Heaney v North Eastern Education and Li... [2010] NIIT 6051

THE INDUSTRIAL TRIBUNALS

CASE REFS: 6053/09

6051/09

CLAIMANTS: 1. Denise Hughes

2. Iona Heaney

RESPONDENT: North Eastern Education and Library Board

DECISION

The decision of the tribunal is that the failure by the respondents to pay the enhanced overtime rates to the claimants amounted to an unlawful deduction by them from the claimants’ wages, that the claimants’ claims are upheld and the Tribunal orders the respondents to reimburse the claimants’ accordingly.

Constitution of Tribunal

Chairman: Ms P Sheils

Members: Ms G Ferguson

Mr J Nicholl

Appearances

The Claimants appeared and were represented by Mr John O’Neill of Thompson McClure, Solicitors.

The Respondent was represented by Ms Anne Finnegan, Counsel, instructed by Education & Library Boards’ Solicitors.

The Claim and the Response

1. The claimants each lodged a claim on 28 May 2009 claiming unauthorised

deductions from wages in relation to the difference between their rate of overtime pay since November 2008 (double time) as opposed to a rate of overtime pay they claimed they were due (treble time).

2. The respondents presented a response denying any unlawful deduction from wages as alleged or at all.

Sources of Evidence

3. Witnesses

The Tribunal heard oral evidence from

The Claimants:

Mr Tommy Wright, NIPSA, the then Trade Union Side Secretary for the Northern Ireland Joint Council Negotiating Body;

Sean Dorrity, Trade Union Officer with UNISON and the claimants’ trade union representative;

Ms Tracey Milligan, Shop Steward for UNISON at the NEELB up until November 2006.

For the Respondents:

Mr Robin Harper, Chief Administrative Officer of the North Eastern Education & Library Board;

Mr John Curran, the then Lead Management Side Secretary for all non-teaching staff across all five Boards including the North Eastern Education and Library Board; Mr Kieran Campbell, Salaries and Wages Officer in the NEELB from July 1996 to present date;

Mr Shane McCurdy, Chief Finance Officer in the North Eastern Education and Library Board until September 2007;

Mr Hubert Taylor, Chief Finance Officer, North Eastern Education and Library Board.

Mr Robert McGreevy, Management Side Negotiator at the North Eastern Education and Library Board since November 2008 (previously Head of Human Resources, Belfast Education and Library Board).

4. Documents

The Tribunal had sight of a number of documents contained in a hearing bundle to which it was referred during the hearing. The Tribunal has taken account of only those documents from that bundle to which it had been directed.

Submissions

5. The Tribunal heard oral submissions from the claimants’ representative, Mr John O’Neill, and received written and heard oral submissions from the respondent’s representative, Ms Anne Finnegan.

Facts

6. The Tribunal found the following facts agreed or proven on a balance of probabilities:

(1) The claimants in the case are Ms Denise Hughes and Mrs Iona Heaney. Ms Hughes commenced working for the North Eastern Education and Library Board (the NEELB) at County Hall, Ballymena in May 1996 and Mrs Heaney commenced working for the same Board in the same place in November 2003. At the time of events giving rise to the circumstances of this case, from February 2005 to the present date, both claimants have been employed in the Salaries and Wages Department as Executive Officers. Both claimants are members of UNISON.

(2) In 2003 all the Library Boards including the NEELB were going through a job evaluation process whereby workers were being re-graded. This exercise was called the “single status exercise”. The single status exercise evaluated former manual workers in specific working groups, for example, building maintenance workers, grounds maintenance workers, cleaners etc.

(3) The work on the job evaluation process in the single status exercise culminated in workers’ salaries and wages having to be amended in line with the new gradings and also involved the payment of arrears of back pay. This had the effect of increasing the volume of work in the Salaries and Wages Departments and it had this effect in the NEELB too.

(4) Throughout the period from February 2003 to the present date the work in relation to the single status exercise was progressed on a rolling basis dealing with groups of workers in turn.

(5) In February 2003 an agreement was reached between the Management Side (MS) and the Trade Union Side (TUS) where, inter alia, an enhanced rate of overtime pay, double time Monday to Friday and triple time at weekends, would be paid in relation to work on this single status exercise. This agreement also provided for a one-off payment of an honorarium of £700 to be paid to relevant staff, which honorarium would be paid “on completion or deemed completion” of the exercise.

(6) In the event the honorarium was paid in two parts, the first £350 at the outset of the exercise in 2003 and the second £350, in response to staff request in July 2005. However work in relation to the single status exercise, done on an overtime basis, continued thereafter and up to and including the date of this hearing.

(7) The parties differed in their views as to whether the payment of the honorarium had brought to an end the agreement in relation to the enhanced overtime rates or whether, as was the claimants’ contention, that part of the agreement was still extant and applicable now.

The position since July 2005

In July 2005, and at the request of staff, the second part of the honorarium was paid out. The claimants contended that the agreement in relation to the enhanced rates of overtime for single status work still stood after this point and up to the present day.

However the respondents contended that the second payment of the honorarium brought to an end the agreement between the MS and the TUS in relation to the enhanced overtime rates, as its payment had the effect of “deeming” the exercise complete, as per the terms of the agreement set out in Mr Curran’s letters of 21 February 2003 and 10 March 2003.

Estoppel

7. On occasions between July 2005 and November 2006 the claimants each worked periods of overtime in relation to the single status exercise. On these occasions both claimants were paid overtime of double time Monday to Saturday and treble time for Saturdays and Sundays, “the enhanced rates”. (Ms Hughes worked overtime periods between July 2005 and June 2006; Mrs Heaney worked overtime periods between July 2005 and November 2006.)

8. However, overtime work done by the claimants since November 2008 has been paid at a lower rate of double time. This was on the basis that, as far as the respondents were concerned, the agreement to pay enhanced overtime rates had been brought to an end in July 2005.

9. The claimants disputed that the agreement in relation to enhanced overtime rates had been brought to an end in July 2005 or at any other time. The claimants contended they should be paid overtime on foot of the earlier 2003 agreement and that they had only agreed to do overtime at a double time rate since November 2008 on foot of an assurance given to them by Mr Harper, who, they said, had stated that if it were ever clarified that they should be paid at the higher treble time rate, he would so pay them.

10. The claimants also contended that the respondents were aware that they were accepting double time on this basis and “under protest”. The claimants stated that at every period since 2003 when such overtime had become available they had always been paid the enhanced rates for it. Further, the claimants were signatories to a formal collective grievance dated and lodged with the respondents on 23 January 2009 in which they had claimed their entitlement to treble time (for overtime worked in connection with the ongoing implementation of the single status agreement).

11. The respondents disputed that the claimants had been given such an understanding. The respondents also refuted the claim that the claimants were working for the double time overtime rate “under protest”. The respondents contended that the claimants, in working at the lower, double time overtime rate, had accepted this rate and should thus be “estopped” from claiming that they were due the higher rate.

12. The Tribunal found that the respondents had given the claimants such an understanding. The Tribunal heard from Mr Harper who confirmed that although he would not have called it an “assurance” he had used a form of words to indicate that if the position was found to be that the enhanced overtime rates should be paid that the Board would honour this position.

13. Additionally the Tribunal noted that the respondents were aware of the claimants’ grievance that clearly stated their claim to the enhanced overtime rates and their intention to pursue their claim to Tribunal if not satisfactorily resolved by the Board.

14. In these circumstances the Tribunal did not accept the respondents’ submissions that by working for and getting only double time for overtime since November 2008 the claimants had “accepted” this rate and should therefore be estopped from claiming otherwise.

The Agreement Documents

15. The Claimants’ View

(1) The claimants contended that the agreement between the MS and the TUS was contained in several documents. These documents were:-

(a) Letter form Mr Curran to Mr Wright dated 21 February 2003

(b) Letter from Mr Curran to Mr Wright dated 10 March 2003.

(d) Letter from Mr Curran to Mr Wright dated 22 April 2004

These documents were at pages B1-7 and B13 of the hearing bundle.

(2) The claimants also contended, in the alternative, that the original agreement had been replaced or extended by the following documents, namely

(d) a letter from Mr Curran to Mr Wright dated 22 April 2004; and

(e) an email from Mr McCurdy to Miss Milligan, dated 30 May 2009.

These documents were located at pages B13 and B17 of the hearing bundle.

16. The Respondents’ View

On the other hand the Respondents’ contended that the agreement between the parties was found at documents (a), (b) and (c) only, located at pages B1-7 of the hearing bundle.

17. The Claimants’ View

The claimants stated that at first instance the agreement between the parties in relation to the enhanced rates of overtime, the honorarium and when the enhanced overtime rates would end was to be discerned from what was contained in the correspondence between Mr Curran and Mr Wright, including the differences in the wording between these letters.

In the first letter Mr Curran stated that the Boards would be willing to pay enhanced overtime rates of double time Monday to Friday and treble time Saturdays and Sundays for those staff in both salaries and wages and human resources sections who have agreed to work such overtime specifically in connection with this exercise, to make a payment of an honorarium of £400 to each such member of staff and added that “…the details of when such a payment would be made is to be agreed by the Boards but it is anticipated, at this point, that it will be payable upon completion or deemed completion of the incompletion of the above exercise in relation to single status”.

After further negotiations Mr Curran wrote again to Mr Wright on 10 March 2003, specifically amending paragraph 3 of the first letter, first by increasing the honorarium from £400 to £700.00 to each relevant member of staff “…who are deemed by their managers to contribute directly or indirectly to facilitating this exercise and to those staff directly involved in the Personnel/Payroll Section, again as confirmed by their appropriate line manager” and secondly making it clear that the “completion or deemed completion” of the single status exercise, which was to bring about the payment of the honorarium, was no longer a matter for agreement by the Boards.

Document (c)

In his letter of 18 March Mr Wright accepted the terms of the revised offer with the additional provision for “some capacity for local flexibility in applying the terms subject to local agreement”, which was accepted.

Document (d) (2004)

It transpired that the additional work in relation to the single status exercise was sporadic and was spread out over a considerable period of time. In April 2004 Mr Curran again wrote to Mr Wright and stated

You will be aware of the special arrangement put in place to cater for the unprecedented situation as a result of the implementation of the single status agreement and it was intended that this would be completed within a 12 month period. However, this has not been possible and through no fault of staff in Salary and Wages and Human Resources the amount of work and associated overtime payments had been less than planned. Therefore, the Boards have agreed to continue to pay an enhanced overtime rate to those staff in both Salaries and Wages and Human Resources who have agreed to work such overtime specifically in connection with this exercise until it is completed. The enhanced rates are double time Monday to Friday and treble time on Saturdays and Sundays.

Overtime for this work has continued to be available on an on-off basis throughout the years from 2003 up to the present date.

The Agreement was agreed across all five education and library boards. The Tribunal was advised that enhanced overtime rates for single status work had not been paid in the other boards after the payment out of the second part of the honorarium in 2005.

However, the claimants submitted that this position was a reflection of “local flexibility”, that it did not affect the terms of the original agreement nor did it indicate that the payment of the second part of the honorarium brought the enhanced overtime rates to an end.

The parties agreed the following fact in relation to this point, “…that after the second part of the honorarium was paid, “agreement” rates ceased to be paid by the other four boards in connection with the processing of arrears as a result of job evaluation in connection with single status and various other arrangements were put in place to deal with such work on an ongoing basis under local arrangements in each of the other four boards”.

Overtime after July 2005

18. In November 2005 staff were again advised that overtime was available for work in relation to the single status exercise. This work was in relation to the re-evaluation of Buildings Supervisors. At this point staff queried the rates of overtime they would receive and were advised that the normal overtime rates only would be paid. However when staff made it clear that they would not be happy to volunteer to do this work, Mr Campbell had a meeting with Mr Taylor. They agreed that this particular overtime would be paid at the enhanced rates.

19. Also in November 2005 Mr Campbell queried the rates of overtime that would be paid for single status work in relation to Grounds Maintenance staff, due to become available to staff later in 2006. Mr Campbell’s query was “With regards to the evaluation for Grounds Maintenance, I have been asked if the arrangement for double time and triple time is applicable when working overtime.” Again staff made it clear that they would be reluctant to do this overtime at a less that an enhanced rate.

Document (e), (B17) Mr McCurdy’ s email 30 May 2006

20. In his replying email, dated 30 November 2005, Mr McCurdy stated “No. With the payment of the existing of the second and balancing sum of the lump sum it was understood that future settlements would be undertaken within the context of normal existing arrangements.”

21. Subsequently in May 2006 Ms Tracey Milligan, Unison shop steward, wrote directly to Mr McCurdy and asked him to clarify his reasons for “not paying the same double and treble time that was previously paid to staff that worked on the former manual staff ?”

22. Mr McCurdy replied at some length by email dated 30 May 2006. These are the salient parts of that e mail;

“As you may be aware the previously held position was that as and when it was agreed to pay the second instalment of the lump sum element, of the previous agreement, then effectively the pay arrangements that had been brought in to help progress the former manual job evaluation payments was deemed to have completed.”

“At the time when the second instalment was paid, at the request of staff, it was of course recognised that not all former manual job evaluations had been completed.”

“Now that the Grounds Maintenance Job Evaluation Process has been completed, with the employees having already been placed onto the new pay scales, the residual element of the arrears due to that date has yet to be calculated and paid. At that time although indicative timescales had been provided to the relevant staff, when it was hoped that arrears may have been available for June, it was recognised that this was during the same period when the Board would be engaged in the migration from ISIS to Resource Link and therefore compliance with the usual timescale was always going to be difficult.

In recent discussions with Kieran and given that we have ostensibly now moved across onto Resource Link I had asked that we review the priority attached to this activity and that we progress the work of calculating the arrears due to this group of staff.

Your assertion that it is not possible for Salaries staff to work on these calculations during working hours, is one that I have some difficulty with as it is Management’s responsibility to ensure that all work that is required to be done is prioritised accordingly within the work of the office and therefore Management have the responsibility to determine what should be done, by when and during what time. That said, I am accepting that there are many demands on the time of staff within the Salaries and Wages office and following due discussion with Mr Campbell and subsequently with the members of the staff panel we are agreeable to re-instating an enhanced overtime working for those duties that are specifically related to the progression of the Job Evaluation arrears that cannot be accommodated through prioritisation of work within the normal working day. In such circumstances calculation of the Job Evaluation arrears due to the Grounds Maintenance staff will be progressed in accordance with this specific request of office management, in accordance with all operational priorities, and where the need for overtime is identified, Mr Campbell has authorisation to facilitate that with the enhanced arrangements where it relates specifically to these calculations. It is hoped that by providing this facility we can achieve an earlier outcome for the payment of arrears to this category of staff than might otherwise have been the case.”

The parties were at odds with a number of aspects of this email.

23. The Claimants’ View

The claimants refuted Mr McCurdy’s contention that the pay arrangements (enhanced overtime rates) introduced to deal with the single status exercise work had ended on payment out of the honorarium, that nothing in the original agreement indicated that the payment of the second part of the honorarium would complete or “deem complete” the single status exercise. The claimants’ contended that the reference to completion or deemed completion of the exercise was a reference to the point at which the honorarium would be paid and had no connection to the rates of overtime.

24. The claimants’ also refuted Mr McCurdy’s contention in this regard on the basis that Mr Curran’s letter of 22 April 2004 supported their view or, in the alternative, supplanted the original agreement with the clear expression of the intention that this overtime work would attract enhanced rates with the words “until it is completed”.

25. The claimants also contended that as the agreement reached in relation to the payment of an honorarium and the enhanced rates had at all times been contained in a jointly negotiated agreement, accordingly the “deemed completion” of the exercise would have been a term of the agreement that would have required joint negotiation to decide it and as this had not happened the agreement remained in place.

26. In the alternative the claimants contended that this e mail represented an extension of the earlier agreement or, alternatively again, was a new agreement in that it confirmed “…the reinstatement of an enhanced overtime working for those duties that are specifically related to the progression of the Job Evaluation arrears that cannot be accommodated through prioritisation of work within the normal working day”.

27. In the email these words were immediately followed up with the sentence,”… in such circumstances calculation of the Job Evaluation arrears due to the Grounds Maintenance staff will be progressed in accordance with this specific request of office management, in accordance with all operational priorities, and where the need for overtime is identified, Mr Campbell has authorisation to facilitate that with the enhanced arrangements where it relates specifically to these calculations”. However the claimants refuted the respondents’ submission that these words had the effect of limiting the re-instatement of the enhanced overtime rates to work in relation to Grounds Maintenance staff.

28. The claimants submitted that the two sentences must be read together and not in isolation from one another. The claimants submitted that the first sentence reinstated the enhanced overtime rates the second sentence confirmed that the effect of this was that overtime on work in relation to Grounds Maintenance staff would be paid at the enhanced rates.

29. The Respondents’ View

The respondents’ contended that the e mail was clear that the payment of the second instalment of the “lump sum element”, (the honorarium), had also brought to an end the pay arrangements, (the enhanced overtime rates). The respondents contended that Mr McCurdy’s assertion reflected the position as set out in the earlier correspondence between Mr Curran and Mr Wright and in particular those parts of Mr Curran’s letters which stated… “The details of when such a payment would be made is to be agreed by the Boards but it is anticipated, at this point, that it will be payable upon completion or deemed completion of the above exercise in relation to Single Status”

30. The respondents also contended that this e mail agreed to enhance the overtime rate only for work in relation to the Grounds Maintenance workers. In this assertion the respondents submitted that the two sentences on which the claimants’ relied to support their contention in this regard made it contrary-wise clear the limit of the reinstated rates, for work in relation to Grounds Maintenance staff only.

Submissions

31. The Tribunal heard oral submissions from both Mr O’Neill and Ms Finnegan. Ms Finnegan had also committed part of her submissions to writing. The Tribunal was grateful to both representatives for the cogency of their submissions and took account of these submissions in reaching its conclusion. These submissions are referred to in the Tribunal’s overview of the law and in its conclusions.

The Law

32. Article 45 of the Employment Rights (Northern Ireland) Order 1996 provides workers with the right not to suffer unauthorised deductions. Specifically Article 45 provides:

(1)- An employer shall not make a deduction from wages of a worker employed by him unless-

(a) 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

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this Article “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised –

(a) in one of more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) In one or more terms of the contract (whether expressed or implied and, if expressed, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified the worker in writing on such an occasion.

33. Article 46 of the same Order provides a number of excepted deductions, including the overpayment of wages or expenses, or where the deduction is made pursuant to the requirement on the employer of a statutory provision, or where the deduction has been previously agreed to by the worker in writing.

34. The question of whether or not there had been any unauthorised deductions from the claimants’ wages hinged on the success or otherwise of the claimants’ argument that the agreement to pay enhanced overtime rates for work in relation to the single status exercise was extant and had not been brought to an end on the payment of the honorarium.

35. In the alternative the claimants argued that unlawful deductions from their wages were made by the respondents’ by failing to pay them enhanced overtime rates on the basis that the original agreement in relation to enhanced overtime rates had been either extended or replaced by subsequent agreements to the same effect.

The Law on the Interpretation of Contracts, generally:

36. The Tribunal considered the extracts from the following texts to which it had been referred, namely:

Chitty on Contracts, 30th Edition, Volume 1, General Principles

The Interpretation of Contracts, Kim Lewison QC, Sweet and Maxwell, 2004.

The Tribunal also considered the case law referred in those texts and the case law to which it was specifically referred, namely,

Pioneer Shipping Limited-v-BTP Tioxide Limited 1982 AC724

Miramar Maritime Co-Operation-v-Holborn Oil Trading Limited 1984 AC676 Amalgamated Investment and Property Company Limited-v-Texas Commerce International Bank Limited 1982 2 QB 1984.

Miramar Maritime Co-Operation-v-Holborn Oil Trading Limited 1984 AC676

37. Both representatives agreed on the general principles of contract interpretation including the principles that the construction or interpretation of an agreement is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

38. Both representatives also referred the Tribunal to “The Interpretation of Contracts”, by Kim Lewison Q.C. and relied on this text to support other important rules of contract construction/interpretation, for example that the Tribunal’s task of ascertaining the common intention of the parties must be approached objectively and that the starting point for such an exercise is the written contract itself. As stated by Lord Diplock in Pioneer Shipping Ltd v BTP Tioxide Ltd. [1982] it is for the Tribunal to “ascertain what the mutual intentions of the parties were as to the legal obligations each assumed by the contractual words in which they sought to express them”.

39. In the case, Investors Compensation Scheme Limited-v-West Bromwich Building Society 1998 1WLR896, Lord Hoffman stated “the meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of diction and recent grammars; the meaning of the document is what the parties using those words against relevant background would reasonably have been understood to mean.”

40. Ms Finnegan submitted that although this was the general rule the Tribunal should also take account of the words of Lord Hoffmann in Miramar Maritime Corp v Holborn Oil Trading Ltd [1984] AC 676 who stated “…language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement.”

41. Mr O’Neill added that this rule also made it clear that if those words as construed by the Tribunal departed from the original intention of the parties, so be it.

42. Mr O’Neill submitted the Tribunal should also consider that the “whole contract is to be considered”, that is to say “every contract is to be construed with reference to its object and the whole of its terms, and accordingly, the whole context must be considered in endeavouring to collect the intention of the parties, even though the object of enquiry is the meaning of an isolated word or clause.”

43. In this regard Mr O’Neill submitted that Mr Curran’s letter of 22 April 2004 was critical. This letter was written more than a year after the first agreement. Mr O’Neill submitted that this letter made it clear that the single status exercise had gone on longer than the Board had anticipated and, in that context, Mr Curran was confirming to Mr Wright that the enhanced overtime rates would continue until the exercise is completed.

44. Mr O’Neill submitted that it was of significance that in this letter there was no reference to the payment of the honorarium and thus no reference to “completion or deemed completion.”

The Law on the Interpretation of Contracts,

More specific rules of contract construction:

45. Mr O’Neill suggested the Tribunal took the plain legal meaning and effect of these words which he submitted related only to when the payment of the honorarium would be made. Mr O’Neill submitted that the Tribunal should consider the wording of the agreement itself and in particular Mr Curran’s second letter to Mr Wright dated 10 March 2003 and the words “the payment of this honorarium will be made upon completion or deemed completion of the above exercise in relation to single status.” Mr O’Neill submitted that this sentence did not indicate that the payment of the honorarium would also bring to an end the enhanced overtime rates.

46. Mr O’Neill referred the Tribunal to some more specific rules of contract interpretation and in particular the rule as set out in Chitty, at chapter 12-078, “where the different parts of an instrument are inconsistent, effect must be given to that part which is calculated to carry into effect the real intention of the parties as gathered from the instrument as a whole and that part of it which would defeat it must be rejected.”

47. Mr O’Neill submitted in this regard that the references in Mr Curran’s first two letters to the completion or deemed completion of the single status exercise were inconsistent with one another in that the new paragraph three in Mr Curran’s second letter removed the proposal that the boards would agreed when the single status exercise would be deemed complete.

48. Mr O’Neill submitted that two points arose on this. The first was that the removal of such deeming “by the boards” was consistent with the submission that any such decision would have been accepted/intended to have been a joint decision. Mr O’Neill submitted that the agreement in question was a result of joint negotiations and that any clause relating to “deemed completion” should not be regarded as a unilateral issue.

49. Secondly Mr O’Neill submitted that the interpretation given by the respondents to these two letters, namely that they gave an understanding that the payment of the honorarium would complete or deem complete the single status exercise and end the enhanced overtime rates was inconsistent with the contents of Mr Curran’s third letter dated 22 April 2004 where Mr Curran made it clear that the enhanced overtime rates in relation to single status exercise work would continue “until it (the exercise) is completed. In both respects Mr O’Neill urged the Tribunal to invoke the above rule to conclude the real intention of the parties to this agreement.

50. Mr O’Neill went on to submit that the Tribunal should consider and give effect to the rule of contra proferentem, where the benefit of the construction of the agreement should be given to the non-drafting party, in this case, to the claimants. Mr O’Neill submitted that the point of this was to acknowledge the fact that if the non-drafting party, the claimants, had been aware of the possible subsequent adverse interpretation of the agreement at the time of drafting then the claimants would not have signed the agreement in the first place.

51. Mr O’Neill additionally submitted that “payment on deemed completion” was a different concept and he drew on the analogy of a bookmaker who pays out punters before the final event completes. Mr O’Neill submitted that in circumstances of this case even if the employer had paid out the honorarium early its payment did not bring the single status exercise to an end.

52. Mr O’Neill also relied on the rule of contract construction that a party cannot rely on his own breach. He submitted that as the respondent had paid the honorarium at a time or times different from the time or times set out in the agreement, the respondent had been in breach of the contract terms and that this rule prevents the respondent relying on this breach to alter the meaning of the whole contract.

53. In any event, Mr O’Neill submitted, the variation as to the payment of the honorarium, so that it had been paid out in two parts rather than one part, was the result of local flexibility, as referred to in Mr Wright’s letter of the 18 March 2003 enabling the payment of the honorarium could be made even if the single status exercise was not completed.

54. Mr O’Neill submitted that the law on contract construction was clear in that “it is not legitimate to use as an aid in the construction of the contract anything that the party said or did after it was made.” Mr O’Neill submitted that this was because people acting under a contract may not have understood the proper meaning of the contract. Mr O’Neill submitted that it was for the Tribunal to interpret the agreement and not to re-write it in line with how people behaved under the contract.

