IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Mark O’Meara

CLAIMANT

 

AND

 

 

A R Lunn Limited

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:                    [2017]TRE168

 

Hearing Date:                26th February 2018

 

Before:                                     Advocate C R Davies, Deputy Chairman

                                               

 

Appearance:

For the Claimant:           In person

For the Respondent:     In person

 

 

JUDGMENT

 

The Tribunal has found as follows:

  • The Claimant was not unfairly dismissed.  He left his employment;
  • The Claimant is not entitled to notice pay.  He left employment without working a notice period;
  • The Claimant was not given payslips, and the tribunal awards one week’s wages in compensation; and
  • The Claimant is entitled to 8 days holiday pay.

 

THE REASONS

 

Summary

  1. Shortly before the hearing Mr O’Meara applied to adduce new evidence in the form of messages between him and another former employee of Mr Lunn.  This fellow employee was not available to attend the hearing and had no personal knowledge of the termination of Mr O’Meara’s employment.  The messages have had no bearing on the outcome of this case.
  2. The Claimant was employed as a lorry driver.  His employment came to an end in September 2017 and he applied for compensation for unfair dismissal in the sum of £4,320.00, holiday pay in the sum of £864.00, notice pay in the sum of £410.40 and compensation for the employer’s failure to provide him with payslips in the sum of £2,160.

 

  1. The Respondent’s position was that the Claimant was not dismissed, that he was entitled to some holiday pay but not the amount claimed, and that pay slips were available for all staff but not routinely distributed.

 

  1. There had been an error with the contract.  It was the intention of the Respondent that Mr O’Meara would have a zero hours contract.  Mr Lunn accepted that the document drawn up was not that kind of contract, and that Mr O’Meara was entitled to the protection afforded by the Employment (Jersey) Law 2003.

 

The Facts

  1. It is agreed that the employment came to an end on 1 September 2017.  According to Mr O’Meara Mr Lunn sacked him.  According to Mr Lunn Mr O’Meara had walked off the job.

 

  1. The next contact after 1 September was a series of text messages between Mr Lunn and Mr O’Meara.  Mr O’Meara said he had been sacked and Mr Lunn said he hadn’t.  Mr Lunn in one message said “Your words were I am going I said ok give me the key & you went simple”.

 

  1. The Claimant took advice from JACS and wrote to his employer on 6th September, claiming unfair dismissal.  He also raised the subject of holiday day and pay slips.  Mr Lunn then sent a further text message saying “I did not sack you. The position is still open you walked off the job have not returned.”  As Mr O’Meara did not return to work, he assumed he had resigned.  In fact by 12th September 2017 Mr O’Meara was in new employment.

 

  1. Mr Lunn responded to Mr O’Meara’s letter formally on 19th September 2017. He provided a copy of the Claimant’s employment contract, stated again that the Claimant had “walked off the job” and that he “never told (the Claimant) that he had been sacked.”  He had, he said, been left in the lurch by the Claimant and that it was the Claimant who terminated the employment. Mr Lunn accepted that Mr O’Meara had a holiday entitlement of 8 days but felt that he had been paid for 4 days.

 

  1. Mr O’Meara started these proceedings in October 2017.  He stated in his claim form that Mr Lunn had told him to go home and had shouted at him.  This led him to believe he had been dismissed. He claimed 8 days annual leave, notice pay and compensation for the failure to give him pay slips.

 

  1. Mr O’Meara did not file a witness statement prior to the hearing but produced a short written statement on the day of the hearing. He said that Mr Lunn had shouted at him and had been aggressive. Mr Lunn had told him to go home (using a swear word) and had asked for the key to the lorry.  Mr O’Meara claimed Mr Lunn had said he had “had enough of me”.   

 

  1. Mr O’Meara gave evidence on oath.  He stated that there had been an argument on Thursday 31 September 2017 and this had continued on the Friday morning.  Mr O’Meara repeated the form of words set out in his claim form and statement and now added that Mr Lunn had said “he and me were done”.  Those were the words used, he said.  He claimed that he had asked for pay slips and had got fed up of asking for them.  He said that he had taken no paid holiday in 2017, and was entitled to 8 days’ pay.

 

  1. In his response to the claim form Mr Lunn stated that it was Mr O’Meara who had walked off the job. This was after an altercation when Mr Lunn had asked for outstanding information and reminded Mr O’Meara not to drive too fast.  Mr O’Meara said “I’ve had enough of this” and left.  Mr Lunn asked him for the key to the lorry as there was no spare.  Mr Lunn stated that similar things had happened before and that Mr O’Meara would then turn up to work the next day as normal, so he did not contact him.  Mr O’Meara did not turn up for work on the next working day.  Mr Lunn had a task arranged for Mr O’Meara that day, and had to arrange for another driver to do the job.  Mr Lunn felt that he had gone above and beyond as an employer.  He said that he had the wage slips in the van.  He had not handed them out, but Mr O’Meara had never asked for them.

 

 

  1. In his witness statement Mr Lunn accepted there had been an argument. He said that he had not sacked Mr O’Meara, he had work for him to do and his failure to turn up for work caused him a problem. The Tribunal heard evidence on oath from Mr Lunn.  Mr Lunn felt that Mr O’Meara had thrown a “hissy fit”.  He had not walked off the job and gone home before, but he had taken early breaks and gone home early before.  He thought he would turn up.  On the subject of wage slips, he always had these in the van.  He had tried to give them out, but Mr O’Meara didn’t want them.  He accepted that he could have posted them to him.  Mr Lunn added that Mr O’Meara was a good driver and he would have liked him to stay.  Unfortunately Mr Lunn gave confusing evidence about the holiday pay due to Mr O’Meara (which he felt was 4 days, rather than 8) but he appeared to accept that Mr O’Meara had not taken any of his holiday entitlement for 2017. He indicated that if the holiday pay was due it would be paid.

 

  1. The Tribunal finds the following facts:

 

    1. There was an argument on Thursday 31 August 2017 which continued on the morning of 1st September 2017.  I do not need to make any findings about that argument or who was in the right.  On a balance of probabilities I find that Mr Lunn probably raised his voice, and probably used an expletive at some point.  I do not consider that Mr O’Meara was afraid of Mr Lunn or unduly intimidated by him.  In terms of the words used Mr O’Meara and Mr Lunn have different recollections.  I have heard the evidence of both witnesses and I note that Mr Lunn has been fairly consistent in his recollection as set out in text messages, his letter, his response form and his evidence.  I find that following the argument Mr O’Meara said he had ‘had enough’ or words to that effect, that Mr Lunn asked him for the key and that Mr O’Meara then left.  I find that Mr Lunn did not intend to dismiss Mr O’Meara and that he thought Mr O’Meara would return to work when he had calmed down;

 

    1. I find that Mr O’Meara had not taken any paid leave in 2017;

 

    1. I find that Mr Lunn did not hand out pay slips but that he had them available in his van.  I am not persuaded that Mr O’Meara asked for pay slips.  There was evidence that pay slips had been prepared, and there would be no reason for Mr Lunn to refuse to hand them out if asked to do so.  The failure was sloppy, but not ill meaning.  Mr O’Meara was paid by BACS to his bank account and did not claim that he had been paid incorrectly.

 

d.    I find that administration is not a strong point for the Respondent and Mr Lunn was reminded during the hearing of the importance of keeping good documentary records and of ensuring compliance with all aspects of employment law. I hope he has taken that warning on board.

 

 

 

 

 

The Law

  1.   It is obvious that an employee can only claim protection from unfair dismissal if they have been dismissed.  If Mr O’Meara is correct this was a verbal dismissal.  If there is a dispute as to whether a form of words amount to a dismissal, those words should be given their common sense meaning. If the words used are clear, the intention of the speaker will rarely be relevant.  Where they are ambiguous, we should ask how they would have been understood by a reasonable listener in the circumstances (see Sothern v Franks Charlesly & Co [1981] IRLR 278).
  2. I find that when Mr Lunn requested the key for the lorry as Mr O’Meara was leaving this was not enough to amount to a dismissal, and that Mr Lunn did not otherwise use a form of words that could reasonably have been taken to amount to a dismissal in the circumstances even though he may well have sworn at Mr O’Meara.  I find that M O’Meara left his job.
  3. Turning to holiday pay, Mr Lunn accepted that there was an entitlement of 8 days.  Mr Lunn was unable to show that paid leave had been taken and I find that Mr O’Meara is entitled to the 8 days claimed. 
  4. On the subject of pay slips Article 51 of the Law is clear that “an employee must be given by his or her employer, at or before the time at which any payment of wages is made to the employee, a written itemised pay statement.  It is not enough that pay slips are available when asked for.  
  5. Having reached that conclusion Article 541(A) provides that l may further order the employer to pay compensation to the employee of an amount not exceeding 4 weeks’ pay.  I accept that the Respondent is a small employer and that pay slips were generated.  In future they must be given to employees whether they ask for them or not.
  6. Mr O’Meara seeks £2,160 in compensation for the failure to give him pay slips.  This would be the maximum compensation that I could award under Article 541(A). I have found however that payslips were generated and were available but not distributed.  There is no allegation that incorrect amounts were paid, or incorrect deductions taken (there is a dispute as to whether Mr O’Meara was paid late on occasion, but that does not impact on his pay slips and is not a matter I need to make a finding on today).
  7. It is important that employers give payslips to staff and there is no excuse for poor administration by employers.  In my view it would be fair to award the sum of £540 which amounts to one week’s pay

 

The Decision

  • The complaint of unfair dismissal is dismissed;
  • The claim for notice pay is dismissed;
  • I award the sum of £864 in holiday pay;
  • I declare that payslips were not given to the employee, and I award compensation of £540 in the particular circumstances of this case.

 

The total due to the Claimant, subject to any deductions required by law for tax or social security, is £1,404.

 

 

 

 

Advocate C R Davies, Deputy Chairman                                     Date: 4 May 2018

           


Page Last Updated: 04 May 2018