Case No.1 024
THE EMPLOYMENT TRIBUNAL
BETWEEN:
Applicant:
Respondent:
Geoffrey Griffiths
Ultimate Interiors Limited
DECISION OF THE EMPLOYMENT TRIBUNAL
HELD AT:
Douglas
ON: 14th September 2007
CHAIRPERSON:
Dr. Sharon Roberts
MEMBERS:
Mr. Derek M. Legg
Mrs Michele Edwin
REPRESENTATION
For the Applicant:
Was not represented and appeared in person
For the Respondent:
Did not appear at the hearing
DECISION
1.
The unanimous decision of the Tribunal is that the Applicant's complaint under
Section 17(1) of the Employment Act 1991 ("the Act") as to unauthorised
deductions from wages contrary to Section 13(1) of the Act is well founded in
that the Respondent has made a deduction of £1 ,773.75 from the wages of the
Applicant in contravention of Section 13(1) which the Tribunal now orders the
Respondent to pay that sum of £1 ,773.75 to the Applicant.
APPEARANCES
2.
The hearing was set for the 14th September 2007 on the 30 th August, by letter
from Mr. Quinn the Clerk to the Tribunal CMr Quinn") who had ascertained
previously the availability of the parties. In this respect for the Respondent, a
Ms. Wade at the Showroom for the Respondent had indicated Mr. Alan Davies
the Respondent's Managing Director C'Mr Davies") was available on the 14'h
September 2007.
3.
On the 11'h September 2007 following a telephone conversation between Mr.
Quinn and Mr. Davies, Mr. Davies sent a letter to Mr. Quinn indicating he was
unable to attend the hearing on the 14th September because the business was
"understaffed" and he (Mr. Davies) was unable to leave the business
unattended due to a female member of staff being on holiday until the 8'h
October 2007.
4.
The Chairman (Sharon Roberts) afforded the Applicant and the Respondent an
appointment to attend an interlocutory hearing wherein both parties would
argue for or against a postponement of the hearing on the 14'h September. Mr.
Davies indicated be could only attend such hearing at 5.30 pm because of
work commitments and therefore to accommodate this the interlocutory
hearing was set for the 12'h September at 5.30pm.
5.
The Applicant ("Mr. Griffiths") attended at 5.30 pm on the 12'h September but
the Respondent did not.
After a telephone enquiry made by Mr. Quinn it
appeared Mr. Davies had attended to a business matter rather than appearing.
Mrs. Roberts was disappointed that the Respondent had not seen fit to advise
of the fact he would not be attending on the 12th September.
6.
Mr. Griffiths argued strongly that the matter should not be postponed and the
Chairman was persuaded by his argument not to postpone the hearing.
7.
The Respondent was advised of this decision and forwarded a letter dated the
13 'h September requesting the hearing be adjourned on the 14'h September.
8.
The Tribunal considered this letter having heard argument from the Applicant
and the decision was that the hearing would proceed in the absence of the
Respondent on the 14'h September.
REASONS IN SUMMARY FORM
9.
The Applicant commenced employment with the Respondent as a Plumbing
and Heating Engineer on the 28 th November 2005 and the employment ceased
on the 14th December 2006. The Applicant gave evidence that he had decided
to leave the employment of the Respondent not least because of the irascible
nature of the Respondent.
10.
There was no Statement of Terms of Employment.
The Applicant was not
pursuing that lack in its own right but his claim was simply for payment of
wages he alleged were due to him.
11.
The Applicant indicated that on the 14th December 2006 he verbally told the
Respondent he intended to leave his employment with the Respondent but
was happy to work until the 21 st December 2006 when the business was due to
close for the Christmas holidays (this would have been effectively one week's
notice). The Applicant indicated that the Respondent told him that if he, the
Applicant, intended to leave he should leave immediately. This is indeed what
the Applicant did and he was left with no choice despite being willing to work
st
until the 21 December. The Applicant cleared the van he had of his personal
possessions, courtesy of his employment, and returned it to the Respondent
on the 15th December 2006. Evidence was given by Mr. Miles David Joughin
("Mr. Joughin") that this was indeed what had happened.
12.