55. In this regard Mr O’Neill stressed that evidence as regards how the agreement was understood by the witnesses or how it was acted upon in any of the other four Library Boards was entirely irrelevant and should be disregarded by the Tribunal.

56. Ms Finnegan submitted that the first agreement between the parties was contained in only the first three documents. Ms Finnegan submitted that the agreement as contained in those three documents should be read in light of the natural meaning of its words. In this instance Ms Finnegan suggested the words of contention were in paragraph three of Mr Curran’s letter of 21 February 2003, in the sentence “The payment of this honorarium will be made upon completion or deemed completion of the above exercise in relation to single status.” Ms Finnegan submitted that natural meaning of the words in this sentence of indicating that the exercise for which staff was being paid enhanced rates was deemed to be complete once the honorarium was paid.

57. Ms Finnegan further submitted that if the Tribunal found that the agreement was capable of more than one construction, the Tribunal should choose that which seems most likely to give effect to the commercial purpose of the agreement.

58. Ms Finnegan submitted that it was accepted that the purpose of the agreement was “to deal with a huge increase in workload that must be accomplished within a very tight timeframe… at a time when there are already other substantial pressures arising from evaluations and other seasonal increases in workload.”

59. Ms Finnegan submitted that the staff’s request to have the second part of the honorarium paid out and management’s agreement to do so had the effect of “deeming complete”, by both sides, the single status exercise, even though it was clear that overtime work in relation to the single status work was not actually finished. Ms Finnegan submitted that if the intention of the parties had been to have enhanced overtime rates paid until the exercise was completed then the words “deemed complete” were superfluous.

60. Ms Finnegan also submitted that it was clear from the fact that staff, including the claimants, after July 2005 when the second part of the honorarium had been paid out, enquired on a number of occasions what the overtime rate would be for this work was indicative of the fact that staff and the claimants were well aware of the fact that the payment of the honorarium had ended the “agreement rates.”

60. Ms Finnegan submitted that the payment of enhanced overtime rates after July 2005 and in relation to the single status exercise was a series of new agreements, the first of which was the oral agreement so to pay between Mr McCurdy and Mr Campbell in November 2005 (re the Buildings Supervisors), the second of which was in Mr McCurdy’s email of the 30 May 2006. However Ms Finnegan submitted that these subsequent agreements had to be understood as having been made in the context Mr McCurdy’s statement in November 2005, that “…after the payment of the honorarium future settlements would be undertaken within the context of normal existing arrangements”

The Tribunal’s Conclusions

62. The Tribunal noted that the parties agreed on the purpose of the agreement which was to provide incentives to staff to carry out overtime in relation to the single status exercise. The Tribunal concluded that the agreement provided for both incentives separately. These incentives included enhanced overtime rates and the payment of an honorarium of £700 to each (relevant) staff member.

63. The Tribunal noted that the correspondence between Mr Curran and Mr Wright, including the letter of 22 April 2004 were the only documents between the agreeing parties and the Tribunal concluded that the documents since that date were attempts by others to indicate that, in their opinion, the terms of the original agreement had been brought to an end, on the payment out of the honorarium.

64. In reaching this conclusion the Tribunal applied the rules of contract construction that it should approach the task of interpreting the agreement objectively, identify the agreement itself and consider the plain and natural meaning of the language used in it.

65. The Tribunal concluded from Mr Curran’s first two letters that the provision in the agreement referring to the completion or deeming completion of the single status exercise related only to the intention between the parties as to when the honorarium was to be paid and did not relate to the payment of the enhanced overtime rates.

66. The Tribunal concluded that this decision was supported by the clarification in Mr Curran’s letter of the 22 April 2004 which made it clear that it was the intention between the parties that the enhanced overtime rates would be paid until the exercise was completed.

67. The Tribunal concluded that the failure by the respondents to pay the enhanced overtime rates to the claimants amounted to an unlawful deduction by them from the claimants’ wages, that the claimants’ claims were upheld and that the respondents should reimburse the claimants’ accordingly

Chairman:

Date and place of hearing: 28 – 29 January 2010, 16 – 17 & 19 February 2010,

Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Heaney v North Eastern Education and Li... [2010] NIIT 6051_09IT (07 June 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/6051_09IT.html Cite as: [2010] NIIT 6051_9IT, [2010] NIIT 6051_09IT

Industrial Tribunals Northern Ireland Decisions