Mr D White v Forest Master Ltd: 2500220/2023
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 2023 |
| Date | 27 November 2023 |
| Citation | 2500220/2023 |
| Court | Employment Tribunal |
| Published date | 12 December 2023 |
| Subject Matter | Breach of Contract |
Case Number: 2500220/2023
10.5 Reserved judgment with reasons – rule 61 March 2017
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EMPLOYMENT TRIBUNALS
Claimant: Mr D White
Respondent: Forest Master Limited
Heard at: Newcastle On: 1 and 2 August 2023
Before: Employment Judge Loy
Representation
Claimant: Miss Hicken of counsel
Respondent: Mr Johnson, Managing Director
RESERVED JUDGMENT
The Judgment of the Employment Tribunal is that:
1. The claimant’s claim of unfair dismissal is well-founded and succeeds.
2. The claimant’s claim for unpaid notice pay is well-founded and succeeds.
3. The claim for unlawful deduction from wages is well-founded and succeeds.
REASONS
Introduction
1. By a claim presented on 9 February 2023, the claimant complains of constructive
unfair dismissal, unlawful deduction from wages and a failure to pay notice pay.
2. The respondent denied all liability to the claimant.
Procedure and evidence
3. The Tribunal had before it an agreed bundle of documents comprising 251 pages.
References in this judgment to page numbers are references to page numbers in the
bundle.
4. The Tribunal heard from the following witnesses:
Case Number: 2500220/2023
10.5 Reserved judgment with reasons – rule 61 March 2017
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(a) The claimant, who produced a written statement of 20 pages numbered 1-
20 and who was cross-examined by Mr Johnson;
(b) Mr Peter Johnson, the respondent’s Managing Director, who produced a
written statement of 8 pages numbered 1-8 and who was cross-examined
by Miss Hicken. Mr Johnson also represented the respondent.
5. References in this judgement to pages in the witness statements are expressly
referred to as such to avoid confusion with reference to the pages in the bundle of
documents.
6. Standard case management orders were made on 16 February 2023.
Issues to be determined
7. No formal list of issues was ordered or produced by the parties.
8. Given the claims presented, the issues to be determined by the Tribunal are as
follows:
9. Constructive unfair dismissal
Was the claimant dismissed or did he resign?
9.1. Did the respondent, without reasonable or proper cause, behave in a way that
was calculated or likely to destroy or seriously damage the relationship of
confidence and trust?
9.2. If the respondent did so conduct itself, did it repudiate the claimant’s contract of
employment such that the claimant was entitled to terminate the contract without
notice.
9.3. Was the repudiatory breach at least a substantial part of the claimant’s reason
for resigning?
9.4. Did the claimant affirm the contract before resigning?
If the claimant was dismissed:
9.5. What was the reason or principal reason for dismissal – that is, what was the
reason for the breach of contract?
9.6. Was it a potentially fair reason? The respondent relies on conduct.
9.7. Did the respondent act reasonably in all the circumstances in treating it as a
sufficient reason to dismiss the claimant?
Case Number: 2500220/2023
10.5 Reserved judgment with reasons – rule 61 March 2017
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10. Wrongful dismissal / Notice pay
What was the claimant’s notice period?
10.1. Was the claimant paid for that notice period?
10.2. If not, did the claimant do something so serious that the respondent was
entitled to dismiss without notice?
11. Unauthorised deductions
11.1. Did the respondent make unauthorised deductions in the form of unpaid
outstanding sales commission from the claimant’s wages and, if so, how
much was deducted?
Factual findings
12. The respondent is a small business with around 16 employees. The company
produces electric, petrol and manual log splitters, wood chippers and related
accessories. The business is family owned by Mr Andrew and Mrs Helen Martin.
The claimant commenced employment with the respondent on 3 February 2020. He
was employed as a Sales Executive/Administrator. The claimant’s role was to
manage and develop the respondent’s online business on platforms such as
Amazon, eBay and ManoMano. The claimant resigned from his employment with the
company on 31 October 2022 with immediate effect.
13. The respondent did not dispute the evidence in the claimant’s witness statement that
prior to Mr Johnson joining the company the claimant had a clean disciplinary record
and had enjoyed a good working relationship with Mr Martin. The claimant received
salary increases in March 2021 and October 2021 based on increased sales on the
company’s eBay accounts and other online platforms. The claimant salary increased
over this period from £18,000 per annum to £28,000 per annum.
14. The claimant’s uncontested evidence was that he reached an undocumented verbal
agreement with Mr Martin in October 2021 to the effect that his performance based
salary increases would continue. The claimant understood that his earnings would
increase as a percentage of gross increased online platform sales subject to an
overall cap of £50,000 per annum. The claimant was expecting a salary increase
along these lines should the financial year ending September 2022 confirm an uplift
in online sales.
15. On 21 March 2022, Mr Peter Johnson joined the business as its managing director.
Mr Johnson was employed so that the owners were able to step back and take a
less active role in the management of the company. Mr Johnson is a retired Police
Inspector from Northumbria Police. It was also not in dispute that the claimant’s
relationship with Mr Johnson was difficult and fractious. The claimant’s claim that he
was constructively dismissed by the respondent is based on the treatment that he
says he received at the hands of Mr Johnson after the latter’s appointment as
managing director.
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