The Applicant gave evidence that he did not receive any payment from the
Respondent for any work carried out in December.
13.
After Christmas, the Applicant received a letter from the Respondent dated the
th
26 th December 2006 ("the 26 December letter") a copy of which was included
in the letters attached to the Application and also with the response to such
filed by the Respondent.
14.
The 26 th December letter effectively accused the Applicant of stealing
equipment from the van which belonged to the Respondent and for that reason
no payment for work done in December would be paid until an audit of missing
th
equipment and materials had taken place. The 26 December letter indicated
the Police would not be called as it was clear that the Applicant was "not well".
15.
The
Applicant
vehemently
denied
stealing
any
equipment
from
the
Respondent. He indicated he provided all his own tools in any event and the
only items left in the van when he returned it were a small number of materials
for use on jobs ("the Materials"). These were the property of the Respondent.
16.
Mr. Joughin supported this evidence by indicating that the day after the van
was returned there were no Materials in it. He noticed that the Materials were
stacked in the comer of the showroom which would not normally happen. Mr.
Joughin believed the Materials in the showroom were the Materials and was
able to be sure of this as they were in "see through" boxes which other
workman other than himself and the Applicant did not use.
17.
th
The letter of the 26 December also alleged the Applicant had not given proper
notice to finish on the 21 st December.
18.
Significantly in the letter of the 26
th
December the Respondent states as
follows:"We will come back to you in January with our proposed
settlement figure after we finish our audit of the missing
equipment and materials"
The Respondent did not revert to the Applicant as to any proposed settlement.
19.
The letter of the 26 th December also enclosed a copy of a letter which was
allegedly sent to the Applicant prior to "the latest misdemeanour". This letter is
dated 5th December ("the 5th December letter") which in essence refers to poor
time keeping and stated that it constituted an official waming.
20.
The Applicant vehemently denied the contents or indeed ever having seen the
5th December letter until he saw it when attached to the letter of the 26 th
December. Indeed the Applicant averred the letter of the 5th December had
th
been written at the same time as the letter of the 26 December.
21.
On the 22 nd January 2007 ("the 22 nd January letter") the Respondent wrote to
the Tribunal Office confirming they intended to contest the claim of the
Applicant to the Tribunal and indicating that the Police would be "taking a
statement regarding the above person [Mr. Griffiths] so I am unable to provide
you with our defence until that issue has been resolved"
22.
No further evidence as to a Police investigation has been provided by the
Respondent. The Applicant indicated he had made enquiries and no Police
investigation was under way at the present time.
In any event, for the
avoidance of doubt, he reiterated he had not stolen anything from the
Respondent nor done anything which would warrant a Police investigation.
23.
The lack of a written statement had made the task of the Tribunal in
ascertaining what the Applicant's entitlements are, somewhat difficult.
The
Applicant himself did not know whether he was supposed to have paid holidays
or whether, had his employment continued, he would be paid for Christmas
holidays. The Applicant was not able to help the Tribunal in its enquiries as to
whether he had had any paid holidays during the year 2006.
He could not
remember he said.
24.
The Applicant provided a pay slip for the month ending 31" October 2006
which showed an hourly rate of £15 per hour. It also showed "expenses of £70
non taxable" for the month.
The Applicant explained that this £70 was
repayment of petrol paid for by him and mobile phone calls paid for by him but
which were ones for business purposes.
25.
The Applicant indicated he sought the sum of £2,400 which equated to one
calendar month's wages
26.
The Applicant produced work sheets to the Tribunal and looked at these for the
weeks commencing 1" December - 14'h December.
He gave evidence that
these showed at least an 8 hour day for each working date.
27.
The Applicant indicated to the Tribunal he had not given his consent to any
deduction from his wages except Tax and National Insurance for the month of
December 2006.
28.
The Respondent, as indicated, did not appear at the hearing and the Tribunal
took account of the following:The Notice of Appearance dated the 22 nd January 2007 which had attached to
it the letter of the 26 th December, the letter of the 5'h December and the letter of
the 22 nd January, a hand written letter from the Applicant to the Respondent
dated the 18 th December 2006 ("the Papers of the Respondent")
THE LAW
29.
