IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Mr Paul Tumelty

CLAIMANT

 

AND

 

 

JET Communications Limited

RESPONDENT

 


TRIBUNAL JUDGMENT


 

 

Reference:  TRE[2017]048

 

Hearing Date:  22 November 2017

 

Before: Advocate Mike Preston, Deputy Chairman                                 

 

Appearance:

For the Claimant: In person       

For the Respondent: Mr Joe de Freitas

 

 

JUDGMENT

 

BACKGROUND

 

 

1.      The Tribunal was convened to consider the Claimant’s complaints as follows;

a.       a claim for 26 weeks’ compensation in respect of a complaint of unfair dismissal contrary to the right set out in Article 61 of the Employment (Jersey) Law 2003 (the “Law”);

b.      a claim for 12 weeks’ unpaid notice pay in respect of a complaint of wrongful dismissal made in accordance with Article 86(1) of the Law;

c.       a claim for 20 days’ unpaid holiday pay for 2015-16;

d.      a claim for 13 days’ unpaid holiday pay for 2016-17;

e.      a claim for 3 days’ wages for unpaid Bank Holidays;

f.         a claim for unpaid wages for March 2017; and,

g.      a claim that in breach of contract the Respondent failed to pay to the Applicant pension payments of 6% of his salary.

 

2.       At a Case Management meeting on 22 June 2017, the Chair of the Tribunal ordered that the question of whether the Claimant had been dismissed or whether he had resigned would be determined as a preliminary issue. An Interim hearing was held and by his Judgment dated 3 August 2017 the Deputy Chair found that the Claimant had been dismissed. An indication was given that on the basis of the facts as found, it was difficult to see that the dismissal could have been fair.

 

3.      A further Hearing was required to determine whether that dismissal was unfair and/or wrongful and the level of any award of compensation and/or damages that should be made to him. This Judgment concerns that further hearing.

 

 

THE EVIDENCE

 

4.       The Deputy Chair heard from the Claimant on his own behalf and from Mr Joe de Freitas on behalf of the Respondent. The evidence that had been given at the Interim Hearing and, as was referred to in the Judgment of 3 August 2017, was taken as read. The Claimant stated that as appeared from that Judgment, he had been treated badly throughout the process and it was clear that his treatment had been unfair. The failure on the part of the Respondent to contact him at all during his lengthy period of absence was inexplicable. For the Respondent, Mr De Freitas candidly accepted that there was no real answer to the question as to why he had not been in contact with the Claimant. The fact was that he just had not. He stated that, on reflection, he should have done.

 

5.       As the Respondent had treated the Claimant as having resigned no payment had been made in respect of notice pay. Further, it was accepted that the Claimant had not been paid the sums set out in paragraphs 1(c) to (f) above. It was not seriously contended that he was not due those sums given the findings of fact that were made.

 

6.       The one area of controversy concerned the question of the Claimant’s contractual entitlement to a pension contribution. It was the Claimant’s position that his contract of employment dated 1 October 2004 was clear in that it stated that he “shall receive 6% of [his] salary to be invested into a private pension scheme designated by [him]” (emphasis added). He accepted that it was only when he was making the present claim for compensation in April 2017 that he noticed that he had received nothing with respect to the pension.

 

7.       The Respondent relied upon the fact that the Claimant had not designated a pension scheme into which contributions should be made and that in a letter also dated 1 October 2004, all employees had been invited to complete a form with regard to such a designated scheme. The form had been provided to all employees at the time that they were given their employment contracts as that was at the point that, following a management buy-out, the Respondent took on all of the employees. Mr de Freitas was very clear in his recollection of this point. The form required each employee to provide details of the pension scheme into which payments would be made and that this was required in order to “take advantage of this scheme”. The Claimant had not provided any such information and as a consequence no payments were made nor were any due. It was the Claimant’s position that he had never received the form and that as a result there had been a breach of his contract in not making the required payments.

 

THE DECISION

8.      The Deputy Chair carefully considered all of the evidence, both written and oral, and the submissions that were made at the Hearing. The Deputy Chair finds as a matter of fact that the Claimant was unfairly dismissed and entitled to compensation as claimed. In addition, he finds that the Claimant was wrongfully dismissed and entitled to notice pay as claimed. The various unpaid sums under paragraph 1 (c) to (f) were also found to be payable.

 

9.      As to the pension claim, the Deputy Chair found as a matter of fact that the Respondent was not in breach of contract for failing to pay pension contributions as claimed. Mr De Freitas’ evidence to the effect that the form was given to all employees at the time that contracts were provided was accepted. The form requiring pension information had to be read in conjunction with the contract and it made the payment of pension contributions conditional upon the Claimant providing that detailed information. The Claimant did not provide any information and, as a result, was not entitled to receive contributions as claimed.

 

10.   As a consequence of the above findings, an award is made to the Claimant as follows;

a.       £11,826.88 for unfair dismissal, being 26 weeks at £454.88;

b.      £5,458.56 in respect of notice pay, being 12 weeks at £454.88;

c.       £1,819.52 in respect of unpaid holiday pay for 2015-16;

d.      £1,182.69 in respect of unpaid holiday pay for 2016-17;

e.      £272.94 in respect of unpaid Bank Holiday pay;

f.         £1,715.79 in respect of salary for March 2017; and,

g.      no award in respect of pension contributions.

 

The total award is £22,276.38.

 

 

 

 

Advocate Mike Preston, Deputy Chairman                                              Date:

 

 

………………………………………………..

 


Page Last Updated: 15 May 2018