Johnston vs Opulence Beauty Spa Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 28 August 2019 |
| Docket Number | 01860/19IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Opulence Beauty Spa Limited |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1860/19
CLAIMANT: Caitlyn Johnston
RESPONDENT: Opulence Beauty Spa Limited
DECISION
The decision of the tribunal is that the claimant is entitled to an award of £357.75 in respect of unauthorised deduction of wages and breach of contract.
Constitution of Tribunal:
Employment Judge (Sitting alone): Employment Judge Sheehan
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Cheryl Haddock, a director and main shareholder of the respondent company.
REASONS
- The claim received in the Office of Industrial Tribunal and Fair Employment Tribunal (OITFET) on 12 January 2019, included claims against the respondent, concerning unlawful deduction of wages, holiday pay, failure to provide notice pay and breach of contract. The claimant’s employment commenced on 31 August 2018 to its termination in November 2018
- The respondent’s response filed on 7 February 2019 accepted the claimant was an employee and that all monies due to the claimant had not been furnished in the final salary payment made to the claimant on foot of her resignation on 8 November 2018. The respondent claimed it was entitled under the claimant’s contractual terms to deduct from the claimant’s wages reimbursement for training in the sum of £313.75 but had deducted the sum of £100.75
- The Case Management Record of Proceedings held on 15 March 2019 show agreement between the parties that the disputed wages concerned £221.00 in respect of notice pay, £26.00 for accrued holiday pay and £100.75 in respect of the claimant’s first week’s pay. The respondent disputed that the claimant was entitled to notice pay and alleged a contractual right to deduct training costs. The claimant’s claim for £10.00 in respect of product owned by the claimant and used in the respondent’s salon had been rejected by the respondent. This amounted to a total claim for £357.75
- The tribunal was required to determine whether the claimant had resigned with or without notice, whether the respondent was in breach of contract for rejecting reimbursement of £10.00 for product used at the salon and whether the deduction of wages of £100.75 had been made lawfully by the respondent. It was clear if the claimant resigned with notice to the respondent then the sum of £26.00 would be due to the claimant for outstanding holiday entitlement at the end of the claimant’s employment. The respondent advised the tribunal that no check had been made with the revenue commissioners regarding the company’s entitlement to make the deduction in respect of training costs. In light of the Employment Appeal Tribunal decision in Commissioners for Revenue and Customs v Lorne Stewart PLC [2015] IRLR 187 the lawfulness of the contractual deduction in respect of alleged training costs became an additional issue to be determined by the tribunal, where such deduction could reduce the claimant’s hourly wage to below the minimum wage.
SOURCES OF EVIDENCE
- The tribunal heard oral evidence from the claimant, Cheryl Haddock, a director and shareholder of the respondent company as well as Cody McMillan, an employee of the respondent company. The tribunal received two bundles of relevant documents, identified as C1 (66 pages) and R1 (21 pages) from the claimant and respondent. The evidence of Cheryl Haddock at times was contradictory to the response filed on behalf of the company. It was also in conflict with emails exchanged with the claimant. One example was the response filed which records at section 4-1 that “the claimant left employment on 8 November on the understanding she had no intention of returning”. This is contradicted by the email sent to the claimant on 8 November from the witness advising the claimant that the respondent “accepted the claimant’s resignation but didn’t require her to work her notice.” A further example is an email on 12 November 2018, sent by the witness to the claimant, which indicated the respondent had not been aware the claimant wouldn’t be in work on Friday and Saturday 9 and 10 November 2018.
- The tribunal found Cheryl Haddock unconvincing concerning records maintained by the company and in the history of her interactions with the claimant. The tribunal did not find Cody McMillan a credible witness in relation to alleged training provided by the respondent. Her evidence, concerning an alleged “burning” suffered by her while undergoing a waxing treatment by the claimant, was undermined by the lack of a health and safety record or accident at work report by the respondent. Equally Cody McMillan’s claim that the claimant was laughing with her at the end of the meeting on 8 November 2018 did not correlate with the evidence of Cheryl Haddock and the claimant as to the level of upset displayed by the claimant. In consequence of the oral and documentary evidence adduced at hearing, the tribunal made the following findings of fact, upon the balance of probabilities:
THE FACTS
- The claimant was employed as a “fully trained” beauty therapist for 20 hours per week from 31 August 2018. Two practical assessment sessions as well as an interview with the respondent formed part of the recruitment and selection process. There was a nine months probationary period. A Written Statement of Main Terms and Conditions of Employment was provided to the claimant by the respondent.
- No contractual rate of pay was inserted on the statement of main terms and conditions but a rate of £6.50 an hour was agreed. No pension provision was mentioned on the written statement. Clause 6 provided that “the first week was not remunerated until such time as the employment finishes”. The claimant worked 15.5 hours in her first week which equated to £100.75.
- Clause 14 of the written statement provides:
“Any training received through Opulence Beauty Spa or any off-site training provided and paid for by the employer must be repaid as set out below. The said costs will be deducted from your final salary due on termination of your employment. If the employee leaves within a period of 12 months from the date of the provision of the training then the full amount of the costs of the training shall be repaid”.
- No off-site training was provided by the employer. There was no definition of training. No record of training was maintained by the respondent. The claimant was never asked to agree nor was she notified of any costs being accrued in respect of training received through the respondent.
- The training record which was produced at hearing was a post resignation record created by the respondent in December 2018. It included dates, details of treatment and staff and product costs of alleged “practice” sessions conducted by the claimant. The respondent produced no original records to support the alleged supervision by staff, costs incurred or appointment records to indicate a client was booked as a “free” treatment. Only three of the alleged sessions were for non-paying clients. Those treatments occurred on the 1, 12 and 15 September 2018 and concerned treatments performed on Cody or Cheryl.
- The claimant was advised in late October 2018 that she was doing well but practice was required in treatments such as acrylic nails.
- On 28 October 2018, a non-working day for the claimant, the respondent contacted the claimant to remove work related photographs from the claimant’s Facebook page. The claimant did so without delay. Cheryl Haddock on the same date and message advised the claimant she required her to attend a meeting on Tuesday or Wednesday of the following week. The parties agreed to meet the afternoon of 8 November 2018.
- Appendix 2 of the statement of main terms and conditions of employment addressed the respondent’s disciplinary rules and procedure. As a general principal it stated “No disciplinary actions shall be taken until there has been a full investigation into any alleged incident. At each stage of the procedure you shall have the right to a fair hearing with the opportunity to state your case and to be accompanied by a fellow employee, if desired”.
- The procedure indicated that in the event of a breach of the rules an employee would be interviewed at all stages by the employer and given the opportunity to state their case. The disciplinary rules ranged from minor to gross misconduct. Minor included performance of duties below an acceptable standard or ignoring safety or hygiene rules. Neglect causing damage or loss to client’s or the respondent’s property...
To continue reading
Request your trial