IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
JOHN WATERMAN T/A BLUE WAVE CONSTRUCTION
Reference:  TRE 168
Hearing Date: 14
H G Griffin, Chairman
For the Claimant: In
For the Respondent: In
person, supported by Ms J Brimble
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 Claimant’s case as formulated in his
By a claim form presented on 31 October 2018, the
Claimant brought the following complaints:
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”);
that, contrary to Article 51 of the Employment Law,
the Respondent failed to provide itemised pay statements to the Claimant
(“Pay Statement Claim”);
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
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
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.
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.
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
5. I received
witness statements and evidence under oath from each of the following
a) Mr Livingston,
b) John Waterman,
6. The Respondent
provided a joint file of documents in accordance with the Tribunal’s Orders.
7. The Claimant
provided written closing submissions.
Despite being given the opportunity to do so, the Respondent did not
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
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
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
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
“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.
considered all of the above evidence, I noted that:
a) the words used
by the Respondent during the Dismissal Conversation were unambiguous;
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.
in breach of contract, the Respondent failed to give the Claimant notice to
terminate his employment.
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
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).
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
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
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.
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
for wrongful dismissal (notice pay)
for failure to provide itemised pay statements
Mrs H G Griffin, Chairman