Saunders v J M & K S Limited t/a Salon 7 Hair – HELD
This was a claim for unpaid wages. In essence, it was a dispute about the terms of a contract of employment. The applicant’s terms of employment included a weekly amount, 10% commission on products sold and a share of certain profits (‘profit share’). Initially, the profit share was 40%, a figure that the applicant had been disappointed with but had not robustly challenged.
The dispute concerned a change to the contract that took place in 2014 when the applicant was returning from maternity leave. According to the applicant the profit share increased to 50% in January 2014 and she was given a contract to sign to that effect. She signed it but did not keep a copy of it.
The respondent denied that there was any change to the profit share and put in a counter claim for reimbursement of training costs that had not previously been deducted from the applicant. Unfortunately for the respondent, they had lost all of the employment contracts and, therefore, had rely on verbal evidence.
The Tribunal preferred the evidence of the applicant. They found the respondent was mistaken in their recollection of events and they found that the revised contract was given to (and signed by) the applicant in January 2014 and that it did include a profit share of 50%. The Tribunal was concerned at the lack of proper document keeping by the employer (even a small employer has to keep accurate records).
The Tribunal also noted the following in their judgment: “We would encourage the respondent in this case to ensure that they have good, clear procedures in place in relation to documentation. It is important that staff contracts are handled promptly, carefully and with appropriate regard for confidentiality. Employees must be given copies of the terms and conditions of employment that they have entered in to.”
The applicant was awarded £1,237.19 in unpaid wages.
The respondent was awarded £103.16 in respect of training costs that were recoverable.
Mr Balycykj v Legacy Construction – NOT HELD
This was a claim for unfair and wrongful dismissal. However, before the Tribunal could continue, they had to decide on the following preliminary points:
- whether the applicant was an Employee under Article 1A(1) of the Employment (Jersey) Law 2003 (“Law”) or whether he was engaged under a “zero hours” contract; and,
- if the applicant was an Employee under Article 1A(1) of the Law, whether he was dismissed.
The Tribunal heard evidence from the applicant and from Mr Frain regarding the nature of the applicant’s contract. The Tribunal saw a written contract, dated 1 March 2013, which was signed by the applicant on 4 April 2013. The applicant gave evidence that he worked under a “zero hours” contract because his contract included a reference to “zero hours”. Somewhat unusually, Mr Frain for the respondent submitted in his evidence that, although the contract stated itself to be a “zero hours” contract, in practice he believed that there was an employment relationship; he had an expectation that the applicant would come to work on a daily basis. In view of the evidence before it, the Tribunal concluded that this was not a genuine “zero hours” contract and, therefore, the claim could proceed.
The Tribunal next considered whether the applicant had been dismissed. The applicant claimed that his contract was terminated by Mr Frain during a telephone conversation on 30 June 2014. Mr Frain denied dismissing the applicant and gave evidence that the applicant went “AWOL” and failed to turn up to work. The applicant told the Tribunal that, during the telephone conversation, Mr Frain told him to “f*** off”. The applicant gave evidence that he believed that the words used amounted to an expressed dismissal. He, therefore, did not return to work the following day and he did not contact the respondent for approximately one week because he believed that he had been dismissed. When the applicant did eventually contact the respondent to request that he return to work, the respondent told the applicant that other arrangements had been made to cover the applicant’s absence and there was no longer any work available for him.
The Tribunal was satisfied that, in the context of this particular workplace and having considered the words used, not in isolation but against the background and the character of the site, these words did not amount to a dismissal but an expression of Mr Frain’s acute frustration at the applicant’s behavior and his failure to take responsibility for his own actions.
