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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Diamond v John Stinson, t/a J.S Couriers [2010] NIIT 04343_09IT (03 February 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/04343_09IT.html
Cite as: [2010] NIIT 04343_09IT, [2010] NIIT 4343_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 04343/09
& 06058/09
CLAIMANT: Niall Patrick Diamond
RESPONDENT: John Stinson, t/a J.S Couriers
DECISION
The unanimous decision of the Tribunal is that the respondent, Mr Stinson is to pay the claimant outstanding monies of £1,074.45 in relation to failure to pay holiday pay, failure to provide written particulars of employment/contract of employment and an unlawful deduction of wages.
Constitution of Tribunal:
Chairman (sitting alone): Ms Petra Sheils
Members:
Appearances:
The claimant appeared and was represented by Mr David Reid, Counsel, instructed by Conor Agnew Solicitors.
The respondent appeared and represented himself.
The Claimant
The claimant lodged a claim on 13 March 2009 claiming breach of contract, no written terms of contract of employment, unlawful deduction from wages, holiday pay and payment in lieu of notice. This claim was first rejected in relation to the unlawful deduction from wages and the claimant submitted a second claim in relation to the unlawful deduction of wages on 20 May 2009, having completed the grievance procedure.
The Response
The respondent presented a response on 13 May 2009. This response dealt only with the claimant’s claim for breach of contract, holiday pay and notice pay and the failure to provide particulars of employment. The respondent did not present a response in relation to the claimant’s second claim in relation to the unlawful deduction of wages.
Sources of Evidence
The Tribunal heard from the claimant and from Mr Stinson, the respondent.
Issues
The claims were consolidated. However under Rule 9 of the Industrial Tribunals (Constitution and Rules of Procedures) Regulations (Northern Ireland) 2005 the Tribunal advised the respondent that he could not take any part in the hearing insofar as it related to the claim from unlawful deduction of wages.
The Tribunal invited the respondent to consider presenting a late response which, if rejected, could be reviewed by another tribunal which would have a discretion as to whether or not any such late response would be admitted. In the event the respondent decided to proceed with the hearing in relation to the claimant’s first two claims and decided to take no further part in relation to the claim for unlawful deduction of wages.
Findings of Facts
The Tribunal found the following relevant facts as agreed or proven on a balance of probabilities;
The claimant, whose date of birth is the 22 August 1978, commenced employment with the respondent on 26 May 2008 as a delivery driver. He earned £240.00 per week gross, £190.00 per week nett. The claimant’s employment ended on 16 February 2009.
The claimant attended work on Monday 16 February 2009 and was advised by Mr Stinson that he had no work for him and that he would have to go at the end of the week. Mr Stinson advised the claimant that there was work for him for that day (Monday) but he was not sure whether he would be able to pay the claimant for any work during that incoming week.
Immediately after this conversation the claimant took the van and drove it to “Indoors”, the collection point for goods delivered by the respondent firm to customers. The claimant returned to the respondent’s yard immediately and advised Mr Stinson that he had decided not to work on the basis that Mr Stinson had said that he was not sure that he could pay the claimant. The claimant then got into his car and drove home.
The respondent’s version of this event was that he had spoken to the claimant on Friday 13 February and given him a week’s notice. The respondent stated that he had previously consulted with his bookkeeper and that she had advised him that if he was laying any worker off one week’s notice had to be given.
On this basis the respondent stated that he had spoken to the claimant on Friday 13 February 2009 and told him that he was on a week’s notice. The respondent stated that he had explained to the claimant that there was work for the claimant for the following week with pay but that would be the end of it, that Friday the 20th would be his last working day.
Mr Stinson went on to state that the claimant had appeared for work on Monday 16 February, loaded up his van and an hour later returned to the premises. He stated that the claimant had returned the keys of the van and had told Mr Stinson that he would not be working the week’s notice.
The respondent accepted that he had not put this version of events in his response to the claimant’s claim for outstanding notice pay. The respondent further accepted that his response had been completed by his bookkeeper on the basis of information given to her by the respondent and that he had subsequently signed the response.
Holiday Pay
The respondent accepted that he would pay the claimant any holiday pay owed to him.
Particulars of Contract
It was accepted by the respondent that the claimant had not been given any particulars of his contract of employment.
Unlawful Deduction from Wages
The claimant had claimed that Mr Stinson had deducted £48.80 in respect of an overpayment of wages and an additional sum of £80.00, said by Mr Stinson to be for repairing damage caused by the claimant to one of the respondent’s vans and as per the claimant’s contract. The claimant did not offer any evidence in relation to the overpayment of wages. However the claimant stated that it had never been agreed between himself and the respondent that the claimant would be liable for any damage caused to the respondent’s vans.
The Law
The Employment Rights Northern Ireland Order 1996 at Article 118 states
“The minimum period of notice required to be given by an employer to terminate the contract of an employee and at Article 118(1) that minimum notice period is
(a) Not less than one weeks’ notice if his period of continuous employment is less than two years.
Under Article 45 of the same order, protection of wages, an employee has the right not to suffer unauthorised deductions. At Article 45 (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 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.
The Employment Northern Ireland Order 2003 at Article 27 provides:
1. Article 27(1). This article applied to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4.
2. If in the case of proceedings to which this article applies–
(a) The industrial tribunal finds in favour of the employee but makes no award to him in respect of the claim to which the proceedings relate and
(b) When the proceedings were begun the employer was in breach of his duty to the employee under Article 33 (1) or 36 (1) of the Employment Rights Northern Ireland Order 1996 (duty to give a written statement of initial employment particulars or of particulars of change), the tribunal shall subject to paragraph 5 make an award of the minimum amount to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances award the higher amount instead.
(c) If in the case of proceedings to which this applies
(a) the industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate and
(b) when the proceedings were begun the employer was in breach of his duty to the employee under Article 33 (1) or 36(1) of the Employment Order the tribunal shall, subject to a paragraph 5, increase the award by the minimum amount and may if it considers it just and equitable in all the circumstances increase the award by the higher amount instead. Paragraph 5 states “the duty under paragraph 2 and 3 does not apply if there are exceptional circumstances which would make an award or an increase under that paragraph unjust or inequitable.
The Tribunal’s Conclusions
On the basis of the inconsistencies in the respondent’s evidence at hearing and his answers to the claimant’s claims in his response the Tribunal accepted on balance the claimant’s version of events and in particular how his employment had ended. Additionally the Tribunal accepted that the claimant had not agreed to pay for damage to the respondent’s vehicles and noted that there was no evidence produced by the respondent to indicate that the claimant had done so in writing.
Accordingly the Tribunal awarded the claimant £244.00 payment in lieu of notice and £7.38 unclaimed holiday pay. The Tribunal further awards the claimant £200 in relation to the fact that the respondent, Mr Stinson, did not provide the claimant with any written contract or particulars in writing.
The Tribunal noted that under Article 17 of the Employment Northern Ireland Order 2003, paragraph 3
“If in the case of proceedings to which this article applies it appears to the industrial tribunal that –
(a) The claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) The statutory procedure was not completed before the proceedings were begun, and
(c) The non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer
(1) to (then) comply with the requirement of the procedure or subject to paragraph 4 increase any award which it makes to the employee by 10% and may if it considers it just and equitable in all the circumstances to do so increase it by a further amount but not so as to make a total increase of more than 50 per cent.
(4) The duty under paragraph 2 and 3 to make a reduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.
(5)
(6) The Tribunal heard from the respondent that in relation to any increase in any of the award to the claimant. The respondent stated that there had been a big downturn in his business and that he could not afford to pay more. However the respondent provided the tribunal with no evidence in relation to this and the Tribunal did not accept that the respondent, Mr Stinson had made out a case to this effect.
(7)
(8) Accordingly the Tribunal decided to increase the award in relation to the unlawful deductions by 20% and in relation to the failure to give written contract of employment by 20%).
The Tribunal orders the respondent, Mr Stinson, to pay the claimant the sum of £1,074.45.
(9) This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 26 November 2009, Belfast
Date decision recorded in register and issued to parties: