Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:   13656/18

13657/18

 

 

CLAIMANT:                          Ronald John Downey

 

RESPONDENTS:               1. Columbus Forty Seven Limited

                                                2. Jane McQuaid

 

 

DECISION

 

1.            The claims against Jane McQuaid are dismissed upon their withdrawal by the claimant.

 

2.            The tribunal unanimously finds that the claimant was not continuously employed by the respondent for a period of one year.

 

3.            The tribunal unanimously finds that the claimant’s case does not qualify for any of the exceptions to the qualifying period of continuous employment.

 

4.            The tribunal therefore does not have jurisdiction to determine the claimant’s case and his claim for unfair dismissal is dismissed.

 

5.            The tribunal unanimously finds that the respondent did not make an unlawful deduction from the wages of the claimant.  His claim is therefore dismissed.

 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge:          Employment Judge Browne

                       

Members:                             Ms E McFarline

                                                Mr I Carroll

 

APPEARANCES:

 

The claimant represented himself.

 

The respondents did not attend and were not represented.

 

ISSUES AND EVIDENCE

 

1.            The claimant at the outset of the hearing confirmed that he no longer wished to pursue any claim against Jane McQuaid.  Those claims are accordingly dismissed by the tribunal.

 

2.            The only respondent therefore is Columbus Forty Seven Limited.

 

3.            The claimant claimed that he had been unfairly dismissed, and that the respondent made unlawful deductions from his wages.

 

4.            The claimant started working for Columbus Forty Seven Limited, owned by
Jane McQuaid and her late husband, in February 2018.  He was employed by them as a Business Consultant.

 

5.            In May 2018, he was given a new role by the respondent as Wealth Business Consultant, operating a franchise called Vitality, held by the respondent.  It was common case that, on 3 May 2018, an email was sent to the claimant by the respondent, setting out the remuneration framework for the claimant, but he failed to notice the email until July 2018.  The contents of the email were clear in stating that “should the Wealth Business Consultant generate less than 60 points on the Balanced Scorecard the fixed payment [i.e. salary] will be reduced by 50%”.

 

6.            The Balanced Scorecard was the means by which Vitality operated its business model, applicable across all its franchise holders.  The claimant claimed that its operation was only explained to him at a meeting with the respondent’s franchise manager.

 

7.            It quickly became clear however that the claimant was failing to meet the target set out in the email of 3 May 2018, and his salary was to be reduced accordingly.  It was when he objected to this that the respondent drew his attention to the contents of that email.  The claimant later raised a grievance about it.  In his evidence to the tribunal, the claimant expressed the view that the respondent’s fee from the franchise ought to have been cut by 50%, not his salary.

 

8.            The tribunal saw the contents of emails between the claimant and the respondent, from which it was apparent that his failure to hit the required targets was the subject of significant dispute between them.

 

9.            As a result of that failure, whatever the reason for it, the claimant was dismissed from his employment, leaving in September 2018, that is, some seven months after his initial employment.

 

10.         Part of the claimant’s complaint to the tribunal was that his dismissal had been procedurally unfair, in contravention of Article 130A of the Order, and that he had been dismissed for raising the grievance as to his statutory right to be paid his full contractual salary.   

 

LAW AND CONCLUSIONS

 

11.    The relevant legislation is contained in the Employment Rights (Northern Ireland) Order 1996 (“the Order”).

 

12.    Article 126 of the Order states:

 

“The right

 

126.—(1)  An employee has the right not to be unfairly dismissed by his employer.

 

            (2)  Paragraph (1) has effect subject to the following provisions of this Part (in particular Articles 140 to 144).”

 

 

Article 140 of the Order states:

 

“Qualifying period of employment

 

140.—(1)  Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.

 

            (2)  If an employee is dismissed by reason of any such requirement or recommendation as is referred to in Article 96(2), paragraph (1) has effect in relation to that dismissal as if for the words[F1 one year] there were substituted the words “one month”.

 

13.         The tribunal noted that the exclusions to the application of Article 140 do not include reference to Article 130A.

 

14.         The tribunal therefore unanimously concludes that the claimant did not have the requisite twelve months’ continuous service, and his dismissal therefore did not require the procedural requirements of Article 130A.

 

15.         The claimant therefore was not unfairly dismissed, and his claim in that regard is dismissed.

 

16.         As regards the alleged unlawful deduction from his wages, the relevant legislation is contained in Article 45 of the Order:  

 

            “Right not to suffer unauthorised deductions

 

45.—  (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.

 

(2)  In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

 

(a)          in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

 

(b)          in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

 

(3)  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.

 

(4)  Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

 

(5)  For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

 

(6)  For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

 

(7)  This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.”

 

17.         The tribunal is satisfied that the email of 3 May 2018 ought properly to be viewed as forming part of the claimant’s contract of employment.  It was clearly and openly communicated to him, whether or not he was in fact aware of its contents.

 

18.         The tribunal is satisfied from the evidence that its contents were a condition of the granting of the franchise to the respondent, and that the respondent was obliged to abide by Vitality’s policy and practice in that regard.

 

19.         As such, the claimant’s failure to meet the target, despite clear instruction form the respondent, resulting in disciplinary action being instigated, properly resulted in the reduction of 50% from his salary.  The claimant’s assertion that the deduction ought to have been from the respondent’s fee and not from his salary was not supported by any evidence.

 

20.         As such, the tribunal is satisfied that the fact and the amount of deduction was in accordance with the terms of his contract.  It therefore was not an unlawful deduction, and his claim is dismissed.

 

21.         The claimant’s case is therefore dismissed in its entirety. 

 

 

Employment Judge:

 

Date and place of hearing:          12 February 2019, Belfast.

 

Date decision recorded in register and issued to parties: