Industrial Tribunals Northern Ireland Decisions

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THE INDUSTRIAL TRIBUNALS

CASE REF: 778/02

APPLICANT: Stephen Gerard O'Neill

RESPONDENT: T A McGrath

DECISION

The unanimous decision of the tribunal is that the applicant's case in respect of a claim for deduction from wages is not well founded and is hereby dismissed.

Appearances:

The applicant appeared in person.

The respondent appeared in person.

Summary Reasons

The tribunal found the following facts:-

The applicant was employed by the respondent for a period of seven months. As such he was not entitled to make a claim for unfair dismissal and although his Originating Application at paragraph 11 indicated that he was making a claim for time off to care for a sick dependent, we are unable to find that he qualified for that right in accordance with Regulation 13 of the Maternity and Parental Leave Regulations (Northern Ireland) 1999.

The applicant's child had been admitted to hospital and stayed in hospital from 16-18 February 2002. The applicant informed the respondent that he would not be attending work as he had to care for his young children. On 18 February 2002, the respondent found the applicant at a site of another occasional employer of the applicant. It was not disputed that the applicant was sitting in the cab of a dump truck, and upon seeing Mr McGrath the applicant ran to him indicting that it was "not how it looked". Mr McGrath later that day by telephone dismissed the applicant.

Despite claiming a knowledge of the law, the tribunal has noted that Mr McGrath has not seen fit to comply with his legal obligations to provide his employees with a statement of their main terms and conditions of employment. This is good industrial practice, even more than that it is the law.

The applicant was unable to provide any basis to the tribunal upon which he could support his claim to be entitled to receive one week's pay in lieu of notice. The respondent indicated that as the applicant was driving a machine for another employer and his machine had been left standing idle, he did not consider that he had any responsibility to pay a week's pay in lieu of notice.

The tribunal makes no finding as to whether the applicant was in fact working for his alternative occasional employer on the day in question. It considers that it has insufficient evidence before it upon which to do so. However, if it really was the applicant's case that he had only called in to speak to Mr Nugent briefly and had moved the dump truck out of the goodness of his heart, the tribunal considers that it would be more likely than not on the balance of probabilities that the applicant would have brought witnesses from Mr Nugent's firm (for whom he now works) to support his case. On balance, the tribunal is unable in all the circumstances of the case to find in favour of the applicant and hold that the respondent was in breach of his contract of employment by summarily dismissing him. Accordingly, the tribunal considers that the applicant's claim for a deduction of wages in respect of one week's pay in lieu of notice is not well founded and is hereby dismissed.

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Date and place of hearing: 7 November 2002, Belfast

Date decision recorded in register and issued to parties:

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