due to the claimant being a director, a shareholder and an employee simultaneously. The absence of clarity does not however assist the claimant in seeking to advance the case that she was unfairly dismissed.

 

69.          The claimant does not claim constructive dismissal but rather asserts that she was summarily dismissed on 27 January 2017 due to the failure to pay her wages after that date. It is common case that a standing order of £250 per week was cancelled on that date rather than amended. We are satisfied that it was the respondent's intention to move the claimant unto statutory sick pay rather than stop all payments to her. This is evidenced by the communications with the respondent's accountants in February 2017. We are also satisfied that the monies paid to Christine Jones instead of the claimant were the result of a genuine mistake by Ms Cosgrove.

 

70.          We have carefully considered all of the evidence and submissions in relation to the changing of the locks (internal door and shutters) and the changing of the computer log-in password. We have taken into account that it was the claimant who first suggested that passwords be changed and that new keys for her use were available in the office safe although she was not informed that the keys were there.

 

71.          We are satisfied that the respondent did not communicate to the claimant in any form either by word, deed or in writing that she was being dismissed. None of the conduct relied upon was aimed at or intended to convey to the claimant that she was being dismissed and the conduct complained of could not in our view constitute a direct dismissal. It might well have the potential to constitute or contribute to a repudiatory breach and thus provide a basis for a claim of constructive dismissal but the claimant decided not to pursue a claim of this nature.

 

72.          We also reject Ms Herron's submission that the claimant resigned either or 30 November 2016 or subsequently. Again there is a distinct lack of clear evidence on this point and we are not persuaded that the claimant did resign. In our view the claimant neither resigned nor was dismissed.

 

73.          In view of our conclusion that the claimant was not dismissed it is not necessary to consider whether she was unfairly dismissed. The claims in respect of notice pay and holiday pay also fall away. The logical corollary of the claimant not having been dismissed is that she remains employed by the respondent.

 

Unlawful Deduction of Wages

 

74.          We are satisfied on the basis of the computations provided by the respondent that a small sum is owing to the claimant. It is clear that the claimant had exhausted her entitlement both to contractual sick pay (120 days which equates to half of the working year) and Statutory Sick Pay which expired on 1 April 2017. The claimant was on sick leave from January 2016 and up until the end of January 2017 was paid her full remuneration of £250.00 per week. The fact that the claimant was not held to 120 day maximum contractual sick pay was clearly due to the goodwill of her fellow directors and shareholders. However, there appears to have an administrative error in the amount that was paid to the claimant by cheque in April 2017. The claimant should have received a cheque for or £651.02 according to the respondent's contemporaneous calculations as opposed to £615.84. This resulted in a shortfall of £35.18 which thereby constitutes an unlawful deduction of wages in itself.

 

75.          On the basis of the evidence that has been presented we are satisfied that the claimant did not cash the cheque for £615.84 for a perfectly legitimate reason namely that she was concerned that this would be regarded as a concession that she had not been dismissed. As the cheque will be out of date now and the respondent clearly intended that this amount should be paid to the claimant £651.02 remains due to the claimant and constitutes a technical and inadvertent non-payment of wages. We therefore make an award of £651.02 in favour of the claimant.

 

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

 

 

 

Employment Judge:

 

 

Date and place of hearing: 30 -31 January 2018 and 7 February 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: