THE INDUSTRIAL TRIBUNALS

CASE REF:	293/09IT

CLAIMANT:			Michael O’Boyle	

RESPONDENT:		Rosemary O’ Kane (Anniscliff House)

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed.

Constitution of Tribunal:	
Chairman:		Mr Davey
Members:		Mr Sidebottom	
			Mr Crawford

Appearances:  
The claimant was represented by Ms C.  Maguire of Law Centre (NI)
The respondent was represented by Mr D. Sharpe, BL instructed by Donaghy Carey Solicitors.

1.	The claimant had made a claim for unfair dismissal.  He had less than one year’s service and, consequently, in order to establish rights under Article 126 of the Employment Rights (NI) Order 1996 it was necessary for him to establish that the reason for his dismissal fell within Article 135 of the order.  The claimant asserted that the reason for his dismissal was because he had raised a complaint/grievance that an unlawful deduction had been made from his wages.  The parties agreed that the net issue for the tribunal was whether that was the reason or, if more than one, the principal reason for his dismissal.

2.	The tribunal found the following facts.  The claimant’s employment with the respondent as a maintenance man in her residential home commenced on 14 April 2008.  He received no written particulars of employment.  He was paid £400 net per week.  This state of affairs continued until the middle of August when, one Friday evening when he was given his wages by the wages clerk, Theresa, he was told he was on one weeks’ notice.  He asked to speak to the respondent but was told she was not there.  He saw her son, Alan, who was unable to comment.  The claimant returned home that evening but the following day received a phone call from Alan to say that he was to come back to work on the Monday, that there was work available and that he could not understand what the problem was.  

3.	The claimant returned to work on the Monday when he commenced the cleaning and renovation of a house in Cookstown belonging to one of the residents of the respondent’s home.  He worked on the house in Cookstown and from time to time on the respondent’s premises in Maghera.  The week beginning 20 October 2008 he was working in Maghera.  He worked up to the Thursday of that week.  He had an appointment on Friday when he would normally have been paid.  He was not paid on the Thursday before he left for the appointment.  On Sunday 26 October he received a teletext message from Alan instructing him to report for work at Maghera on the Monday as he Alan was finishing the Cookstown job himself.  The claimant was informed that he would be paid on Tuesday 28 October when the wages clerk came in to work.  However on the Tuesday the wages clerk said she knew nothing about this. 

4.	 Later that day he was approached by the respondent’s daughter, Ms McGilligan who gave him a cheque for £241.70.  About this time he also received a copy of a sheet of paper setting out a suggested revision of wages.  The claimant sought to raise the matter with the respondent who said she felt he was being paid too much.  She agreed to meet him the following day but this meeting did not take place.  A meeting finally took place on Friday when the respondent said that he was being paid too much and that people were telling her that he was watching her behind her back.  The claimant gave her a letter of grievance stating that he considered the reduction in his wages to be an unlawful deduction which had taken place without discussion or agreement.  She put the letter in the safe saying she would read it later.  This letter was dated 29 October 2008.  The claimant presented himself for work on Monday 3 November when he was approached by Alan who asked “What are you doing here?  You are sacked.”  The claimant asked who had sacked him to which Alan replied that the respondent had sacked him.  The claimant met the respondent outside her office and she confirmed this.  The claimant wrote another letter of grievance on 5 November 2008 which he posted to the respondent and a final letter about further outstanding money on 19 November 2008.  

5.	The claimant claimed Jobseekers Allowance.  The Department for Social Development wrote to the respondent on 7 November 2008 stating that under the Jobseekers (NI) Order anyone who leaves a job voluntarily or loses a job through misconduct can lose Jobseekers Allowance for up to 26 weeks.  The letter went on to ask how the claimant’s job had ended and whether, if he had not left or been dismissed, the job would have lasted another 26 weeks.  The form was completed to state that the claimant had left voluntarily and the job would have lasted another 26 weeks. The claimant disputed this version to the Department who wrote again to the respondent seeking further information.  A response was submitted on behalf of the respondent stating that the wages clerk had completed the previous form and had understood that the claimant had left voluntarily after a reduction in wages.  The response also stated that the claimant had no contract of employment because he was employed over the summer period as long as work lasted.  A letter was enclosed to the Department indicating that the claimant’s employment had been temporary, and the claimant’s agreed wage had been £400.00 gross, that due to the claimant informing the wages clerk that it was to be net he had been receiving more than the respondent could afford, and for that reason he had been given notice in August.  The position had changed when further work became available and he had been informed that if he wished he could remain until the residents’ home was renovated.  The letter claimed that after this job was completed the claimant knew there was no more work for him and they did not know why he had returned to work.  

6.	There was considerable divergence between the evidence of the claimant and the respondent on a number of points.  The tribunal preferred the evidence of the claimant and found the evidence given by and on behalf of the respondent unconvincing.  The tribunal did not accept there had been a misunderstanding about the claimant’s rate of pay.  It was clear from the evidence given on behalf of the respondent if there had been any misunderstanding there was no doubt that the rate of pay was fully understood by the end of May 2008.  No action was taken, the claimant continued to be paid at the original rate without comment or otherwise both before and after the notice given in August.  The claimant gave evidence that he had been telephoned by Mr Quinn the weekend immediately after he had been given notice in August with the information that he should return to work as there was plenty to be done.  No evidence was called on behalf of the respondent to refute this evidence.  The same is true of the teletext message sent by Mr Quinn to the respondent on the 26 October 2008.  There was no evidence given to the tribunal that any notification was given to the claimant when the work in Cookstown premises was nearing completion that he would no longer be required.  On the contrary he was told to report for work.  Nor does the tribunal accept that the fault as to any mistake about the claimant’s rate of payment was that of the claimant.  The original statement of the respondent to the tribunal was that she had informed the wages clerk that the applicant was to be paid £400 per week believing that the wages clerk would have realised that was to be gross.  In evidence to the tribunal she suggested that she asked the claimant to convey the message to the wages clerk.  This seems unlikely and it conflicts with her previous statement.   The respondent’s evidence to the tribunal was that she had originally hired him to give him a few weeks work because she took pity on him.  Given the size of the wage she agreed with him and the length of time for which he remained in employment the tribunal does not accept this description of the situation.  The evidence given by and on behalf of the respondent to the tribunal concerning the final period of the claimant’s employment was to the effect that he was well aware that there was no work for him.  This, according to the evidence given on behalf of the respondent, had been made abundantly clear to him on Tuesday 28 October in a discussion at which Ms McGilligan and the wages clerk, Theresa, were present.  This evidence conflicts with the teletext message previously referred to and with the statements made to the Department of Social Development.  It was stated that the wages clerk, Theresa completed the expenses to the Department.  Although the evidence given on behalf of the respondent was to the effect that the wages clerk was aware of the alleged lack of work, no explanation was forthcoming as to how she could, in those circumstances, have completed the forms sent to the Department of Social Development in the manner in which she did.

7.	The claimant’s case is really fairly simple.  He was in employment.  He had not been told to stop work.  He had not been given notice.  He had not been asked about any possible reduction or change in his wages.  He received a cheque for his previous weeks work which was significantly short of what he was ordinarily and contractually paid.  He sought to discuss it without success.  He wrote a letter of grievance and presented this when a meeting finally took place with the respondent on the Friday.  When he presented himself for work the following Monday he was informed he was sacked.  The only reason given was that he was getting paid by too much.  This picture is consistent with the facts as found by the tribunal.  It seems to the tribunal reasonable to conclude that, unless some other convincing reason could be given, the claimant’s dismissal was directly related, given the close proximity of events, to the grievance he presented the working day before he was dismissed.  The respondent’s case throughout was that money had nothing to do with it and that the reason for his dismissal was that there was no work. The tribunal, as has been made clear above does not accept the respondent’s evidence in this regard.  Accordingly the tribunal finds that the principal reason for the claimant’s dismissal was his raising of the grievance about the deductions being made from his wages.  He was clearly entitled to £400 and received £158.30 less.  That is a deduction within the meaning of the relevant Article.  The dismissal therefore falls within the provisions of Article 135 and accordingly, in order to raise unfair dismissal rights, it is not necessary for the claimant to have had a complete years service and the dismissal itself is automatically unfair.

8.	The tribunal will reconvene at a date to be fixed to deal with the matter of remedy.  

Chairman:

Date and place of hearing:	11 June 2009, Limavady	

Date decision recorded in register and issued to parties: