IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

SIMON LIVINGSTONE

CLAIMANT

 

AND

 

 

JOHN WATERMAN T/A BLUE WAVE CONSTRUCTION

RESPONDENT

 


 

TRIBUNAL JUDGMENT


 

 

Reference:                 [2018] TRE 168

 

Hearing Date:                14 March 2019  

 

Before:                           Mrs H G Griffin, Chairman

 

Appearance:

 

For the Claimant:           In person

For the Respondent:     In person, supported by Ms J Brimble

                                   

 

THE DECISION

 

The Claimant’s claims of wrongful dismissal and failure to provide itemised pay statements succeed.

 

The Claimant’s claim that the Respondent failed to provide a written statement of terms is rejected.

 

 

THE REASONS

 

The Claimant’s case as formulated in his claim form

 

1.       By a claim form presented on 31 October 2018, the Claimant brought the following complaints:

a)       that, in breach of contract, the Respondent wrongfully dismissed the Claimant by failing to give him contractual notice to terminate his employment (“Notice Pay Claim”);

b)      that, contrary to Article 51 of the Employment Law, the Respondent failed to provide itemised pay statements to the Claimant (“Pay Statement Claim”);

c)       that, contrary to Article 3 of the Employment Law, the Respondent failed to provide a written statement of terms to the claimant (“Statement of Terms Claim”); and

d)      that, contrary to Articles 13 and 14 of the Employment (Jersey) Law 2003 (“Employment Law”), the Respondent failed to pay to the Claimant accrued but untaken holiday pay (“Holiday Pay Claim”)

 (together “Claims”).

 

2.       The Claimant withdrew the Holiday Pay Claim at the final hearing, acknowledging that his hourly rate of pay included 4% rolled-up holiday pay. In accordance with the provisions of Article 33 of the Employment and Discrimination Tribunal (Procedure) Order 2016, I formally record this withdrawal and confirm that the Claimant may not commence a further claim raising the same or substantially the same complaint against the Respondent.

 

3.       The Respondent defended the Claims, although it acknowledged that it did not provide itemised pay statements during the latter part of the Claimant’s employment.

 

4.       The parties agreed at the start of the hearing that the Claimant's gross weekly rate of pay was £450 per week and not (as asserted in the claim form) £600.

 

Documents and evidence

Witness evidence

5.       I received witness statements and evidence under oath from each of the following witnesses:

 

a)       Mr Livingston, the Claimant;

b)      John Waterman, the Respondent

 

Hearing File

6.       The Respondent provided a joint file of documents in accordance with the Tribunal’s Orders.

 

Submissions

7.       The Claimant provided written closing submissions.  Despite being given the opportunity to do so, the Respondent did not provide submissions.

 

Evidence

8.       I considered all of the evidence (both written and oral) provided by each of the witnesses and made the findings of facts as set out below. I only summarise in this judgment the facts and evidence which were relevant to the issues as agreed by the parties at the CMM.  Where I have had to resolve factual disputes, I have done so on the balance of probabilities on the basis of my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence, including the documentary evidence.

 

9.       The Claimant worked for the Respondent as a labourer between 1 November 2017 and 16 October 2018.

 

10.   On 16 October 2018, the Respondent telephoned the Claimant to advise him that his employment was to be terminated (“Dismissal Conversation”).  The Claimant claimed that the Respondent dismissed him summarily and did not allow him to work his one week notice period.

 

11.   The Respondent gave evidence that:

 

a)       during the Dismissal Conversation, he gave the Claimant notice to terminate his employment. The Respondent asserted that he did not summarily dismiss the Claimant and gave evidence that he expected the Claimant to attend work for the next week;

b)      the Respondent would not have intentionally put himself in a position where he was ‘short staffed’ (as was the case on 17 October 2018, when the Claimant did not attend work); and

c)       it was the Claimant who left the site early on 16 October 2018 (to pick up his sick child from school) and chose not to attend work the following day.

 

12.   It was the Respondent’s evidence that he used the following words during the Dismissal Conversation:

 

“I'm going to have to ask you to finish from today."

 

13.   The Claimant left the site early on 16 October 2018 to collect his sick child from school and he did not return to work the following day.  The Claimant gave evidence that he did not return to work on 17 October 2018 because he understood that the words used by the Respondent meant that his employment had been terminated from the end of 16 October 2018. 

 

14.   During the course of 17 October 2018, the parties engaged in amicable text message exchanges and arranged for the Claimant to visit the Respondent at his house.  In one text from the Respondent to the Claimant, the Respondent stated:

 

“yes come down I’m here.  You can hand in any bluewave [sic] advertised clothing etc.”

 

15.   The Respondent explained in his evidence that he requested the return of the Claimant’s work clothing, not because he had summarily dismissed the Claimant, but because the Claimant had not come to work on 17 October 2018.  He therefore assumed that the Claimant had walked out.

 

16.   Having considered all of the above evidence, I noted that:

 

a)       the words used by the Respondent during the Dismissal Conversation were unambiguous;

b)      the instruction that the Claimant return his clothes to the Respondent showed that the Respondent did not expect the Claimant to return to work after the Dismissal Conversation; and

c)       at no point in any of the text message exchanges did the Respondent query why the Claimant had not attended work on 17 October 2018 or show any frustration that the Claimant had not turned up for work.

 

17.   I therefore concluded that it was reasonable for the Claimant to conclude that his employment had been terminated summarily on 16 October 2018 and that he was no longer employed by the Respondent.

 

18.   Consequently, in breach of contract, the Respondent failed to give the Claimant notice to terminate his employment.

 

19.   The Respondent shall pay to the Claimant the sum of £450 by way of damages for wrongful dismissal.

 

Pay Statement Claim

20.    The Claimant gave evidence that throughout his employment, the Respondent failed to provide itemised pay statements.

 

21.   The Respondent accepted that from early summer 2018, the Respondent stopped providing pay statements to the Claimant. However he gave evidence that at the beginning of the Claimant’s employment, he did provide such pay statements to the Claimant. The Respondent provided copies of all of the Claimant's payslips in the file of documents for the hearing.

 

22.   The Respondent gave evidence that, during the early summer of 2018, he noticed that the Claimant  (and other employees) was not taking his wage slips home with him and that he was leaving them lying around in the envelopes at the building site or in the van. Therefore, during a break-time chat, the Respondent asked the employees whether they wanted to continue to receive itemised pay statements.  The Respondent gave evidence that the employees said that they did not want the pay statements.  He also gave evidence that the Claimant told him that he did not read the pay statements and that they were not "worth the paper they [were] written on". According to the Respondent, the Claimant told him that he put them "straight in the bin".

 

23.   The Claimant denied ever being asked whether he wanted to continue to receive pay statements (because he asserted that he never received them in the first place).

 

24.   Having considered the above evidence, I concluded on the balance of probabilities that payslips were provided during the early days of the Claimant's employment. It was unclear whether or not the Claimant was involved in the group discussion about the issuing of pay statements, but the result was the same; the Respondent stopped providing pay statements to the Claimant in early summer 2018.

 

25.   The Employment Law is clear that employers “must” provide itemised pay statements to their employees whenever wages are paid.  The Employment Law provides no scope for employers to put the onus on employees to request their pay statements.  Providing only a summary of payments at the end of the financial year is not sufficient to comply with the provisions of the Employment Law.  The Respondent was therefore in breach of the Employment Law when it failed to provide regular itemised pay statements to the Claimant, even with the Claimant’s authorisation.

 

26.   In exercising my discretion in awarding compensation, I took into account the relatively short period of five months during which the Respondent failed to provide itemized pay statements.  I also noted that, notwithstanding that the Respondent did not provide such statements strictly in accordance with the Employment Law, this was not a case where pay statements did not exist.  The evidence showed that the Respondent was a conscientious employer who did prepare pay statements whenever the Claimant was paid.  His error was that he failed to hand these to the Claimant. 

 

27.   In light of this, I award the Claimant the sum of £172.80 (being two days’ pay, less the 4% rolled-up holiday pay) by way of compensation for the Respondent’s failure to provide itemised pay statements.

 

28.   The Respondent shall pay to the Claimant the sum of £172.80 by way of compensation for failure to provide itemised pay statements.

 

 

Statement of Terms Claim

29.    The Claimant claimed that the Respondent failed to provide a statement of terms in accordance with the Employment Law.

 

30.   The Respondent denied this claim and provided a copy of the Claimant's contract of employment (“Contract”) which was signed and dated by both parties on 1 January 2018.

 

31.   The Respondent gave evidence that (along with other employees) the Claimant signed two copies of the Contract, returning one signed copy to the Respondent and keeping the second signed copy for his own records.

 

32.   The Claimant acknowledged that he signed the Contract, but denied that he had ever received a copy.  He denied losing the Contract.

 

33.   Having considered all the evidence, I concluded on the balance of probabilities that the Respondent did provide a copy of the signed Contract to the Claimant at the beginning of January 2018 and that the Claimant misplaced it.

 

34.   The Statement of Terms Claim is therefore rejected.

 

Summary of Award

 

Damages for wrongful dismissal (notice pay)

£450.00

Compensation for failure to provide itemised pay statements

£172.80

TOTAL AWARD

£622.80

 

 

 

Mrs H G Griffin, Chairman                                                    Date:           2 April 2019

 

           


Page Last Updated: 02 Apr 2019