Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 328/04

CLAIMANT: William Mitchell

RESPONDENTS: 1. Norman Taylor, C/o Eric G Bell (Trustee in Bankruptcy)

2. Department for Employment & Learning

DECISION

The unanimous decision of the tribunal is that the Department did not fail to make a payment which it ought to have made and has not made a payment less than the amount which ought to have been paid.

Appearances:

The claimant appeared in person.

The first respondent did not appear nor was he represented.

The second respondent was represented by Mr P Curran, Department for Employment & Learning.

1. The claim as set out in the originating application related to the alleged failure of the first respondent to make a redundancy payment, pay in lieu of notice, arrears of wages and holiday pay.
2. At the hearing it became clear that the Department for Employment & Learning (the second respondent) had made a redundancy payment to the claimant and payment in lieu of notice. By letter dated 16 January 2004, the Department had refused to pay holiday pay or arrears of wages.
3. The originating application was dated 9 February 2004. The tribunal accepts that the claimant's intention was to appeal the decision of the Department, which he was invited to do by letter dated 4 February 2005. Accordingly, by consent, the tribunal amends the originating application to include a claim under Article 233 of the Employment Rights (Northern Ireland) Order 1996.
4. The issues for the tribunal are as follows:-

(a) Whether the redundancy payment made by the Department is less than the amount which ought to have been paid.

(b) Whether the payment in lieu of notice made by the Department is less than the amount which ought to have been paid.

(c) Whether the Department failed to make a payment for holiday pay which it ought to have made.

(d) Whether the Department failed to make a payment for arrears of wages which it ought to have made.

5. The tribunal found the following facts proved on a balance of probabilities:-

(a) The claimant was employed as a legal executive by the first respondent from 30 November 1999 to 18 December 2002.

(b) The Office of the first respondent was closed without notice on 18 December 2002 and in May 2003 the first respondent was adjudicated bankrupt.

(c) The claimant's wages were paid in cash at all times. The claimant did not receive pay-slips, had no written contract or statement of terms and conditions.

(d) The claimant did not produce any documentary evidence to the Department or to the tribunal to corroborate his claim that he earned £300.00 per week, apart from one cheque for that amount signed by the first respondent shortly before the first respondent's business closed down.

(e) The claimant contacted a former book-keeper for the first respondent, Mr McKendry, in an attempt to obtain confirmation of his employment with the first respondent and his rate of pay. Mr McKendry provided the claimant with a P60 for the year ending April 2001

(f) The claimant did not accept that the information provided by Mr McKendry in the P60 was correct, and told him so. Mr McKendry told the claimant that he had stopped doing PAYE returns for the first respondent because he had concerns that the information with which he was provided was not accurate.

(g) The Department accepted that the claimant was entitled to a redundancy payment and to notice pay in the circumstances in which his employment was terminated. The calculation of the payments was based on the information provided by Mr McKendry in the P60 for year ending 2001.

(h) The Department had attempted to obtain the employment records of the first respondent from the Trustee in Bankruptcy, Mr Bell. Mr Bell had no employee records in his possession, and a questionnaire sent to the first respondent regarding terms and conditions of employees yielded no information.

(i) The Department refused to pay holiday pay or unpaid wages because there was no evidence to support the claimant's claim that the amounts were outstanding.

6. In our view, the onus is on the claimant to prove that he is entitled to the payments sought from the Department. There is not a shred of evidence to substantiate the claimant's claim that he was paid £300.00 cash per week. One cheque from the first respondent, without any indication of the period it was intended to cover, or indeed its purpose is insufficient to justify a conclusion that £300.00 was the claimant's weekly wages. The only evidence available to the Department and to the tribunal is the P60 from Mr McKendry. Nor is there any evidence on which the tribunal could conclude on a balance of probabilities that the claimant had wages outstanding at the time his employment terminated. Similarly, there is no evidence to support the claimant's claim that he was owed holiday pay.
7. In the absence of any corroborating evidence, the tribunal is not satisfied on a balance of probabilities that the claimant was entitled to the amounts sought from the Department. The claim is therefore dismissed.

Chairman:

Date and place of hearing: 11 April 2005, Belfast

Date decision recorded in register and issued to parties: