Argue v Keenan (t/a Rocktown Quarry)  (Unfair Dismissal/Unlawful Deduction)  (18 December 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	1248/02

APPLICANT:		Owen Argue

RESPONDENT:		Patrick Keenan, T/A Rocktown Quarry

DECISION

The unanimous decision of the Tribunal is that the applicant was not unfairly dismissed, contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996.  Accordingly the applicant’s complaint for unfair dismissal is dismissed.
The tribunal declares that the respondent made unauthorised deductions from the wages of the applicant, contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 and orders, in accordance with Article 56(a) of the Employment Rights (Northern Ireland) Order 1996, the respondent to pay £192.00 to the applicant.
The correct title of the respondent is that detailed above and the title of the proceedings is amended accordingly.
Appearances:
The applicant was unrepresented and appeared on his own behalf.
There was no representation on behalf of the respondent at hearing.

SUMMARY REASONS

1.	The applicant alleged that the respondent had treated him in such a manner that he was entitled to leave his employment on 19 April 2002.  He further alleged that the respondent failed to pay him any wages due and owing for work done in accordance with his contract of employment prior to it terminating in April 2002 and that he unlawfully withheld payment from the applicant in respect of holiday entitlement accrued at that date.

2.	The tribunal heard evidence from the applicant and a Mr Gareth Betchur.

3.	The respondent in his Notice of Appearance denied that the applicant had been dismissed but did not address the question of whether any wages were owed to the applicant.  However it was admitted on behalf of the respondent in the Notice of Appearance that the rates of pay and dates of employment contained in the originating complaint were correct.  On that basis the tribunal calculated that the applicant’s daily wages were £48.00 gross and £40.00 nett.

4.	The applicant’s working week for wages ran from a Wednesday to a Wednesday.  On commencement of his employment he had worked a ‘lay in’’ week.  Accordingly on leaving his employment the applicant had worked for a week and two days for which he had received no payment.

5.	The tribunal having heard the evidence and considering all the documentation before it found that the applicant was subjected to foul language in the workplace by a Mr Dermot Keenan who at the time was acting as his line manager in the absence of Mr Adrian Martin.  Mr D Keenan was made aware by the applicant that he found this language offensive yet Mr D Keenan indicated he was not prepared to change his manner of address to the applicant.

6.	The respondent provided the applicant with a copy of his contract of employment in November 2001.  The applicant’s holiday entitlement was governed by Clauses 14 to 16.  Under those clauses the applicant accrued five days’ holiday entitlement.  In Easter 2002 he availed of three days’ holiday leave.  Accordingly there was still due to him at the time of the termination of his employment payment for two accrued days.

7.	Clause 22 set out notice entitlement both for employees and the respondent.  The applicant was required in normal circumstances to give one-week notice of his intention to terminate his employment.

8.	Appendix 2 set out as an example of major misconduct ‘the use of foul or offensive language or any form of harassment’.  Under the procedure set out in Appendix 2, Mr Adrian Martin was one of the named members of management nominated to deal with such acts of major misconduct.  The applicant reported this use of abusive language to Adrian Martin on 18 April 2002.  Mr Martin indicated that he would attempt to address the issue.  On the next day, 19 April 2002, Mr Dermot Keenan approached the applicant and a work colleague, Mr Gareth Betchur, and against used abusive language to them both.  The applicant left his employment without speaking to any other member of the management team, including Mr Martin.

9.	The tribunal considered Articles 126 and 127 of the Employment Rights (Northern Ireland) Order 1996.  The tribunal considered the facts found and in particular the short period between the applicant terminating his employment and from when he first reported this conduct to his employer.  The tribunal concluded that the applicant had not been entitled on 19 April 2001 to terminate his employment without notice – Western Excavating (ECC) Limited  v  Sharp [1978] IRLR 27 CA.

10.	Accordingly the applicant under Clause 22 of his contract of employment should have given at least one week’s notice to the respondent of his intention to terminate his employment.  The applicant’s failure to do so meant the tribunal considered Clause 22 which stated that a failure to give due notice would mean an employee ‘will forfeit a sum equivalent to wages for the unworked period, from any arrears of wages and/or holiday pay which have not been paid’.  The tribunal considered Article 45 of the Employment Rights (Northern Ireland) Order 1996.  The tribunal concluded that the respondent’s withholding of one week’s pay was lawful as the respondent’s action satisfied the requirements of Article 45(1) and (2).  However the respondent was not entitled to withhold payment for the additional two days work for which payment was outstanding on 19 April 2002 and for accrued holidays. Delaney  v  Staples (T/A De Montfort Recruitment) [1991] IRLR 112 CA is authority that ‘deductions’ as referred to in Article 45 of the Employment Rights (Northern Ireland) Order 1996 includes a failure or refusal to pay monies.  Accordingly, the tribunal declares that the respondent made unnotified deductions from the pay of the applicant, contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 in the sum of £192.00.

11.	Prescribed period from 22 April 2002 to 25 April 2002 

Prescribed element

£192.00

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

This is a relevant decision for the purposes of the Employment Protection (Recoupment of Jobseekers’ Allowance and Income Support) Regulations (Northern Ireland) 1996.

Chairman:

Date and place of hearing:

Date decision recorded in register and issued to parties: