FAIR EMPLOYMENT TRIBUNAL  

CASE REF:    78/11 FET    
1446/11   
79/11 FET
1447/11
80/11 FET
1449/11
81/11 FET
1450/11            
CLAIMANTS:	1.	Przemysiaw Mocarski
	2.	Mieczylaw Mocarski
	3.	Mariusz Mocarski
	4.	Krzysztof Mocarski

RESPONDENTS:	1.	Victor Foster Poultry Services Ltd
	2.	Dwayne Dowzell

DECISION

(A)	The Tribunal unanimously found all claimants to be unfairly dismissed by the first respondent.  The claims for overtime, holiday pay and race discrimination were dismissed.  The first respondent is ordered to pay the following sums to the claimants.
	First claimant:  	£6,514.07
	Second claimant: 	£7,641.58
	Third claimant:   	£2,668.72
	Fourth claimant:  	£9,084.38

(B)	The claims of the claimants in respect of failure to pay paternity pay were withdrawn at the outset of the hearing and those parts of the claimants’ claims contained in the above case reference numbers are hereby dismissed.  The claimants’ claims in respect of religious discrimination were also withdrawn at the outset of the hearing and the claims under reference numbers:  78/11 FET, 79/11 FET, 80/11 FET and 81/11 FET are all hereby dismissed.

Constitution of Tribunal:

Chairman:	Ms W A Crooke

Members:	Mrs T Madden
	Mrs D Adams

Appearances:

The claimants were all represented by Mr Patrick Ferrity, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.

The respondents were represented by Mr Patrick Moore, LLB, of MCL Associates Limited.

SOURCES OF EVIDENCE

1.	The claimants all gave evidence on their own behalf.  Additionally, they called Miss Jolanta Kulinska, who gave evidence in her capacity as an interpreter instructed by the claimants in respect of a disciplinary hearing held for each of them in April 2011.  On behalf of the respondents the following gave evidence:-

Mr Victor Foster.
Mr Dwayne Dowzell.
Mr Dmitri Stelmaks.
Ms Maureen McMullan.
Mr Noel Conn.

	Additionally, there was an agreed bundle before the tribunal.

THE CLAIM AND THE DEFENCE

2.	The claimants claimed that they had been unfairly dismissed, or in the alternative had been constructively dismissed, or in the alternative had been unfairly dismissed on procedural grounds, subjected to racial discrimination, had not received a contract of employment in writing and had not received holiday pay or payment for overtime.  The respondents denied all these claims.

THE RELEVANT LAW

3.	The following were considered in reaching the decision:-

	The Employment Rights (Northern Ireland) Order 1996.

	The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

	The Employment Act (Northern Ireland) 2011.

	The Race Relations (Northern Ireland) Order 1997.

	Working Time Regulations (Northern Ireland) 1998.

	The Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994.

	The National Minimum Wage Act 1998.

THE FACTS FOUND

4.	The claimants were four brothers of Polish nationality and origin who worked for the first respondent as chicken catchers.

5.	The first respondent operates a business whereby it catches chickens for Moy Park Limited (“hereinafter referred to as MPL”) to supply them with chickens for processing in their business.  The four Mocarski brothers were all involved in this contract.  They worked at night, usually commencing their shift at MPL’s premises.  The shifts normally lasted for seven to eight hours.  The second named respondent was the Foreman/Supervisor of the chicken catching team in which the four claimants worked on a regular basis.

6.	The foreman would start each night’s work by going to the transport office of MPL and receiving a list of farms to be visited and the amount of chickens to be caught and brought back to MPL.

7.	When it is necessary to refer to the claimants individually hereafter they will be referred to as the first claimant, the second claimant, the third claimant and the fourth claimant.  At the time of termination of employment the first claimant had four completed years of service.  The second claimant had five completed years of service.  The third claimant had five completed years of service.  The fourth claimant had five completed years of service.

8.	The four claimants met Mr Dwayne Dowzell, the second respondent, at the premises of MPL each night and travelled in his lorry to various farms throughout Ireland and Northern Ireland where chickens were reared.  They manually grabbed and caught the birds and put them in a cage (known as a module) which held on average 22 chickens in various drawers in the cage.  They would visit on average three farms per night and load between one and two trailers with modules, not always fully, but on average a full night would be four to six loads.

9.	Although the Foreman/Supervisor was designated as a poultry catcher, his job was different, though integral to the process.  He drove a forklift and would lift the empty modules and deliver them into the chicken houses for filling by the poultry catchers.  Before so doing, it was part of his job to spread the chickens in the chicken houses to make it more easy to catch them.  He would also have to lift the feeding/drinking system so that this would not catch in the forklift.  The filled module would be taken out and loaded onto the trailer, an empty module would then be delivered into the chicken house for filling and the “shift” would continue this way until the order from MPL was filled.  This was the only forklift type of operation that the first respondent had at the time in question.

10.	When all the designated farms had been visited, the four claimants would be delivered back to MPL and Mr Dowzell would presumably offload the chickens.

11.	The four claimants would typically (working hard) have been able to fill the load in less time than the amount of time allotted by MPL.  It was reckoned that a load would take an hour to fill but the claimants, if they worked hard, could usually do it in or around 30 to 45 minutes.  They were supposed to hose down the lorry and clean themselves up between farms and before going back to MPL.

12.	It was not denied that Mr Foster’s way of giving orders to the four claimants was by way of text message.  However, Mr Foster had not kept his text messages and, between the four claimants, only one or two text messages survived.  Mr Moore contended that there would have been thousands of text messages between Mr Foster and the four claimants, and this was not denied by Mr Ferrity on behalf of the four claimants.  In passing, the tribunal noted that Mr Foster had ten mobile telephones in operation for his business and he had other teams of men working for him at night and during the day.

13.	One of the categories of claim involved a failure to pay overtime.  The claimants claimed that they were required to carry out an average of ten hours overtime per week and that they would be instructed to do this extra work during the day by a text from Mr Foster on one of his mobile telephones.  The only one of this nature that survived stated as follows:-

		“12 tonight.  When finished morning.  Go M Woods near Armagh one load broilers.”

	This message was received on 23 March 2011.

14.	The other message received by the claimants was as follows:-

		“If I go down we all go down.  Every cheque and cash we record.”

	This was received on 8 February 2012 but it was sent from a different mobile to the mobile used for the instruction to go to the farm of M Woods on 23 March 2011.  It appeared to the tribunal that neither side was able to give evidence as to the ownership of this mobile number which was:  07518770609.  Although the claimants’ representative had tried to ring the number, they simply received a recorded message.  Without further information, the tribunal is unable to make a finding as to the ownership of this mobile number and the circumstances in which the text of 8 February 2012 was transmitted.

15.	The tribunal found it noteworthy that of allegedly thousands of text messages, only two had been saved by the claimants.  Although the text of 23 March 2011 supported the claimants’ evidence of the basis on which they received their work instructions from Mr Victor Foster, there was nothing to suggest the nature and extent of the alleged extra work that they were supposedly booked to undertake.

16.	The method of payment was on a piece rate basis.  The team of catchers was paid £2.40 per module and that was divided between them equally, there usually being four, five or six in the team and each man’s rate varied between 60 p, 48 p or 40p according to how many of them there were in the team.  The Foreman/Forklift Driver was paid 60 p per module irrespective of the numbers in the team.  Mr Dowzell worked approximately 30 hours per week.

17.	Mr Dowzell gave evidence that there was a change in his working relationship with the four claimants which started in or around January 2011.  The claimants indicated that they had stopped carrying out his duties.  Mr Dowzell indicated that he was aware that communication (never particularly frequent) with the claimants virtually ceased from January 2011 but he did not take any steps to find out why this was the case.  The claimants considered that once they stopped doing Mr Dowzell’s duties, he then became more nasty and difficult to work with as a result.

18.	On 4 February 2011, Mr Victor Foster visited Mr Dowzell’s team at a farm called “Glenann” round about the start of their shift for the purposes of receiving the signature of the second claimant and the second respondent to a receipt for a “bump” cap.  This was a requirement by MPL.  This was something that happened near the start of the claimants’ shift and he was informed by the four claimants that Mr Dowzell was wasting time.  He enquired into this when the second claimant and Mr Dowzell, the second respondent, were individually signing for the bump caps.  Neither of them gave any particulars or further information of any sort so Mr Foster let the matter of the complaint against Mr Dowzell lie on 8 April 2011.

19.	The next event of significance was that the four claimants attended on Mr Foster at his yard to say that they wished to be paid on an hourly basis.  Mr Foster told them at that meeting that the whole business was organised on a piece rate basis and that he was not able to change the basis upon which the four claimants were paid.  How the meeting ended is discussed in paragraph 24 below.

20.	Mr Dmitri Stelmaks, a fellow worker of a different nationality to the claimants, was at that time aligned with the four claimants and in common with the four claimants simply left the first respondent’s yard without any further comment.  None of the four claimants used the van which they had use of from the first respondent to get to and from their work but simply walked out.

21.	Mr Foster tried to contact the claimants by text message the next day to ask if they were going to continue working.  Mr Stelmaks was also contacted by this method and he confirmed that after consulting with his wife, he decided to continue working for the first respondent and he confirmed that he would be working as normal on the next working day (which was Sunday).  However, none of the claimants answered.

22.	It was not disputed that there were very few (if any) complaints from MPL concerning the work of this particular team.  Mr Foster indicated that if there was any difficulty in a night’s work, MPL would have contacted him before the men on the shift actually returned home.  This being the case, he had no prior knowledge of the way in which the claimants alleged Mr Dowzell was wasting time.  As far as he was concerned, MPL had not made any complaints to him so he believed that the shift supervised by Mr Dowzell was working as normal.

23.	Mr Foster then wrote to each of the claimants by a letter dated 11 April 2011 indicating that at the meeting of 8 April 2011 each claimant stated that he was dissatisfied in his employment and left without informing him of whether or when he was going to return.  Mr Foster indicated that his work instructions of 9 and 10 April 2011 had been ignored and that he was going to convene a formal disciplinary meeting to deal with that matter as a failure to carry out a reasonable management instruction.

24.	By a letter dated 14 April 2011 each claimant wrote back to Mr Foster disputing what he had said and indicating that at the end of the meeting of 8 April 2011 he had written P45 on a plain piece of paper and said to them “here’s your P45”.  The claimants alleged that Mr Foster became irate and told them to “get out”.  Each claimant had taken this as meaning that Mr Foster had dismissed them.

25.	Each claimant indicated that he would attend the meeting of 15 April 2011 and concluded by making a list of six demands.

26.	At the meeting of 15 April 2011 each claimant attended in turn accompanied by Ms Jolanta Kulinska as interpreter.  Mr Foster was accompanied by his bookkeeper, Ms Maureen McMullan, who allegedly took notes of what transpired.  These notes were not before the tribunal although it was common case that a note of some description had been taken.  Each claimant was asked in turn why he had not attended for work and each answered that he believed that he had been dismissed by Mr Foster on 8 April 2011.  However, one brother indicated that no one had been there to collect him and another brother indicated that it was for daylight hours work and he could not find anyone to cover childcare so this undermined the credibility of the claimants on this point.

27.	Mr Foster essentially replied to the list of demands in the letter dated 14 April 2011 by his letter of 20 April 2011.  Essentially, Mr Foster denied that the claimants had been dismissed; invited them to bring a grievance in respect of the alleged discrimination; confirmed they had received their entitlement to holiday pay; confirmed that they had received a statement of employment particulars at the time of commencement of their employment and enclosed a further copy for their records.

28.	By a letter dated 6 May 2011 each claimant responded to Mr Foster’s letter of 20 April 2011.  Essentially, they disputed Mr Foster’s contentions contained in the letter and stated that they had been unfairly dismissed on 8 April 2011.  As such, they were not prepared to return to work with Mr Foster.

CONCLUSIONS

THE RACE CLAIM

29.	The claimants made the undernoted complaints and said that they were aspects of the way in which they were less favourably treated and/or harassed by Mr Dowzell, Mr Foster and his sons.

	a.	Doing additional unpaid hours
            
		The Tribunal accepted that some overtime appeared to have been done on the basis of the text message, but this one text message was insufficient to convince the Tribunal that the vast amounts of overtime claimed for had actually been done.  Generally, the Tribunal does not consider that the claimants have proved sufficient facts from which an inference could be drawn that the treatment of the claimants was on account of their race.

	b.	Petty impediments cast in their way by Mr Dowzell

		These included switching off lights on the forklift so that they would have to work in the dark; not putting in four modules at once so that they had to walk farther; hiding the list so that they would not know where they were going and how much they had to catch; laughing and talking with the drivers; comparing his working conditions and remuneration unfavourably to the claimants; not being paid for holidays and the obstructive nature of the conduct of the litigation by or on behalf of the first respondent.

30.	(a)	In relation to these individual complaints, the Tribunal found that there was no independent corroboration of the account of events given by or on behalf of the claimants.  The witnesses for the respondent denied all aspects of the claim for less favourable treatment/harassment on grounds of race.  On this particular claim, the Tribunal preferred the evidence given by the respondents to that given by the claimants.  Whilst Mr Foster and Mr Dowzell held firmly in their evidence to the line that there had not been any less favourable treatment/harassment at all, they nonetheless advanced an adequate explanation for the “treatment” complained of.  Mr Dowzell was accused of making the working conditions of the claimants more unpleasant by switching off the lights on the forklift truck requiring the claimants to work in the darkness.  He explained that there were lights in the chicken house and that he had to turn off the lights on the forklift truck because this would have scared the chickens into running more wildly around the chicken house.  If the lights had been left on, this would have scared the chickens and the job of the claimants would have been harder.  The one prior complaint against Mr Dowzell before 8 April 2011 was that Mr Dowzell was “delaying”.  Mr Dowzell, supported by Mr Foster, gave evidence that it would not have been in his interest to delay the claimants in the doing of their work.  He said that the first respondent was very closely constrained by the terms of the MPL contract.  Damaged chickens would be treated as a serious matter by MPL and it was plain from the evidence which was not contraverted, that one complaint could be enough to make the respondent lose the MPL contract.

       	(b)	All the claimants alleged that Mr Dowzell hid the list of work that had to be done on various rights so they did not know where they were going and how much they had to catch.

		There was very little credible evidence given about how this disadvantaged the claimants who often slept on the journey and we infer from that that the schedule was of no interest to them.  One claimant said he did not know when he would be home.  When Mr Dowzell was not working, the second claimant drove the lorry round the farms to be visited and acted as supervisor of the shift.  We do not consider this allegation has merit as it was not disputed that there was a set allowance of time by MPL for the work at each farm and, on average, two to three farms were visited each night.  It was also the case that the second claimant acted as supervisor and driver when Mr Dowzell did not work.  If he was capable of doing this work, the Tribunal infers he would have sufficient knowledge to assess each night’s work for himself and his co-claimants.

		If what really concerned them was that they felt Mr Dowzell was trying to get them into trouble with MPL, this never happened.  It should have been of no concern.

		On occasions they were joined on the shift by persons of local origin.  Presumably if the list was hidden by Mr Dowzell on these shifts, it would count as less favourable treatment against the local workers as well as the claimants so no comparison would be possible.

		It was not disputed that it was not in Mr Dowzell’s interest to treat the claimants less favourably causing them to get their catches wrong.  For example MPL would have punished the first respondent by removing its contract from it which would also have adversely affected the claimants and Mr Dowzell.  In summary we did not find this allegation had any merit.

	(c)	The talking and laughing with other drivers

		Again, we found no merit in this allegation as:-

		(1)	there was a lack of particularity about dates, times and places.

		(2)	Mr Dowzell gave the Tribunal the satisfactory explanation that it was not in the interests of either himself or the first respondent to delay the claimants as it could have led to the loss of the MPL contract.

			This was supported by evidence from Mr Foster who said that if there was the smallest problem on a farm the farmer would immediately complain to MPL who would in turn contact him, often before the shift returned to base.

	(d)	Mr Dowzell’s working conditions and remuneration

		These were different to those enjoyed by the first, third and fourth claimants.  This was because he was the forklift truck and van driver/supervisor and received 60 p per cage irrespective of the number on the catching team.  The second claimant acted up into Mr Dowzell’s position when he was not working and so Mr Dowzell would have been an actual comparator for this element of the second claimant’s working week.  The Tribunal was not provided with any detailed comparison between the remuneration of Mr Dowzell and the second claimant.  It was impossible to draw any inferences of discrimination.  Certainly, Mr Dowzell’s remuneration varied within a fairly narrow band and the second claimant’s varied within a considerably wider band.  However, the first respondent’s explanation for this was that Mr Dowzell worked essentially a fixed 30 hour week and the claimants worked a considerably greater number of hours which is a reasonable explanation for the difference.

	(e)	The claimants alleged they were not paid for holidays

		For the reasons set out in the part of this decision in which holiday pay is discussed, the Tribunal did not find this claim to have any merit so the holiday pay element insofar as it constitutes part of the race claim has not been taken into account.

	(f)	Litigation

		Mr Ferrity made a number of points concerning the manner in which the respondents had conducted their litigation, and it did appear to the Tribunal that the matter had been in and out of the hearing lists since January 2012.  In particular, he objected to the fact that the cases had been about to be heard in early January and (on the respondent’s side) and contrary to that position, new information was discovered to the claimants in the early part of the hearing slot in which this case actually was heard.  The Tribunal did not hear any evidence from which it could draw an inference that this behaviour was a result of anything other than a change in representation of the respondents and (at a later stage) inadvertence by their representative.  The motive behind the production of the documentation appeared to the Tribunal to be a belated attempt to try to engage properly with the issues in the case.  The Tribunal considers that this was partly caused by the claimants’ failure to sufficiently particularise their claims for their holiday pay and for overtime and not part of an ongoing campaign by Mr Foster to discriminate against them on the grounds of their race.  Mr Ferrity also complained about Mr Foster’s destruction of the catching dockets which deprived the claimants of valuable corroboration of their cases.  The Tribunal has not drawn any inference about this alleged destruction of evidence.  It would have been open to the claimants to keep the texts they received, and this would have corroborated their claims for overtime, holiday pay and race discrimination without the catching dockets.

		The claimants alleged that Mr Foster’s sons had harassed the claimants by how they spoke to them.  If this was a matter of such concern the Tribunal does not understand why these persons were not joined as respondents, as they joined Mr Dowzell.  Mr Ferrity considered they should have been called as respondents’ witnesses and this would have been also of assistance in connection with comparators as it would have been possible for the claimants to call these persons to give evidence.  As the claimants did not do so the tribunal does not consider these contentions have any merit.

COMPARATORS

31.	In general, the Tribunal had difficulties with the credibility of the claimants in respect of this claim.  They seemed totally unable to explain why they had felt discriminated against, although they were given repeated opportunities to do so.  All they said was that “we are Polish and they would not have treated us like this if we were local workers”.  Generally, in respect of the chicken catchers’ claims, the Tribunal was not provided with sufficient evidence upon which to judge whether the actual comparators put forward by the claimants (the sons of Mr Foster) were persons in the same or not materially different circumstances for the purposes of the comparison.  The Tribunal was not provided with any details of how much work these persons did to compare it against the shifts of the claimants in acting as chicken catchers.

32.	The Tribunal did consider that Mr Dwayne Dowzell could constitute an actual comparator for the second-named claimant in respect of the shifts in which he acted as supervisor/forklift truck driver.  The Tribunal heard nothing to suggest that the work the second claimant did on these occasions was any different to that carried out by Mr Dowzell, the second respondent.  According to the evidence of Mr Victor Foster, it seemed that the second claimant was paid on the same basis as Mr Dowzell, ie, 60 p per module.  Obviously, there was one material difference between Mr Dowzell and the second claimant and that was that Mr Dowzell worked 30 hours or thereabouts per week as a supervisor/forklift truck driver, and the second claimant worked in this capacity when Mr Dowzell did not.  However, the Tribunal did not consider that this necessarily detracted from Mr Dowzell’s similarity as a comparator, and as such the Tribunal did not find any difference in how the second claimant was treated when he acted up in Mr Dowzell’s role.

33.	To achieve a comparison for the chicken catching role, the Tribunal constructed a hypothetical comparator and considered that this was a person who was:-

	(a)	local or not of foreign nationality or ethnicity;

	(b)	doing the same job as the claimants (chicken catching);

	(c)	in the same places as the claimants;

	(d)	for the same pay;

	(e)	with the same shift pattern;

	(f)	booked in the same way.

34.	Looking at these elements we find no evidence that the hypothetical comparator would be treated differently, and we discuss this further in paragraph 36.

35.	The claimants claimed that they were not paid for holidays and not paid for overtime.  As these are disputed areas, we have left them out of the construction of the hypothetical comparator.  As previously stated, the Tribunal accepted that some overtime was worked by the claimants.  The Tribunal drew this inference from the text message that the claimants were able to provide, but did not consider that this was a primary fact of sufficient value by itself to allow the Tribunal to automatically declare that the claimants’ claims for overtime which were framed on the basis that they worked an average of 10 hours extra each per week and that none of this had been paid over the whole extent of their employment with the first respondent.  Apart from this one text message, the claimants had no records of any sort to back up this claim.  The Tribunal considers that it was incredible that persons making this sort of claim had virtually no evidence upon which to base it.  It would have been a very easy matter to record the amount of overtime done in a notebook.  This was not done.  If this was really of such importance to the claimants, the Tribunal finds it difficult to understand why they continued to work the overtime and not get paid.  Furthermore, they could not remember the farms on which they worked overtime.  If this claim was of such importance we consider they would be able to do so.

36.	Although the claimants usually constituted the greater part of the MPL catching shift, they were occasionally supplemented by other workers.  The Tribunal has noticed that from the catching dockets of 13 and 14 October 2011, two local persons, Aaron and Mark Dixon joined the shift otherwise composed of persons who are not of Northern Irish origin.  There is no suggestion on the catching dockets or even in the evidence that they were treated differently to the claimants (or to the other non-Northern Irish workers on that shift).  The Tribunal would regard these as satisfactory evidential comparators on the basis of which it finds that the claimants were not less favourably treated than a hypothetical comparator.

37.	Accordingly, the Tribunal considers that the claimants have not proved such facts from which it is possible to infer that the claimants were less favourably treated on the grounds of their race.  Repeatedly, the claimants were asked to explain why they considered they were less favourably treated.  All they were able to say was that they were Polish and a local person would not have been treated like that.  All this shows is (at its height) a difference in status and in treatment which is not sufficient as set out in the case of Madarassy  v  Nomura International Plc [2007] IRLR 246.  The Tribunal considers that the claimants have not established such facts from which the Tribunal could draw an inference of discrimination.  Therefore, the burden of proof has not been displaced.  If we are wrong in so finding, we also found that Mr Dowzell and Mr Foster have provided a satisfactory non-discriminatory explanation for any perceived lack of co-operation in and around the actual catching of the chickens which has already been discussed.  This is what is required to be done by Moy Park Ltd.

THE OVERTIME

38.	Amongst other directions in the case management notes of 19 June 2012, the Vice President directed that the claimants were to provide “as much detail as the claimants possess in relation to the actual hours allegedly worked, the dates on which it was worked, the locations on which it was worked, and the circumstances in which it was worked”.
      
	The lack of compliance with the Vice President’s direction in general and the answers given in particular in respect of location together constituted another factor which detracted from the claimants’ credibility in this area of their claim.  The only two locations they were able to name were Crossgar Poultry and Erne Eggs.  Crossgar Poultry turned out to be a night-time operation in the evidence of Mr Victor Foster, and it would therefore have been impossible for the claimants to have worked for this entity as they were already working for MPL at night.  It also transpired that Mr Foster had not had a contract with Erne Eggs for a number of years, so there would have been no requirement for the claimants to go there either.  Given that the second claimant drove the lorry to the farms when Mr Dowzell was absent, the Tribunal simply does not accept that it was not possible for the claimants to be able to remember where they had gone to do this alleged overtime.  The second claimant must have known as how could he get there without knowing his destination.  It would perhaps be understandable if this overtime was done at night, that the claimants would not be able to see the names of the farms.  However, as it was allegedly done in daylight, these would have been visible, and as the second claimant was able on the nightshift to drive to farms, the Tribunal considers it reasonable to infer that he had a general working knowledge of the area and would have been able to trace the farms upon which the alleged daytime overtime was done, if it was in fact done.  This claim was dismissed because the limited evidence given by the claimants was not credible both in respect of whether it was done and how many hours were done and where.

THE HOLIDAY PAY

39.	The claimants did actually produce some documentary evidence of when they had been on holiday.  This was produced in response to Mr Foster producing some holiday sheets in respect of the claimants for the last three years.  When the claimants’ P11s were matched with the holiday sheets, and their travel details, there was a rough correlation.  The evidence produced on behalf of the first respondent was not perfect, but given the size and administrative resources of the respondent (which seemed to be very slender) this was at least a credible, if belated, attempt to deal with the claimants’ claims.

40.	It appeared to the Tribunal that claimants may have had inflated expectations in connection with what holiday pay they were entitled to.  Initially, the second claimant (who to a certain extent was giving evidence for all four claimants) seemed to suggest that they were entitled to an amount of paid holiday greatly in excess of the statutory allowance of 28 days.  This position was abandoned by the claimants.

41.	The position of the claimants was simple  -  they were never paid for any holidays.  It was put to them by Mr Moore that they had a practice of taking unpaid leave along with paid leave.  When he took the second claimant and the other claimants through a comparison of the P11 with the holiday sheets and their documentation, it did seem that there was some merit in this proposition, as there was a rough correlation between the holidays taken, and the P11 and other records of the first respondent.

42.	The Tribunal also took note of one of the claimants’ contention that Mr Foster “split” the pay.  This contention was corroborated and explained by Mr Foster’s evidence on this point.  He said that holidays are accrued and this meant that at any given time when the claimants wished to take leave, they did not necessarily have leave accrued to take.  Mr Foster explained that in the past he had taken on a worker who after working for a very short period demanded the whole of his leave (although it had not been accrued) and when this was paid simply vanished and never returned to work.  He said that his business could not afford this and that is why the claimants had to take an element of unpaid leave together with paid leave to make up their holiday requirements.  As on one occasion the wife of one the claimants was about to give birth and he needed a holiday of four to five weeks duration, the Tribunal can understand the economic reason behind Mr Foster’s policy.  To be helpful, and the P11 records bore this out, Mr Foster pointed out that he did split holiday pay occasionally to allow the claimants to have something in respect of the unpaid leave weeks.  The claimants all denied that they were ever paid anything for their holidays but once again there was a considerable lack of particulars of holidays taken and when, that a few documents produced by way of holiday travel plans with Ryan Air and documents signed in Poland were insufficient to address.  For these reasons we dismiss the claim for holiday pay both in itself and as a part of the race claim.

NOT REASONABLY PRACTICABLE

43.	It did appear to the Tribunal that the claims for holiday pay for holiday taken but not paid during their employment, were in all likelihood out-of-time, both as alleged deductions from wages under Article 45 of the Employment Rights (Northern Ireland) Order 1996 and under the Working Time Regulations (Northern Ireland) 1998.  The former statutory provision allows a person to bring a claim for a deduction from wages but if that claim has not been brought within three months of the deduction then the Tribunal has to consider whether or not it would have been reasonably practicable for the same to have been brought.  Under the Working Time Regulations the holidays for the 12 month period ending with termination are only able to be claimed.  There were a variety of explanations given for the failure to bring their claims in time.  The most prevalent one was that they were Polish and the second most prevalent explanation was that as they had not been given their contract of employment they could not tell what their entitlements might be.  The Tribunal does not accept either explanation.  The reason for that is that it was not denied that an arrangement was made to go to see a Solicitor more or less immediately after the claimants walked out of the first respondent’s yard.  On their evidence, they would not have had a contract of employment at that point and they were all still Polish speakers at that point, so the Tribunal does not accept these explanations as satisfactory to answer the question whether or not it was reasonably practicable to bring their claims within the two-time periods.  The explanations given that applied in April 2011, were the same as for any earlier period.  There was no bar to them going at any earlier point.

EXTENSION OF JURISDICTION

44.	It was definitely inferred, if not always said, that the claimants were afraid of losing their jobs.  They were afraid they would not get other jobs.  While it seems that this might have been true for the last four months of their employment, on the claimants’ own evidence it seemed that Mr Foster had shown some assistance to the claimants at an earlier stage in their employment ferrying them to and from their departure airports to Poland.  The fourth claimant said that it all changed when they stopped doing Mr Dowzell’s jobs.  As these amounted to spreading the chickens evenly in the sheds and lifting the water dispensing apparatus, this did not seem to be unduly onerous and insufficient to, of itself, cause a major breakdown in the employment relationship.  So for the period of employment ending in or around December 2010, the Tribunal does not accept this as a reason for it not being reasonably practicable to make these claims.  However, Mr Ferrity on behalf of the claimants, advanced an argument that these claims for holiday pay and overtime could be classed as claims under the contract of employment under Section 4 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland Order) 1994.  This was an attractive argument and it found favour with the Tribunal.  The contract of employment in the bundle certainly covered issues such as holiday pay and overtime and these were claims that had been made by the claimants which were outstanding at termination of employment.  As such, they are subject to the limitation period contained in the Extension of Jurisdiction Order and the claims for overtime and failure to pay holiday pay (insofar as they were actually out-of-time) are thus not lost as a result of the application of the more restrictive time periods for bringing the claims under Article 45 of the 1996 Order and under the Working Time Regulations (Northern Ireland) Order 1998.

45.	However, whilst accepting that these are claims that do not fall foul of the limitation periods, the Tribunal still considers that on the balance of probabilities it was more likely than not for the reasons stated above that the claimants were paid for holidays and where they were not paid, this was because they took unpaid leave to give them greater lengths of time on holiday in Poland.  This claim is dismissed.  The overtime claim is also dismissed for lack of evidence.

THE NATIONAL MINIMUM WAGE CLAIM

46.	The Tribunal had the benefit of a report compiled by Mr Noel Conn of Noel Conn and Company Chartered Accountants.  Mr Conn also gave evidence to the Tribunal.  On the basis of the information provided to him he concluded that the first respondent was paying his workers in accordance with the terms of the Act and also in accordance with the rates set out in their contracts of employment.  However, he very honestly admitted that his computations were based on the claimants working their basic nightshifts in a normal working week, with no element of overtime.  He concluded that if the claimants were working an average of an additional 10 hours per week for no greater remuneration than that set out in the P11s in the bundle, then the likelihood was that the rates they paid did not comply with the National Minimum Wage Act and indeed their contract of employment.  As the Tribunal was not provided with any evidence of exactly how many hours of overtime were worked, and the other details directed by the Vice President in the Case Management Discussion of 19 June 2012, it did not have sufficient information to make a finding upon whether or not the claimants were paid in accordance with the National Minimum Wage Act 1998.

THE UNFAIR DISMISSAL CLAIM

47.	The salient events that precipitated the termination of employment of the claimants started in or around 8 April 2011.  On that day, the four claimants attended on Mr Victor Foster at his business to explain that they were unhappy about their working conditions.  Basically, they wished to be paid by the hour.  There was a divergence in the evidence between the version given by the claimants and the version given by and on behalf of the first respondent.  Both sides agreed that there was a meeting on 8 April 2011.  Mr Foster’s version of events was that the claimants simply left without telling him whether or not they were intending to return to work.  The claimants contended that Mr Foster had become irate at their suggestion that he alter the basis upon which he ran his business to accommodate them and wrote on a piece of paper “here’s your P45”.  He then told them to “get out”.  The claimants considered that they had been dismissed and the Tribunal considers that the mention of the words “P45” is sufficient to make them think so.  Mr Foster said that this could not have happened because this meeting took place out of doors and he would not have had a pen and paper with which to write “here’s your P45”.  This runs contrary to his own letters to the claimants in which he said “I did not become irate or order you to get out of my office”.  We prefer the claimants’ versions of events which is consistent and consider Mr Foster dismissed the claimants.

48.	Additionally, the Tribunal considered the evidence of Mr Dimitri Stelmaks, a Latvian co-worker of the claimants.  In general, in his evidence, he was not favourable to the claimants but he did confirm that there was a dispute between them and Mr Victor Foster which was sufficient to make them march off his premises and arrange to see a solicitor.  He also said that Mr Foster had told them that if they wanted to leave his employment they would have to come into his office and sign paperwork to the effect that they were doing it voluntarily.  Accordingly, we consider it more likely than not on the balance of probabilities that the question of termination of employment was raised between the parties at the meeting of 8 April 2011.

49.	What happened next was that Mr Foster sent instructions to the claimants to work on 9 and 10 April 2011.  The claimants did not attend and were invited to a disciplinary meeting by a letter dated 11 April 2011.

50.	Each claimant sent a letter of grievance, dated 14 April 2011, to Mr Foster stating that they would attend the disciplinary meeting on 15 April 2011 accompanied by an interpreter.  Each claimant read out a statement to Mr Foster at the meeting and left.  There was a further exchange of correspondence between the parties and the net result was that the claimants indicated they did not want to resume employment with the first respondent.  On the first respondent’s side, this finished with a letter to each claimant of 20 April 2011 indicating that if they did not return to work by 27 April 2011 he would consider that they had resigned from employment.

51.	(a)	We consider that while Mr Foster may have started out following the standard procedure of the statutory dispute resolution procedures contained in Schedule One of the Employment (Northern Ireland) Order 2003, he did not finish the process.  He did write a letter setting out the alleged conduct, albeit it was conduct arising from a situation he had manipulated.  There was a meeting between the parties but after that meeting which the Tribunal deems to be a step two meeting in accordance with the dismissal procedure, by his letter of 20 April 2011, he was deemed by the Tribunal to have given his decision that he found the claimants guilty of failure to comply with a reasonable work instruction.  However, he did not complete the procedure by advising the claimants of the right to appeal.  He simply told them that if they did not return for work he would treat them as having resigned.  We find that the responsibility for failure to complete the procedure lies with the first respondent.  We consider that the dismissal of the claimants was unfair on procedural grounds in that it did not comply with the statutory minimum procedures in the Employment (Northern Ireland) Order 2003.

	(b)	Substantive Issues, Burchell and Iceland Frozen Foods

		Additionally, we find that this was a manipulated dismissal by the first respondent.  The claimants tried to raise a grievance and were repulsed to the extent they all considered themselves to be unfairly dismissed.  Is it likely that after such an event, the claimants were going to simply forget this and go on working?

		We do not consider the claimants can be faulted for ignoring this instruction, although one claimant questioned whether in fact anyone came to collect them for work on 9 April 2011.

		There was no evidence of any attempt to comply with the Burchell guidance or consider whether the penalty of dismissal was suitable and within the Iceland Frozen Foods test of the band of reasonable responses.  To a certain extent this is not surprising as these authorities deal with the idea of “reasonableness”.

		We draw the inference from this that having had a kneejerk reaction to the demand for hourly pay, the first respondent was trying to manipulate the situation to look as though the claimants resigned rather than he dismissed them 

FAILURE TO PROVIDE A CONTRACT

52.	While we did not accept the claimants’ initial assertion (amongst a variety of attacks by the claimants on the contract) that they disputed their signatures on the contracts, we did consider it more likely than not on the balance of probabilities that they had not signed the full contract document.  The reason why we found this to be the case is that the alleged copies of the contracts of employment appeared to be “cobbled” together with pages missing.  This suggested to the tribunal that the contracts had not been completed in a normal fashion and supports the claimants’ contention that they signed only one page.  Accordingly, we award four weeks gross pay to each claimant under this head of loss.

UPLIFT

53.	We have noted that Mr Foster did not comply with the requirements of Schedule 1 of the Employment (Northern Ireland) Order 2003.

	We also consider that he retrospectively manipulated the situation to make it look as if the claimants had resigned.  We consider that his failure to comply is flagrant and the compensatory award should be increased by 50% to reflect the serious nature of this breach.

CALCULATION OF COMPENSATION

54.	
	First Claimant		
			
	Przemysiaw Mocarski		

	Basic Award	£911.12	
			
	Dates of Employment:	18 June 2006  to  8 April 2011	
			
		This gives a total of four completed years of service all below the age of 41, so the multiplier is 1.	
			
		4  x  1  x  £227.78 (being the gross weekly wage)  =  £911.12.	
			
	Loss of Statutory Rights		
			
	Given the claimant’s length of service, we awarded the figure of £350.00.		
			
	Failure to provide contract of employment:	£227.78  x  4 weeks  =  £911.12	
			
	Compensatory Award		
			
	Immediate Loss:	From the date of dismissal which is 8 April 2011 to 25 July 2011 is a period of 15 weeks.	
			
	Uplifted by 50%:	£192.97  x  11 weeks  =  £2,894.55	
		£2,894.55 x  50%  =  £1,447.28	
			
	Recoupment		
			
	This claimant received Job Seeker’s Allowance from 19 April 2011 to 22 June 2011 which is a period of 9 weeks.		

	Summary of Compensation		
			
	Basic Award:	   £911.12	
			
	Immediate Loss:	£2,894.55	
			
	Loss of Statutory Rights:	   £350.00	
			
	Failure to provide contract:	   £911.12	
			
	Uplift of 50%:	£1,447.28	
			
	Total:	£6,514.07	

	Second Claimant		
			
	Mieczylaw Mocarski		
			
	Basic Award		
			
	Dates of Employment:	This claimant started employment on 25 May 2005 and that employment ended on 8 April 2011.  His gross weekly wage was £263.55.	
			
		This gives him five completed years of service below the age of 41, which makes the multiplier 1.  Consequently, the award was calculated as follows:

£263.55  x  5  x  1  =  £1,317.75	

	Loss of Statutory Rights		
			
	In view of the length of service, we have awarded £350.00.		
			
	Failure to provide contract of employment:	4 weeks gross pay  x  £263.55 = £1,054.20	

	Compensatory Award		
			
	Immediate Loss:	The immediate loss period ran from 8 April 2011 to 25 July 2011, a period of 15 weeks.  The net weekly wage was £218.65.	
			
		11 weeks  x  net weekly wage  =  £3,279.75	
			
	Uplift of 50%:	£3,279.75  x  50%  =  £1,639.88	
			
	Jobseeker’s Allowance		
			
	This claimant was in receipt of Jobseeker’s Allowance from 19 April 2011 to 22 June 2011 which is a period of nine weeks.		
			
	Summary of Compensation		
			
	Basic Award:	£1,317.75	
			
	Immediate Loss:	£3,279.75	
			
	Loss of Statutory Rights:	   £350.00	
			
	Failure to provide contract:	£1,054.20	
			
	Uplift of 50%:	£1,639.88	
			
	Total:	£7,641.58	

	Third Claimant		
			
	Mariusz Mocarski		

	Basic Award		
			
	Dates of Employment:	This claimant started employment on 17 February 2006 and it ended on 8 April 2011.  This gives him five years completed service, all of which took place when he was under 41.  The gross weekly wage is £246.16.	
			
		£246.16  x  1  x  5  =  £1,230.80	

	Loss of Statutory Rights		
			
	In view of the length of service the tribunal has awarded £350.00.		
			
	Failure to provide a contract of employment:	£246.16 (gross weekly wage) x 4 weeks  =
£984.64	

	Compensatory Award		
			
	Immediate Loss:	This claimant had a period of two days for his immediate loss as he commenced new employment with O & S Doors Ltd on 11 April 2011 on a six month contract.	
			
		Net weekly wage  ÷  6  x  2  =  £68.85  (£206.55)	
			
	Uplift of 50%:	£68.85  x 50%  =  £34.43	

	This claimant did not claim Jobseeker’s Allowance.		

	Summary of Compensation		
			
	Basic Award:	£1,230.80	
			
	Immediate Loss:	     £68.85	
			
	Loss of Statutory Rights:	   £350.00	
			
	Failure to provide contract:	   £984.64	
			
	Uplift of 50%:	      £34.43	
			
	Total:	£2,668.72	

	As all the claimants obtained jobs quickly no element was claimed for future loss.

	Fourth Claimant		
			
	Krzysztof Mocarski		

	Basic Award		
			
	Dates of Employment:	This claimant commenced employment with the respondent on 25 May 2005.  The employment ended on 8 April 2011.  This is a period of five completed years, all of which were under the age of 41 and so the multiplier is 1.	
			
		This claimant’s gross weekly wage was £228.20.	

		£228.20  x  1  x  5  =  £1,141.00	

	Loss of Statutory Rights		
			
	In view of the length of service, we have awarded £350.00.		
			
	Failure to provide contract of employment:	£228.20  x  4  =  £912.80	

	Compensatory Award		
			
	Immediate Loss:	The immediate loss period runs from 8 April 2011 to 19 September 2011, a period of 23 weeks.	
			
		The net weekly wage is £193.64.	
			
		£193.64  x  23 weeks  =  £4,453.72	
			
	Uplift of 50%:	£4,453.72  ÷  50%  =  £2,226.86	

	Jobseeker’s Allowance		
			
	This claimant received Jobseeker’s Allowance from 19 April 2011 to 22 June 2011, a period of nine weeks.		

	Summary of Compensation		
			
	Basic Award:	£1,141.00	
			
	Immediate Loss:	£4,453.72	
			
	Loss of Statutory Rights:	   £350.00	
			
	Failure to provide contract	   £912.80	
			
	Uplift of 50%:	£2,226.86	
			
	Total:	£9,084.38	

55.	The attention of the parties is drawn to the Recoupment Notice attached in respect of the first, second and fourth claimants.

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

Chairman:

Date and place of hearing:	25-29 June, 2-6 July, 24-27 July and 30 and 31 July 2012, Belfast.

Date decision recorded in register and issued to parties: 

Case Ref No: 1446/11

CLAIMANT:			Przemysiaw Mocarski 

RESPONDENTS:	   	1.  Victor Foster Poultry Services Ltd
			            2.  Dwayne Dowzell                                 
ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	6514.07	
(b)  Prescribed element	1736.73	
(c)  Period to which (b) relates:	    19/04/11 to 22/06/11	
(d)  Excess of (a) over (b)	4777.34	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.

Case Ref No: 1447/11

CLAIMANT:			Mieczylaw Mocarski 

RESPONDENTS:	   	1.  Victor Foster Poultry Services Ltd
			            2.  Dwayne Dowzell                                 
ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	7641.58	
(b)  Prescribed element	1967.85	
(c)  Period to which (b) relates:	    19/04/11 to 22/06/11	
(d)  Excess of (a) over (b)	5673.73	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.

Case Ref No:  1450/11

CLAIMANT:			Krzysztof Mocarski 

RESPONDENTS:	   	1.  Victor Foster Poultry Services Ltd
			            2.  Dwayne Dowzell                                 
ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	9084.38	
(b)  Prescribed element	1742.76	
(c)  Period to which (b) relates:	    19/04/11 to 22/06/11	
(d)  Excess of (a) over (b)	7341.62	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.