Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Shannon v Gibson Paving Limited [2010] NIIT 01632_10IT (08 October 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/01632_10IT.html
Cite as: [2010] NIIT 1632_10IT, [2010] NIIT 01632_10IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 1632/10

CLAIMANT: Gareth Shannon

RESPONDENT: Gibson Paving Limited

DECISION

The unanimous decision of the tribunal is that the claimant is not entitled to be paid money for working extra hours for the respondent but is entitled to be paid for a wrongful deduction from his salary amounting to £116.20.

Constitution of Tribunal:

Chairman: Mr Cross

Members: Mr Lindsay

Mr Hunter

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr Gibson a director of the respondent company

Findings of Fact

1. The proper name of the respondent is Gibson Paving Limited and the tribunal substitutes this name for the name previously used Gibson/Paving Contracts.

2. The claimant was employed by the respondent from 24 August 2009 as a Contracts Supervisor. He had been interviewed for this job by one of the directors of the respondent Mr Fred Gibson. At the interview the two men discussed the work that the claimant had done in his previous job and what Mr Gibson expected him to do for the respondent company. This included supervising contracts planning for materials to be delivered to the appropriate site, organising the team of employees laying out paving stones and a general “hands on” supervisory role. For instance he would from time to time drive a digger if required.

3. The salary was agreed at £28,000.00 per annum payable weekly at the rate of £538.00. There was no discussion about overtime. The claimant never received a contract of employment.

4. During the first few weeks of his employment Mr Gibson and the claimant went to England to visit sites where the claimant would be working. He was introduced to the people concerned and shown the sites of the respondent’s contracts. This entailed early starts from the airport and late evenings in England. On his return home the claimant was often at a site at 7.00 am getting ready for the team to come and start work at 8.00 am. The other office staff did not start work until 9.00 am and finished at 5.00 pm. The claimant was often working later. He was never paid any overtime. He also worked the occasional Saturday for which he received no payment.

5. The claimant from time to time spoke to Mr Gibson, about what he saw as his entitlement to overtime. This was always brushed aside with a joke or banter. However, on 18 December 2009, the claimant had a meeting with Mr Gibson at which the matter of overtime was again raised. Mr Gibson told the claimant that he was considered to be a member of the staff of the respondent and thus not entitled to be paid for overtime. He also said that there were “swings and roundabouts” in that the claimant, like other staff, was not required to fill in time sheets for his work, as was the case with the employees whom he was overseeing. The claimant did not have to account for where he was at any time.

6. As a result of this conversation the claimant stopped working on Saturdays as he was not getting paid any extra money for that work.

7. During the very bad weather at the start of January 2010, the men were laid off for two days. They were paid a statutory lay off pay for those days. The respondent’s office deducted two days pay from the salary of the claimant for the month of January. Mr Gibson admitted that this deduction was the respondent’s mistake.

Decision of the tribunal

8. The tribunal having heard the evidence find that the claimant was employed as a member of the staff of the respondent and therefore not entitled to be paid overtime. There was no contract of employment issued to the claimant and consequently the tribunal has to rely on the oral evidence of the claimant and Mr Gibson. They both agreed that nothing was said about overtime at the meeting, at which the claimant was taken on. It was only later that the matter was raised. In treating the claimant as a member of the staff, the only inconsistent action taken by the respondent, was in deducting money for the two days not worked in January. In this connection the tribunal accept that this was an administrative mistake made in the office. The claimant, as a member of staff was entitled to be paid for the whole month, whether he was working or not. It was only the daily paid employees who would suffer such a deduction.

9. The tribunal hold that the claimant is not entitled to be paid overtime but is entitled to be paid for the two days in January at the rate of £81.60 net per day, less the lay off payment which he did receive of £23.50 per day, making a sum due of £58.10 per day for 2 days. A total of £116.20.

10. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 7 September 2010, Belfast.

Date decision recorded in register and issued to parties:

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010