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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sydney Foston v Regency Spinning Ltd [2008] NIIT 1213_07IT (19 December 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/01213.html Cite as: [2008] NIIT 1213_7IT, [2008] NIIT 1213_07IT |
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The decision of the Tribunal is that the claimant was unfairly dismissed by the respondent and the respondent made unlawful deductions from wages. The Tribunal awards compensation in the sum of £4811.00. .
Constitution of Tribunal:
Chairman: Mr P Kinney
Member: Mr Martin
The respondent in this case, Regency Spinning Limited (in administration) did not enter a response and under Rule 9 of the Industrial Tribunals Rules of Procedure 2005 is not entitled to take any part in the proceedings. Correspondence has been received from the Administrator providing consent to the claimant continuing with his claim confirming it was not the Administrator’s intention to represent the company at any future tribunal hearing.
The Chairman addressed the claimant under Regulation 5(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 as to whether the claimant consented that the claim be heard and determined in the absence of one member of the Tribunal. The claimant provided that consent. The Tribunal therefore determined to continue in the absence of one member of the Tribunal.
The Issues
The claimant brings two claims before the Tribunal –
Was the claimant unfairly constructively dismissed?
Did the claimant suffer an unlawful deduction of wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996?
The Tribunal heard evidence from Mr Foston and was provided with a bundle of documents. The Tribunal only had reference to those documents to which it was expressly referred at hearing.
Facts Found
The claimant commenced employment with the respondent on 1 March 2004 as supervisor. From in and around August 2005 the claimant noticed that the attitude of another supervisor, Mr Steven Large had changed and had become more hostile. The claimant sought the assistance of Mr Graham Smith, Managing Director. Mr Smith spoke to Mr Large and confirmed that he had done so to the claimant.
In January 2006 the claimant re-negotiated his salary with Mr Smith. The changes included guaranteed payments for overtime agreed with Mr Smith, full pay for his working week including any absence for sick leave or flexi-time but excluding holiday pay, and a rate for additional overtime hours outside those agreed with Mr Smith. The claimant was paid the revised salary from January 2006.
There was continuing difficulty with Mr Large and his attitude to the claimant. These continued through the first half of 2006. In August 2006 Mr Smith retired and was replaced as Managing Director by Mr Johnston.
From September 2006 the claimant noticed that his position changed and various duties were removed from him. The claimant’s decision making powers relating to his role were removed. Mr Johnston had assured the claimant that his position would remain unchanged. In and around 20 November 2006 Mr Large accused the claimant of mixing up batches of yarns for sale to a customer who purchased odd lots of carpet. Mr Large accused the claimant of personally benefiting from these sales. At this stage the claimant was feeling very stressed and very upset at the changes in his role and at his general treatment. At around this time the claimant also one evening approaching his car saw that a note had been placed under his windscreen wiper. The note was a memo which set out pay information relating to a number of individuals including the claimant. It showed his current pay (a figure of approximately £33,000) with a proposal to reduce the pay to £24,500. The claimant had not been consulted on any such proposed changes and it was entirely contrary to the previous arrangements made with Mr Smith and to the assurances given by Mr Johnston.
The claimant’s symptoms of stress and anxiety now began to manifest themselves in psoriasis. Shortly afterwards the claimant went off work with work related stress on 23 November 2006.
On 28 November 2006 the claimant initiated a grievance procedure in relation to the treatment he had received from Mr Large.
In early December 2006 the claimant received correspondence from Mr Johnston inviting the claimant to a meeting to discuss his grievance. The claimant asked that Dr Gibson, the Managing Director deal with the grievance. The response from the respondent did not address this request directly but indicated that Mr Clarke was to hear the grievance. The claimant wrote again to Mr Johnston stating that he did not feel able to return to the factory and invited Mr Johnston or Mr Clarke to have a grievance meeting at his home.
The response from the respondent again did not address directly the comments of the claimant but instead invited him to a further grievance meeting at the work place.
The claimant then wrote to the respondent in January stating that on medical advice he was not in a position to attend any meetings at present. He indicated this position would be reviewed at his next medical appointment on 2 February 2007.
The claimant provided further detail of his grievance and subsequently on 2 March 2007 the respondent’s wrote to the claimant inviting him to a grievance meeting on 7 March 2007 to be held at a neutral venue. However, that letter also included for the first time a requirement for the claimant to attend following the grievance meeting, an investigation meeting in relation to matters concerning the mixing of batches of yarn.
The claimant gave evidence that Mr Large was involved in the grievance process despite being the person against whom the grievance was made. He addressed this belief in his correspondence with the respondents and it was not denied. The Tribunal finds on the balance of probabilities that Mr Large was involved in the grievance procedure.
On 9 March 2007 the claimant sent a letter tendering his resignation. In his resignation letter he stated that he considered that his contract of employment had been fundamentally breached due to the treatment received from the management within the company and the failure to deal with his grievance. His medical condition of work related stress was having a detrimental effect on the claimant and his family and would only become worse if he was to return to the company.
The claimant had not been receiving pay slips for his pay. He noticed from bank statements in and around this time that his pay had been reduced from in or about November 2006. All his guaranteed overtime payments had been removed. The claimant had been provided with no explanation by the company for this reduction. He had not given any prior written consent to the deductions from his wages.
The average weekly wage received by the claimant for the 12 weeks prior to the deduction commencing was £677. In the first 2 weeks of deductions the deductions made were £102 per week. In the following 15 weeks the deductions made were £259 per week with the exception of 2 weeks when the claimant was on holiday and for which no pay was recorded. The claimant accepted that he was not entitled to pay on those two weeks.
The Law
In order to establish that an employee has been unfairly constructively dismissed, the employee must show the following:-
His employer has committed a serious breach of the contract.
The employee has left because of this breach.
He has not waived the breach.
An employer will be guilty of a breach which entitles an employee to resign and claim that he is being constructively dismissed if the employer behaves in a way which destroys the relationship of trust and confidence with his employee.
No deductions may be made from a worker’s wages unless either;
It is required or permitted by a statutory or contractual provision; or
The worker has given his prior written consent to the deduction
There are certain statutory exceptions to these provisions but there is no evidence before the Tribunal that any such statutory exceptions apply in this case.
Tribunal’s Conclusions
The Tribunal is satisfied, on the basis of the facts as found, that the claimant was subjected to sustained abuse at the hands of a fellow employee which initially the respondent dealt with but after the retirement of a senior manager failed to properly deal with. When a formal grievance was made by the claimant the respondents did not deal appropriately with that grievance and attempted to conflate a disciplinary matter with the grievance procedure. The Tribunal determines that the behaviour of the respondent was such that it was a breach of the implied term of trust and confidence and the claimant was unfairly constructively dismissed. In the alternative the Tribunal also finds that the alteration and variation in the claimant’s pay without any consultation or prior notification constitutes a fundamental breach of contract.
The Tribunal has also found as a fact that the claimant did not give prior written consent to the deductions for his wages and has found no evidence that the deductions made were required or permitted by a statutory or contractual provision. In those circumstances the Tribunal also finds that the claimant has suffered an unlawful deduction from wages contrary to Article 45 of the employment rights (Northern Ireland) Order 1996.
Compensation
Basic Award
The claimant is entitled to a basic award based on three complete years of employment at the rate of £310 per week = £930.
The Tribunal also made an award for loss of statutory rights in the sum of £310.
(b) Compensatory Award
The claimant makes no claim for compensatory award in this case. The Tribunal has clarified with the claimant that no such calculation is required.
Unlawful Deductions from Wages
The Tribunal is satisfied that the claimant has suffered an unlawful deduction from his wages which the tribunal calculates in the following way –
Average weekly wage 12 week prior to deduction = £677
The initial deduction from weeks 1 and 2 £102 x 2 = £204
Deductions from wages for weeks 3 to 15 (excluding
2 weeks holidays) = £259 x 13 = £3367
TOTAL AWARD = £4811
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21 November 2008 at Belfast.
Date decision recorded in register and issued to parties:
