Curran vs John Moran trading as Moran's
| Jurisdiction | Northern Ireland |
| Judgment Date | 26 August 2011 |
| Respondent | John Moran trading as Moran's |
| Docket Number | 00871/11IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 871/11
CLAIMANT: Catherine Curran
RESPONDENT: John Moran trading as Moran’s Retail Group
DECISION
The claimant has suffered an unlawful deduction of wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 and the respondent is ordered to pay the claimant the sum of £676.00 in respect of outstanding wages.
Constitution of Tribunal:
Chairman (sitting alone): Miss E McCaffrey
Appearances:
The claimant was represented by Ms Carla Rogers of the Law Centre.
The respondent was represented by Ms Deirdre Forbes, Human Resources Officer.
1. The Facts
1.1 The claimant gave evidence at the hearing but there was no evidence given on behalf of the respondent and none of the claimant’s evidence was disputed in any way. The claimant was employed by the respondent as a duty manager. Under her contract of employment she was to work a minimum of 27 hours per week but advised that she normally worked more than this. She commenced employment on 7 April 2009 and her employment ended on 19 February 2011.
1.2 In December 2010, the claimant indicated that she had a meeting with the respondent at which he indicated that her hours would probably reduce to two shifts per week, namely 18 hours. The claimant told him that she could not afford to work only two shifts. The explanation for this was that the respondent said his wife would work two days per week. The claimant explained to him that she could not afford to work two shifts and she then started to look for other employment. As it transpired the cut in hours did not happen immediately. The respondent told the claimant it would be after Christmas. In the New Year, the claimant asked Mrs Moran what the position was and was told that Mrs Moran would be coming in to do shifts so the claimant expected the cut shortly. In January 2011 she applied for another job and was offered that job on 11 February. She was asked what notice she needed to work. The claimant thought it was only one week, but then checked her contract, according to which she was obliged to work a month’s notice. The relevant part of the claimant’s contract was Clause 17(A), which provided that an employee was required to give one month’s notice after one month’s continuous service. The clause also provided:-
“Where an employee, without permission, fails to work out his/her notice period (whether the company or employee gives notice) he/she will forfeit a sum equal to wages for the unworked period, from any arrears of wages and/or holiday pay which had not been paid. This applies regardless of the fact that these monies have already been earned.”
1.3 In this case the respondent produced to the Tribunal a copy of the claimant’s written terms and conditions of employment which had been signed by her and which include a clause at the end reading as follows:-
“I have read and understood the sections above on holidays and notice and the supply of uniforms. I hereby authorise the employer to deduct from my wages a sum to offset any excess holiday pay received, unpaid balance owed on uniforms and also up to one week’s wages if I terminate my contract without giving proper notice.
I have read and understood the sections above on deductions and liability and hereby authorise the employer to deduct from my wages a sum not exceeding 10% per week in respect of any loss or damage from which I am held to be accountable. I further understand that the 10% limit will not apply to my final wages, if the sum outstanding is greater than 10%.”
The claimant agreed she had signed the contract.
1.4 The claimant gave notice by email at 10:30pm on the evening of 11 February. The email was addressed to the respondent and Donna Moran and was also copied to Deirdre Forbes and Paul Moran. The relevant part of the email reads:-
“Hello people,
Maybe this will come as no shock to you, but I wish to hand in my resignation.
If you cannot release me from my Contract immediately my last shift will be on Saturday 19th February 2011. I do understand that it is only eight days away and I haven’t given one month’s notice, but with the nature of my new job I need to start on Monday 21st February 2011. My reason for leaving are the erratic hours, also that John you told me I would probably go down to two shifts per week. As I said at that meeting, two shifts are not enough, and I’m still not convinced that the reason I didn’t get the night shifts are because I didn’t drive. This was never told to me when I was offered full time Duty Manager, in fact I feel as if I’m being pushed out.
I also understand that you can maybe keep my last week’s wages off me for not serving the full notice, but I am willing to forego that if I have to.
I wish you all the best and hope you do the same for me.
My next shift is Sunday morning, I will still do my job to the best of my abilities until I leave.
Cathy”.
1.5 On 15 February the claimant received an email from John Moran, expressing his surprise that she had decided to leave and suggesting that she would wish to reconsider. The claimant however decided to leave employment. On 23 February she received a letter from Deirdre Forbes, setting out the amount to which she was entitled, namely her gross pay up to and including 19 February 2011 of £416.25, holiday pay of £198.75 and a tax rebate of £61.00. Against this, the letter set out the purported deduction of the claimant’s forfeited notice pay of £795.00, leaving an amount due to Moran’s Retail Group of £119.00.
1.6 On 25 February the claimant sent a letter to Deirdre Forbes, requesting her outstanding wages plus holiday pay and alleging this was an unlawful deduction of wages. She added in that letter,
“Please send all monies owed immediately. If not paid within 28 days I will have no alternative but to progress to the Industrial Tribunal on the grounds of unlawful deduction of wages.”
1.7 The claimant was invited to a grievance meeting by the respondent but exercised her right to use the modified grievance procedure by letter of 18 March 2011. She indicated that unless payment was received in full that she would issue proceedings. By letter of 24 March 2011 from Deirdre Forbes to the claimant, the respondent’s response to the grievance was set out. The respondent indicated that the re-calculation from the claimant’s final wages was not a penalty but was a genuine pre-estimate of loss to the company. This was indicated under four headings namely:-
- Loss of sales within the claimant’s departments of responsibility due to shortage of stock and non-ordering caused by insufficient time for a proper handover and delegation of duties;
- Additional staffing costs affecting all three sites caused by putting staff on emergency cover;
- Travel expenses incurred pulling duty managers from other stores in emergency cover; and
- Emergency training costs.
1.8 In her evidence to the Tribunal, the claimant disagreed with these allegations by the respondent which were also set out in the response filed in the Tribunal Office. On the question of increased wastage due to lack of managerial control, the claimant indicated that the only meat and poultry sold in the store were chicken fillets. She indicated that she had dealt with frozen food, but the Day Manager had taken it over before she left as she was only working two day and two nights per week. Regarding additional staffing costs, she pointed out that there were three managers and the owner available to cover shifts. She did not believe that there was any additional cost to the owner, as any additional shifts she had covered had been paid at the basic rate, so she did not believe that there was any additional costs to the employer from that point of view. As far as travel expenses were concerned, she pointed out that there were enough managers on the Londonderry site to cover the shifts. She also pointed out that B McAdams, one of the managers, lived less than three miles from the site and so she could not understand why he was apparently paid mileage for seven shifts at 64 miles.
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