IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Miss Clare Colette Forgione

CLAIMANT

 

AND

 

 

Total Living Care Limited

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:                    [2017] TRE125

 

Hearing Date:                20th April 2018

 

 

Before:                                     Advocate Ian Jones, Deputy Chairman              

 

 

Appearance:

For the Claimant:           Mr Nick Le Cornu

For the Respondent:     Mr Chris Hopkins

 

 

 

JUDGMENT

 

INTRODUCTION

 

1.                    By claim form dated 17th August 2017, Ms Forgione complained that the Respondent had acted in breach of her employment contract by: (i) not paying her for all of the hours that she had worked; (ii) not paying her for her accrued holiday; and (iii) a deduction of £600 in relation to training expenses, which was taken out of her salary.

 

2.                    There was no dispute that pursuant to the contract of employment (the "Contract") Ms Forgione was employed by the Respondent and entitled to be paid for her work. There was equally no dispute that Ms Fogione was entitled to be paid for accrued holiday. In these respects the Contract was entirely normal.

3.                    Similarly there was also no dispute between the parties that there was a training agreement (between Ms Forgione and the Respondent) (the "Reimbursement Agreement") which enabled the Respondent to claw back training costs from Ms Forgione if she resigned within 6 months of completing the training. Again, this type of arrangement is not unusual as employers will often pay for their employees to undertake training courses (which undoubtedly benefit the employer) but then seek to protect themselves from that employee resigning and moving to a competitor. In that circumstance the employer would gain no benefit from its investment and so the employer will often specify that an employee is obliged to repay the training costs if they resign within a specified period.

 

4.                    The preparation of the case was beset with difficulties and delays. Indeed the Tribunal gave serious consideration to striking out Ms Forgione's claim as a sanction for non-compliance with various case management orders. In my view Ms Forgione's approach to her claim was in some ways unacceptable in that it tended to place the Respondent in a difficult and even prejudicial position. To the credit of Mr Hopkins (appearing on behalf of the Respondent), while he on occasion tried to make too much of Ms Forgione's missteps, he made the best of a bad situation and prepared the Respondent's case as well as he could.

 

5.                    Somewhat late in the day Ms Forgione, who at this time was on the verge of being struck out, engaged the services of Mr Le-Cornu who assisted her in the preparation of her case and complying with the orders of the Tribunal. The focus of the Tribunal, as always, was on whether or not it was possible for there to be a fair hearing in accordance with the overriding objective. Mr Le Cornu's involvement, albeit late in the day, meant that Ms Forgione did ultimately comply with all of the case-management orders and it was therefore possible to deal with the case both fairly and justly.

 

6.                    Given that Ms Forgione was a litigant in person and plainly did not understand some of the processes involved, despite the best efforts of the Tribunal (and those supporting her) she was given some not inconsiderable latitude. This was to the evident chagrin of the Respondent but I was not quite persuaded, despite his best efforts, that Ms Forgione should be sanctioned in the way suggested. In my view, to strike-out Ms Forgione's claim in the circumstances would have been contrary to the overriding objective of the Tribunal.

 

 

 

7.         The Tribunal was therefore tasked with determining three discrete issues:

 

(i)                              how many hours did Ms Forgione actually work over and above those hours that she had already been paid for;

(ii)                            how much holiday had Ms Forgione accrued at the point of her resignation and how much holiday had she taken out of that accrual; and

(iii)                           was the effect of the Reimbursement Agreement that the Respondent could deduct training expenses from Ms Forgione's salary (the "Claims").

 

PRELIMINARY / INTERIM ISSUES

 

8.                    Before the final hearing commenced the Respondent applied again for Ms Forgione's claim to be struck out. This was on the basis that pursuant to Article 24(1) of the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016 (the "Order") the Claims had no real (or any in Mr Hopkins' submission) prospect of success.

 

9.                    The Respondent was of course permitted to make his application but it quickly became apparent that the application required me to make findings of fact on the evidence that was in the hearing bundles. I tested this with Mr Hopkins by asking him if he accepted that the Claims would succeed if the Tribunal accepted or believed all of Ms Forgione's evidence. He confirmed that on the assumption that Ms Forgione's evidence was accepted by the Tribunal then the Claims would succeed.

 

10.                 I concluded that as the Claims would be proved in the event that the evidential findings of fact were in Ms Forgione's favour, Mr Hopkins' strike-out application must fail. Accordingly the application was dismissed and the substantive hearing commenced.

 

11.                 The other ancillary issue which arose after the lunch-break was an application by Mr Le-Cornu on behalf of Ms Forgione to admit further evidence. Mr Le-Cornu explained that the further evidence was relevant and would shed further light on Ms Forgione's claim. The Tribunal queried whether or not this evidence was previously available and if it was why it hadn't been disclosed to the Respondent. Mr Le-Cornu was not able to answer that question. Further discussion revealed that Ms Forgione had been carrying the new evidence around in her bag and had only just realised that she had it.

 

12.                 Mr Le-Cornu correctly sensed that half-way through a final hearing I was not happy learning that there was further disclosure which still had not been made. Particularly as many of the problems in the lead up to the final hearing (referred to above) centred around Ms Forgione's failure to give proper disclosure. However, this led Mr Le-Cornu to make the curious and somewhat surprising submission that the new evidence he was seeking to admit / rely on 'was not really that important' and 'probably would not make that much difference'. In the circumstances I found this to be an extraordinary submission; Mr Le Cornu's submission seemed to now be that I should not have concerns about the non-disclosure / late admission of this evidence as it was not actually important.

 

13.                 Before Mr Le-Cornu made this submission I was minded not to allow him to present this new evidence. In my view, and particularly given the procedural history of the case, it was unfair to the Respondent to allow Ms Forgione to adduce new evidence which had not been disclosed pursuant to previous case management orders. Particularly as there was literally no explanation before the Tribunal as to why the evidence had not been disclosed, in breach of the extant case-management orders.

 

14.                 I was left in no doubt that this was the correct decision following the submission that this new evidence was of little importance. It seemed to me that if the new evidence was unimportant that little prejudice could be said to accrue to Ms Forgione if I did not allow her to rely on it. It also meant that I could be certain that no prejudice would accrue to the Respondent. In the circumstances of this particular application, it was clear that refusing the application was the way to strike the correct balance. Accordingly I refused this application.

 

THE FIRST ISSUE – UNPAID WAGES

 

15.      The first substantive issue was the claim for unpaid wages and as indicated above, in essence the claim was that Ms Forgione had been underpaid / not paid for all of the hours that she had worked. The Respondent denied this and so it fell to Ms Forgione to prove to the requisite standard the hours that she had in fact worked and the money that she had in fact been paid. Plainly if she was able to establish that he had worked more hours than she had been paid for then this part of her claim would succeed.

 

16.      The majority of the hearing was taken up by Ms Forgione's evidence and in particular her cross-examination by Mr Hopkins and further / additional questioning from me. In essence there were three competing pieces of evidence: (i) Ms Forgione's witness statement / live testimony; (ii) Ms Forgione's diary which she relied on to corroborate her evidence re: the hours she worked; and (iii) the time-sheets and records of the Respondent which was the basis upon which Ms Forgione's wages had been calculated.

 

17.                 As it transpired the most important piece of evidence was Ms Forgione's diary. As will become clear later (and indeed as was conceded by Mr Hopkins) the records kept by the Respondent, as presented to the Tribunal were execrable; they were entirely unreliable and for the most part I did not find them at all informative or helpful. I accepted that the Respondent's own records were the records upon which it relied when paying Ms Forgione. I also accepted that the quality and accuracy of these records (or lack thereof) was in part the responsibility of Ms Forgione who was seemingly responsible for recording her time and submitting her time-sheets. However, it was clear that the reliability of these records was at best open to serious question.

 

18.                 Ms Forgione's case was that the records kept by the Respondent were not accurate and that instead the Tribunal should have reference to her own evidence as to the hours that she in fact worked. The entirety of her evidence on this point was a combination of Ms Forgione's own memory and her diary where she said that she kept records of the hours that she worked. Mr Hopkins' cross-examination and the questions from the Tribunal were almost exclusively focussed on testing the reliability of Ms Forgione's memory and the diary. Unfortunately for Ms Forgione, and in the view of the Tribunal, neither her memory nor her diary was any better than the records kept by the Respondent.

 

19.                 Mr Le-Cornu had gone to the trouble of producing a spread-sheet which was based on the information in Ms Forgione's diary and sought to focus the Tribunal's attention on the spreadsheet and what it showed / calculated. In principle the spread-sheet could have been a helpful document and it was certainly more clear / easier to understand than either the diary or the Respondent's records. However, it is axiomatic that the reliability of the spreadsheet was inextricably linked to the reliability of the diary. Put another way, the spreadsheet was not evidence and its usefulness was always going to be limited if the Tribunal was not confident as to the reliability of the diary.

 

20.                 Mr Hopkins' cross-examination of Ms Forgione focussed almost exclusively on the inconsistencies between the diary and the records of the Respondent. This was an entirely reasonable approach to take, and for the most part Mr Hopkins made his points very well. However, given the Tribunal's findings as to the reliability of the evidence in support of both parties' on this point the inconsistencies he identified did not ultimately advance the case for the Respondent as far as Mr Hopkins believed.

 

21.                 Under cross-examination, Ms Forgione conceded that in fact the diary was not 100% reliable and contained what she described as 'little mistakes'. This concession turned out to grow in its importance as her evidence progressed as each inconsistency or problem that was identified (and accepted) was explained away as a 'little mistake'. The problem that this caused for Ms Forgione was it became increasingly difficult to distinguish between what were 'little mistakes' and what was in fact accurate. The Tribunal also could not help but notice that each 'little mistake' was exclusively in Ms Forgione's favour. Put another way the discrepancies between the hours Ms Forgione recalled / recorded as working, and what the company records showed always seemed to have the effect that Ms Forgione was owed further or additional wages.

 

22.                 For the avoidance of doubt there is no suggestion by the Tribunal that Ms Forgione is dishonest in any way, or was being dishonest before the Tribunal. On the contrary I found Ms Forgione to be a genuine and earnest witness who was doing her best to answer the questions put to her both by Mr Hopkins and the Tribunal. Unfortunately and perhaps understandably she did not have perfect recall of all of the hours that she worked and her diary did not assist Ms Forgione as she hoped that it would.

 

23.                 Perhaps of most significance to the Tribunal was the fact that if Ms Forgione was keeping a contemporaneous record of her hours, which plainly she was, then she was best placed to identify if / when she was not paid for the hours that she had worked. In my view while most employees might not know to the penny what their weekly or monthly wage is, they have an approximate idea. I also took the view that surely the main reason Ms Forgione was keeping a record of her hours was to ensure that she was being paid properly and in full? It was not clear otherwise why such a record would be created and kept. The crucial point is that when Ms Forgione was paid by the Respondent, she was well-placed to check and then challenge the quantum of her wages if it was incorrect. Indeed it was accepted that there had been occasions when Ms Forgione had queried the accuracy of her payslips and successfully asked for them to be amended and reissued.

 

24.                    Unfortunately for Ms Forgione, not addressing the issue of her suspected underpayment at the time only made it more difficult for her to establish her case before the Tribunal. Especially as there was no satisfactory explanation as to why Ms Forgione did not address the issue at the time. I found it unlikely that any employee would not notice that they were not being paid in full for the length of time Ms Forgione claimed. I also found it unlikely that an employee would not do anything about being underpaid until after they had resigned.

 

25.                    I have found this claim very difficult to determine as on the one hand I had doubts about the reliability of Ms Forgione's testimony and the degree of reliance I could place on the other evidence, particularly the diary. On the other hand, and as I have said above, the record-keeping of the Respondent was appalling and provided no comfort to the Tribunal (or by extension I am sure Ms Forgione) that the Respondent paid Ms Forgione correctly. Indeed I strongly suspect that the Respondent's records relating to Ms Forgione's hours are wrong / incomplete and it follows that Ms Forgione pay was calculated incorrectly. Whether such inaccuracy was ultimately in her favour or not I am unable to say. I am also reluctant to find against Ms Forgione and thereby reward the Respondent for not maintaining adequate records.

 

26.                    However, and all of that being said, it was for Ms Forgione to prove her case on the balance of probabilities. As set out above, what Ms Forgione needed to establish was precisely the hours that she had in fact worked. Proving this was fundamental to her case and unfortunately Ms Forgione was not able to prove the hours that she in fact worked and so it follows that Ms Forgione's claim for unpaid wages must fail.

 

THE SECOND ISSUE – UNPAID HOLIDAY PAY

 

27.                 Unfortunately for Ms Forgione her claim for unpaid holiday pay relied on predominantly the same evidence as she advanced in relation to her claim for unpaid wages. Namely her own recollection and her diary. In the case of her holiday pay Ms Forgione also relied on an email that she sent to the Respondent but in truth that added little to the evidential position.

 

28.                 For the same reasons this claim as set out above this claim must also fail as Ms Forgione was not able to prove what holiday she did in fact take. By extension she could not therefore establish that she was owed any additional or outstanding holiday pay.

 

29.                 Again, the records kept and presented by the Respondent were not helpful but again, it was for Ms Forgione to prove her case and unfortunately she was not able to do that.

 

THE THIRD ISSUE – CLAWBACK OF TRAINING EXPENSES

 

30.                 The third issue was perhaps the most controversial and hotly contested between the parties due to the allegations which had been made by the Respondent since the onset of proceedings.

 

31.                 Ms Forgione's case was that although she had signed the Reimbursement Agreement it had been later agreed between her and the Respondent that the Reimbursement Agreement would not apply to the QCF3 course / qualification. Ms Forgione's evidence was that she did not want to do this course but that the Respondent asked her to as another member of staff had dropped out.

 

32.                 It is the Tribunal's understanding that the Respondent needed one of its employees to complete the QCF3 course and obtain the relevant qualification and Ms Forgione was identified or selected for the task. To her credit Ms Forgione obtained the qualification as requested but her evidence was that she did not want (or need) to obtain the qualification from a personal perspective and that she only did it because the Respondent asked her to.

 

33.                 Crucially Ms Forgione's case was that she only agreed to undertake the qualification, which came at a cost to the Respondent, if the cost of the course was excluded from the Reimbursement Agreement. In other words, Ms Forgione's evidence was that she undertook the qualification on the understanding that if she resigned from the Respondent she would not have to repay the fees. Ms Forgione confirmed in her evidence that Jayne Hopkins on behalf of the Respondent agreed to this proviso.

 

34.                 In support of Ms Forgione's case a Mrs Sharon Middleton also gave evidence confirming that she had amended the Reimbursement Agreement in accordance with instructions received from Mrs Jayne Hopkins on behalf of the Respondent. This amendment reflected the fact that Ms Forgione would not be liable to pay for the QCF3 course (the "Amendment").

 

 

35.                 The Respondent's case was both simple and controversial. The Respondent's position was that there was no agreement as suggested by Ms Forgione or at all. It followed that Ms Forgione was liable to repay the costs of the QCF3 course as set out in the Reimbursement Agreement. Mrs Hopkins gave evidence on behalf of the Respondent denying that there was any agreement along these lines; Mrs Hopkins was also adamant that she did not give Mrs Middleton (or anybody else) instructions to make the Amendment.

 

36.                 The Respondent's case went further as it had reported Ms Forgione to the police and made various allegations in relation to the Reimbursement Agreement and the Amendment. This potentially raised a number of difficult issues for both the Tribunal and Ms Forgione but at the time of the hearing the Tribunal had been advised that although a complaint had been made, there was no active investigation concerning Ms Forgione.

 

37.                 For the avoidance of any doubt, and for the benefit of Ms Forgione, in my view the Respondent came nowhere close to establishing that Ms Forgione had engaged in any criminal behaviour concerning the Reimbursement Agreement or the Amendment. In fact I would go so far as to describe this aspect of the case as something of a red-herring. This aspect of the case has accordingly played no part in any of my findings in this case.

 

38.                 The question for the Tribunal is whether or not Ms Forgione was able to satisfy the Tribunal, on the balance of probabilities, that there was an agreement she would not have to reimburse the Respondent for the QCF3 course pursuant to the Reimbursement Agreement. I considered the evidence of both Ms Forgione, Ms Middleton and Mrs Hopkins. I also considered the Reimbursement Agreement and the Amendment. On reflection I much preferred the evidence of Ms Forgione. As above, I found her to be an honest and earnest witness and I was persuaded by her evidence that she did not want or need to do the QCF3 course and in fact only undertook the training at the behest of the Respondent. I note that this evidence was largely unchallenged.

 

39.                    In my view, in circumstances where Ms Forgione did not want or need to do the QCF3 course, and it was at the behest of the Respondent that she undertook the qualification, it would be unusual for any claw-back provisions to apply. Such provisions, as referenced above, are designed to protect an employer from funding an employee to gain qualifications and then lose that employee to a competitor, without compensation. This circumstance is in my view entirely different.

40.                    It is the judgment of the Tribunal that Ms Forgione is unlikely to have agreed to undertake a qualification that she did not want or need and by so doing make herself liable for the fees of that qualification. It is far more likely that she would have said to the Respondent that she would undertake the qualification if it was excluded from the Reimbursement Agreement. Ms Middleton's evidence confirmed that this was the position as understood and agreed by the Respondent. Indeed she gave evidence that she was instructed to amend the Reimbursement Agreement by Mrs Hopkins to reflect the new position.

 

41.                    The Respondent was not really able to make any headway in undermining Ms Forgione's case on this point, nor did it present any evidence to contradict or otherwise damage that presented by Ms Forgione. Mrs Hopkins denied what was described by both Ms Forgione and Ms Middleton but on balance I preferred the evidence of Ms Forgione in this regard.

 

42.                    Accordingly Ms Forgione succeeds in establishing that the Respondent should not have deducted the fees for the QCF3 qualification and that therefore the Respondent was in breach of contract; the deduction from Ms Forgione's wages was unlawful.

 

CONCLUSION / ORDERS

 

43.                 By reason of the foregoing the Tribunal makes the following orders:

 

(i)            Ms Forgione's claims for unpaid wages and unpaid holiday pay are dismissed; and

(ii)          Ms Forgione's claim for breach of contract in relation to deductions made from her wages is proved. The Respondent is hereby ordered to pay Ms Forgione the sum of £600 by way of damages for breach of contract.

 

 

Summary of Award

 

Damages for deduction of wages

£600.00

TOTAL AWARD

£600.00

 

Advocate Ian Jones, Deputy Chairman                                                    Date:

…………………………………………………         


Page Last Updated: 06 Jul 2018