O Awonuga v Inrenos 2 Ltd: 2305496/2021
JUDGMENT
[1]The Respondent was in breach of contract by dismissing the Claimant without notice and the Respondent is ordered to pay to the Claimant damages of £673.07 gross.[2]The Respondent made unauthorised deductions from wages and is ordered to pay to the Claimant the sum of £600.45 being the total gross sum deducted. Page 1 of 8REASONS
[1]This was a claim for wrongful dismissal (notice pay) and unauthorised deduction from wages.[2]In the course of the hearing, I heard oral evidence from the Claimant and from Amir Malik, a director of the Respondent.[3]There was no agreed bundle of documents and so I asked the parties if they had any documents which they wanted to refer to.[4]The parties both provided me with various items of correspondence. The Claimant also provided me with a schedule of loss as well as an invoice for clothing he had received from the Respondent, whilst the Respondent also provided me with screenshots of “WhatsApp” phone conversations.[5]What follows are findings of fact I have reached on the balance of probabilities. Only findings of fact relevant to the issues, and those necessary for me to determine, have been referred to in this judgment. It has not been necessary, nor would it be proportionate, to determine each and every fact in dispute.[6]I have not referred to every document I read and/or was directed or taken to in the findings below, but that does not mean it was not considered, if reference was made to it in the course of oral evidence.Background
[7]The Claimant was employed by the Respondent from July 2021 to October 2021 to run two fitness clubs on an annual salary of £35,000. The club in Grove Park had already been running whilst the club in Croydon had just opened.[8]The Respondent accepts that £600.45 was deducted from the Claimant’s final salary, but states that this was due to his not returning company property, namely membership fobs used to gain access to the gym (£397.75), a uniform/branded clothing (£73.37), and a laptop computer (£129.33).[9]Whilst the Respondent did not provide a copy of the Claimant’s contract, Mr Malik provided an extract from the Employee Handbook which applied to the Claimant. The extract reads: Page 2 of 8 “Return of Company property On the termination of your employment for whatever reason, you must return all Company property in your possession or for which you have responsibility. Failure to return all such items will result in the cost of the unreturned items being deducted from any monies outstanding to you. This is an express written term of your contract of employment.”[10]The Respondent also accepts that, in the ordinary course of events, the Claimant would be entitled to one week’s notice. In this case, however, the Respondent submits that the Claimant was dismissed due to gross misconduct and was not entitled to any notice pay. Findings – Gross misconduct[11]The Claimant and Mr Malik did not have a good working relationship. The Claimant admitted that they argued about simple matters and went on to say he felt that Mr Malik was trying to micro manage him. The Respondent was extremely critical of the Claimant’s management skills and general work ethic. There were heated discussions about the performance of the newly opened gym and its performance.[12]The Claimant eventually decided to move on and found himself a new job in a rival gym. He therefore wrote an email to Mr Malik on 8th October 2021 indicating his decision to resign and stated: “It is clear that we have a clash of personality and our approach to running the business is not aligned so its best we part ways. In accordance to my notice period, I would like my final day to be on the 22nd October 2021. […] I would like to thank to for the opportunity and support and I wish you all the best with the two clubs.” [sic][13]Mr Malik responded by phoning the Claimant and agreed that it is best that the Claimant leaves, but said instead of two weeks’ notice he should only work one week’s notice.[14]He went on to say that, in that one week, the Claimant would have to remain motivated. The Claimant responded by saying “Obviously the reason I’m leaving is I’m not motivated, but I’ll try my best” or words to that effect.[15]Both the Claimant and Mr Malik agree that it was around this point that the conversation started to get heated. Page 3 of 8[16]The Claimant’s version of what happened next is as follows. The Respondent said “You have to respect me” to which he replied “No, you don’t show respect to anyone else”. Mr Malik said “You have to give me what I’m paying for” [referring to the Claimant’s last week of work]. The Claimant replied with “Why are you talking shit?” Mr Malik then stated “This is gross misconduct”, to which the Claimant replied “Do what you want, I’ve given you my resignation, do what you want”. Mr Malik finished the phone call with “This is gross misconduct, leave my club immediately”.[17]The Respondent’s version differs somewhat and is as follows. Mr Malik said “Look Olu, this is what you have been doing, I’ve been paying you for doing nothing. You need to give me effort […], you need to work for what I’m giving you”. The Claimant replied with “Look you’re going to pay me one way or the other. You’re going to have to pay me, whether I do something or don’t do something”. Mr Malik stated “Listen Olu, you can’t just say I’m going to have to pay you, your contract says you work for me.” At that point, the Claimant stated “This is the thing with you, you’re a piece of shit, you’re talking shit” or words to that effect.[18]I find that the Claimant gave credible and consistent evidence, and recounted the telephone conversation with precision, whereas Mr Malik repeatedly recalled the conversation in more general terms and frequently qualified his evidence with “words to that effect”. As such, I prefer the Claimant’s evidence in relation to what was said during that telephone call.[19]Mr Malik was clear that the telephone conversation was the gross misconduct that warranted the dismissal of the Claimant without notice. Findings – Fobs[20]The Respondent had purchased fobs from the gym franchisor, which allowed for unsupervised entry to the gym.[21]Mr Malik, in the course of giving oral evidence, made reference to a letter dated 26th October 2021 in which he itemised the cost of the property which he claimed the Claimant failed to return.[22]The letter states that 100 fobs were ordered for Croydon, with another 100 ordered in Grove Park. It states that 12 fobs are missing from Croydon and another 25 are missing from Grove Park, for a total of 37 missing fobs. At a price of £10.75 each (excluding VAT), this therefore makes for a total of £397.75.[23]Mr Malik provided a screenshot of a WhatsApp message where he, in a group chat on 19th September 2021, wrote “What happened to all the Page 4 of 8 fobs??” To this the Claimant responded “I took some to Croydon, I’ll bring some back tomorrow [thumbs up]”.[24]When asked how he knew that the Claimant had taken the fobs, Mr Malik stated that he knew how many fobs he had, he knew that the Claimant had admitted to taking some fobs (referring to the above message) and he believed all the remaining missing fobs were in the Claimant’s possession.[25]Mr Malik claimed that he had a robust stock control system for the fobs, however I prefer the evidence of the Claimant on this point. The Claimant gave clear, credible and consistent evidence, explaining that there was no robust stock control system in place. He stated he was not the only staff member with access to the fobs. He also noted that whenever a sale was made, a fob was given out and that replacement fobs were also issued. All of the above could account for the missing fobs.[26]Additionally, I find the fact that Mr Malik had to send a WhatsApp message in the first place, asking “What happened to all the fobs??” also suggests a less than robust stock control system.[27]The Claimant stated that he was not in possession of any further fobs and I find this to be the case. Findings of fact – Uniform[28]The Respondent made a further deduction from the Claimant in respect of items of uniform. Whilst the Respondent accepts that multiple of items of clothing were returned by the Claimant (indeed the Respondent even supplied photos, sent over WhatsApp, showing some of the items returned), it was submitted that three items of clothing remained outstanding. The Respondent submitted that these must be in the Claimant’s possession.[29]Again, I prefer the Claimant’s evidence on this point. He was consistent, in both oral evidence and in earlier emails sent to Mr Malik over a year ago, that he gave back all the items of uniform in his possession. The Claimant explained that Mr Malik wanted new staff members to wear old items of uniform in the new Croydon gym. The Claimant had to explain to Mr Malik that the “Grove Park” gym name was printed on the old uniform and so new uniform would have to be ordered.[30]The Claimant stated that, after ordering and receiving the items, he distributed some of these items of clothing to staff, used some himself, and returned some to the manufacturer. This would account for any Page 5 of 8 perceived shortfall in the number of items of clothing in the possession of the Respondent.[31]He was clear that he returned all the clothing in his possession and I find this to be the case. Findings of fact – Laptop[32]The Respondent accepts that the Claimant returned two company laptops which the Claimant had been using.[33]Mr Malik states that these were returned, however, with the Claimant’s personal account “logged on”. The Claimant provided a password for the laptops in an email on 2nd November 2021, and Mr Malik indicated that he was able to reset one of the laptops.[34]The other laptop, and the subject of this litigation, Mr Malik originally stated in correspondence he could not reset as it was locked with a 4-digit PIN. He later stated, in both correspondence and in oral evidence, that the issue was there being “some administrator account” on the laptop, but admitted he was not a technical person and had not taken the laptop to a computer repair shop or similar. Discussion – Wrongful dismissal[35]An employee is entitled to be given notice of his dismissal in accordance with the terms of his contract unless he has committed gross misconduct in which case dismissal can usually be effected summarily.[36]Where a claimant has been dismissed without the appropriate contractual notice, the claimant is entitled to claim the damages which are the equivalent to wages he would have earned between the time of the actual termination and the time at which the contract might lawfully have been terminated.[37]I must decide whether the claimant was guilty of conduct serious enough to entitle the respondent to terminate the employment without notice.[38]The Respondent did not provide an excerpt from any Disciplinary Policy, Employee Handbook or contract that defines what the Respondent considers to constitute gross misconduct.[39]I find that the only conduct on the part of the Claimant which could amount to gross misconduct is the use of obscene language in the phrase “Why are you talking shit?” Page 6 of 8[40]I view the use of this language in context, however. This was a one-off instance of swearing and was the culmination of a difficult phone conversation, initiated by Mr Malik, which was itself the culmination of a difficult working relationship. Having considered carefully all the evidence in this case, I find this to be more akin to Wilson v Racher [1974] I.C.R. 428 rather than Pepper v Webb [1969] 1 W.L.R. 514. As such, I find that whilst the Claimant’s actions were misconduct, they were not gross misconduct.[41]The Claimant is entitled to reasonable notice, which must not be less than the statutory minimum notice. I conclude that he was entitled to one week’s notice and the Respondent was in breach of contract by not giving him this notice of termination. I therefore order the Respondent to pay damages to the Claimant for breach of contract of £673.07 gross. Discussion – Unauthorised deductions from wages[42]Section 13(1) of the Employment Rights Act 1996 provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract or the worker has previously signified in writing his agreement or consent to the making of the deduction. An employee has a right to complain to an Employment Tribunal of an unlawful deduction from wages pursuant to Section 23 of the Employment Rights Act 1996.[43]In the present case, the Respondent relies upon the term of the contract outlined earlier. The effect of this term is that if the Claimant fails to return any of the Respondent’s property in his possession or for which he has responsibility, the cost of the unreturned items can be deducted from any monies outstanding to the Claimant.[44]I have found, however, that the Claimant is not in possession of, nor did he have responsibility for, the fobs or the items of uniform that are missing. As such, these deductions from the Claimant’s wages were unauthorised.[45]In the case of the laptop, however, the property is not missing and was returned to the Respondent. As such, Mr Malik invited me to read into the aforementioned term a provision that, if the property was not returned in a suitable manner, then it is as though it were never returned.[46]I do not find it appropriate to do so. The term is drafted in clear, unambiguous language and reading in such a provision would be to change the nature of the term in a significant manner and to the significant Page 7 of 8 detriment of the Claimant. I find that this also was an unauthorised deduction from the Claimant’s wages.[47]Accordingly, I conclude that the respondent made an unauthorised deduction of £600.45 gross wages, and order the Respondent to pay this amount to the Claimant. 27/12/2022