The Applicant's complaint appeared to the Tribunal to be brought under
Section 17(1)(a) of the Act, which is set out below for ease of reference.
"17 (1) An employee may complain to the Tribunal -
(a)
that his employer had made a deduction from his wages in
contravention of Section 13(1) (including a deduction made in
contravention of that provision as it applied by virtue of Section 14(3),
or"
Section 13 (1) of the Act provides -
"13 (1) An employer shall not make any deduction from any wages of any
employee employed by him unless (a)
the deduction is required or authorised to be made by virtue of any
statutory provision or any relevant provision of the employee's contract;
or
(b)
the employee has previously signified in writing his agreement or
consent to the making of it"
Section 19 (1) of the Act provides for the definition of "wages" as follows -
"19 (1) In sections 13 to 20 "wages", in relation to an employee, means any
sums payable to the employee by his employer in connection with his
employment including (a)
any fee, bonus, commission, holiday payor other emolument referable
to his employment, whether payable under his contract or otherwise;
(b)
any amount owed in respect of a payment for time off under Section 26
(3),30 (3) or 31 (4);
(c)
any amount owed in lieu of notice, or in respect of a payment due
under Schedule 1;"
FINDINGS
30.
The Tribunal is mindful of the fact that the evidence given under oath by the
Applicant and Mr. Joughin was not tested by the Respondent.
31.
The Tribunal is mindful of the fact it did not hear evidence from the Respondent
and relied solely on the papers of the Respondent in respect of the response of
the Respondent.
32.
The Tribunal is mindful of the following:(1)
The letter of the 26 th December which indicated wages were due.
(2)
That there was no dispute that the Applicant had not received any wages
for the month of December.
(3)
That the Applicant had worked until (and including) the 14th December.
(4)
The October 2006 wage slip showed an hourly rate of £15 per hour for a
40 hour week which equated to £2,400 per calendar month gross.
(5)
There is no agreement as to deductions to be made from wages.
33.
The Tribunal finds that:-
(1)
The Applicant had worked for the Respondent from the 1st to 14th December
2006 inclusive.
(2)
The Applicant had not been paid for any of those days.
(3)
The Applicant had not agreed any deduction from his wages for the month of
December save for Tax and National Insurance.
(4)
The hourly rate was £ 15 per hour gross.
(5)
Although willing to work until the 21 st December, the Applicant was prevented by
the Respondent from so working.
(6)
The Respondent should pay to the Applicant the sum of £1,773.75 calculated as
follows:Friday 1st December
Monday 4th December
Tuesday 5th December
Wednesday 6th December
Thursday 7'h December
Friday 8th December
Monday 11 th December
Tuesday 12'h December
Wednesday 13 th December
Thursday 14th December
8 hours actual hours indicated by Mr. Griffiths
in evidence.
8Y, hours
8 hours
8 hours
8Y, hours
8Y, hours
9 hours
2 hours
8Y, hours
9Y. hours
78Y. hours
Friday 15h, Monday 18h,
Tuesday 19h, Wednesday 20 th ,
Thursday 21 st 40 hours
Assumed 8 hour days =
118Y. hours at £15 per hour
=£1,773.75
Deduction for ITIP and National Insurance will need to be made from the £1,773.75 but
that is a calculation for the Respondent, not the Tribunal.
Signed .... .
Dated ....
~RON R BVE~RJ..hS""'/l~
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Sent to Parties on ...
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Entered in Register .............................................
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Clerk to the Tribunal
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Notice
The Employment Tribunal (Interest on Awards) Order 1992
Tribunal Case No. 1024
Mr Geoffrey Griffiths -v- Ultimate Interiors Limited
The Employment Tribunal (Interest on Awards) Order 1992 provides that sums of money payable as a
result of the decision of an Employment Tribunal shall carry interest, where the sum of money remains
unpaid on the "Calculation Day", which is the day immediately following the expiry of 42 days beginning
with the "Decision Day", this being the date upon which the Tribunal's decision is recorded as having
been sent to the parties.
In respect of the above case:
th
The Decision day is the 8 October 2007
th
The Caleulation Day is the 19 November 2007
The prescribed rate of interest is 4 % per annum.