Moffett v DRD (Road Service) (Unlawful Deductions) [2002] NIIT 3851_01 (15 October 2002)
THE INDUSTRIAL TRIBUNALS
CASE REF: 3851/01
APPLICANT: Glen Moffett
RESPONDENT: DRD (Roads Service)
DECISION
The unanimous decision of the tribunal is that the respondent pay to the applicant the sum of £48.48 in respect of unauthorised deductions from his wages.
Appearances:
The applicant was represented by Mr E Miller, AEEU
The respondent was represented by Mr J Sullivan, Departmental Solicitors Office
- These reasons are given in extended form as the tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision.
- At the outset, an application to amend the originating application in so far as the date of the alleged unlawful deduction of wages is concerned, was made by Mr Miller. Mr Sullivan, on behalf of the respondent consented to the amendment. Consequently, the relevant date is week ending 17 October 2001.
- In or about 2001, the respondent carried out a review of payments made for standby duties. The conclusion of the review was that the existing motorway standby payment was "so far outside the range of payments made elsewhere in the United Kingdom that Roads Service has decided it will no longer be used". The existing system of standby payments was replaced with an Availability Allowance as from 17 September 2001.
- When the decision was made to introduce the new Availability Allowance, the respondent was aware that although the GMB agreed, the ATGWU were partially in agreement, and the AEEU were totally opposed. The applicant is a member of AEEU.
- The Chairman of the RSJIC wrote to TUS on 14 September 2001 confirming the situation, and notices were posted at depots to inform affected staff directly. Meetings were held to explain the introduction of the Availability Allowance, and it is accepted that the applicant attended one of these meetings.
- The AEEU wrote to the Chairman of the RSJIC on 31 October 2001 to the effect that there would be an application to an Industrial Tribunal under the Wages Order, should any AEEU members be paid for motorway standby duties at the new Availability Allowance rate, rather than the old system.
- The applicant carried out standby duty during week ending 17 October 2001, and was paid the Availability Allowance. The net loss was agreed as £48.48 being the difference between the two rates.
- Mr Sullivan, on behalf of the respondent conceded that since the rate of pay under the old system had been paid for almost thirty years, the rate had become a contractual term of the employment contract by custom and practice. Mr Miller also alleged that the failure to pay the old rate was a breach of the National Joint Industrial Council Agreement. Having heard submissions from Mr Miller, and heard evidence from Mr Johnston on behalf of the respondent, it is not clear to the tribunal that a breach of the National Agreement has occurred. However, in view of the respondent's concession regarding custom and practice, it is not necessary for the tribunal to reach a determinative conclusion regarding the Agreement, and it does not do so.
- The respondent argued that there was no obligation on the respondent to offer standby duty, nor was there any obligation on the applicant to do it. Such duties were additional to the normal contractual hours required to be worked by the applicant.
Therefore, it was submitted, the applicant volunteered to do standby duty, in the full knowledge that the respondent would only pay him the new Availability Allowance, rather than the old rate. Accordingly, he could not claim that an unlawful deduction of wages had occurred.
- Secondly, the respondent submitted that the tribunal should interpret the events in such a way that it should be satisfied that the respondent had given notice to the applicant that the old contract of employment which included the original standby payment was going to be terminated, and a new contract of employment, including the Availability Allowance was being offered as from 17 September.
- No evidence was given to the tribunal that the respondent had purported to give such notice. There was no suggestion that the respondent wished to do otherwise than retain the affected employees. The tribunal takes into account the decision of the House of Lords in Rigby v Ferodo Limited [1987] IRLR 516 and concludes that there was no evidence from which the tribunal could evince an intention to terminate the contract of service.
- The fact that the respondent was not obliged to offer standby work, and the applicant was not obliged to do it, is in our view not a relevant consideration. Standby work had always been carried out on this basis, but it was an accepted contractual term that if the respondent did offer the work, and if the applicant did volunteer to do it, he would be paid at the old rate.
- The tribunal is satisfied that the respondent was fully aware that the AEEU objected to the new system of payment on behalf of its members. We do not consider therefore, that the applicant impliedly accepted the new terms of payment by volunteering to do standby work after 17 September 2001.
- We conclude therefore, that the respondent unilaterally varied the applicant's contract, and that he is therefore entitled to the sum of £48.48 in respect of unauthorised deductions from his wages. The tribunal orders that the respondent do pay to the applicant the said amount.
- This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 15 October 2002, Belfast
Date decision recorded in register and issued to parties:
