Mr D Mockevicius v Cloudshift Group Ltd: 2304024/2018
JUDGMENT
[1]The respondent has made unlawful deductions from the claimant’s wages totalling £539.73, contrary to Section 13 of Employment Rights Act 1996, and pursuant to Section 24 the respondent is ordered to pay that sum to the claimant.[2]Pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales Order, the respondent is ordered to pay to the claimant the sum of £2330.00.[3]These sums are sums net of tax and national insurance.[4]The claimant’s claim of unfair dismissal is not well-founded, the Tribunal having no jurisdiction to consider the claim.REASONS
[1]I am satisfied having heard oral evidence from the claimant that the claimant was dismissed by the respondent by letter received by him on the 19th of September 2018. He had been employed by the respondent as a salesforce consultant from the 11th of June 2018 up to and including the 18th of September 2018.[2]Clause 11 of his contract of employment headed notice of termination provided that ““the probation period will be three months during which the notice period will be one week. Following successful completion of your probation the period of notice to be given in writing by Cloudshift or you to terminate your employment (except in cases where summary dismissal is justified) will be one month.“ There is no provision within the contract for the extension of the Probationary period. I am satisfied that the claimant was not notified that he had failed his probationary period during the three months. Accordingly, I am satisfied that the claimant was employed for a period of three months plus one week and was accordingly entitled to one months notice or pay in lieu.[3]At the end of September the claimant was paid his wages due up to the 18th of September 2018, and only one weeks notice pay, both calculated at the claimant’s initial salary rate of £45000 per annum, after deduction of tax and NI. Clause 1 of the contract provided a basic salary of £45,000 per annum in 12 equal payments on the last working day of each calendar month. “After passing the salesforce app builder and sales/service consultant certification is your salary will then rise to £47,500.“ The claimant produced to the tribunal certificates indicating that he passed exams on the 22nd of June, the 5th of August and the 27th of August 2018. I am accordingly satisfied that as from the 27th of August 2018 the claimant was entitled to a salary net of tax and national insurance at the higher rate of £47,500. The claimant has been underpaid the sum of £150.70 for the period from the 27th of August to the 18th of September 2018. Furthermore, the respondent deducted from the September wage slip the sum of £389.03 for the training costs of the certificates. Clause 25 of the contract states “the cost of any training and accreditation courses or exams will be met by close shift and in return you are expected to remain in the employment of Cloudshift for a minimum of 12 months. If you leave the company for whatever reason before the 12 months have passed, the cost of your training courses or accreditation exams will be deducted from your final salary”. I am satisfied in the absence of evidence or argument to the contrary that the clause is to be read as meaning that the cost is only to be incurred if the claimant voluntarily left the Employment. Accordingly, the deduction was not authorised under section 13 of the employment rights act. It was an unlawful deduction. Thus, the claimant is entitled to a total of £539.73 as unpaid wages.[4]The claimant is entitled to one months notice pay at the higher salary of £47,500 per annum, net of tax and national insurance. That figure amounts to £2986. There is to be deducted from that the one weeks net notice pay at the lower rate amounting to £656 which was paid to him at the end of September. Accordingly the claimant is entitled to £2330 as notice pay due.