Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/531_10IT.html
Cite as: [2010] NIIT 531_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 531/10

CLAIMANT: Dereck Hammond

RESPONDENT: The Estate of Mr T V Hughes (Deceased)

T/A Hughes International

DECISION

The decision of the tribunal is that the tribunal does not have jurisdiction to entertain the claimant’s claim in view of the provisions of Article 4 of the Industrial Tribunal’s (Northern Ireland) Order 1996 and the claimant’s unauthorised deduction from wages claim is dismissed.

Constitution of Tribunal:

Chairman: Ms M Bell

(Sitting Alone)

Appearances:

The claimant appeared and represented himself.

No appearance was made of behalf of the respondent.

1. The claimant in his claim complained that he had suffered an unauthorised deduction of wages in respect of wages and expenses owing to him.

2. A response was received in the form of an email from Mrs Noreen Moore, daughter of deceased respondent resisting the claimant’s claim. It was contended that the respondent’s estate is in the South of Ireland, that the respondent’s business was that of an international haulage company which operated from the South of Ireland, and that the respondent was not a permanent resident in, nor operated his business from the Northern Ireland address provided by the claimant, but that the address given was that of Mr and Mrs Kevin Moore’s home at which Mrs Moore’s father came to stay with them on occasion particularly after the recent death of her mother, which the respondent found of comfort. It was stated that the respondent from time to time had post redirected to Mrs Moore’s home and furthermore contended that the claimant was not a permanent member of staff but a casual driver when work was available.

3. Written submissions were submitted dated 11 May 2010 prepared by solicitors on behalf of the claimant in particular questioning the contention that the respondent was but an occasional visitor to his daughter’s address on the basis that a number of trucks purchased by the respondent were registered to the Northern Ireland address, as confirmed by a telephone conversation with the DVLA. Particulars of the claimant’s claim were given and compensation sought for failure by the respondent to provide written terms of employment.

THE ISSUES

The issues before the tribunal were

· Has the tribunal jurisdiction to entertain the claimant’s claim? If so,

· Has the claimant suffered an unauthorised deduction from his wages?

EVIDENCE

4. The tribunal considered the claim, response, written submissions dated 11 May 2010, a written statement of the claimant’s and copy documentation attached thereto. The tribunal also heard oral evidence from the claimant.

FACTS FOUND

5. The claimant understood that the respondent, Mr Thomas Vincent Hughes, lived in and operated from the South of Ireland, and on 30 May 2009 accepted an offer over the telephone from the respondent to carry out work for him as a HGV driver, driving in England and Europe.

6. The claimant is resident in Scarborough, North Yorkshire, England and lived and worked from this address whilst working for the respondent.

7. The claimant was not employed by the respondent to, nor did he ordinarily, carry out any work for the respondent in Northern Ireland.

8. 16b Crumlin Road, Upper Ballinderry, Lisburn, Northern Ireland is the private residence of Mrs Noreen Moore, and her husband Mr Kevin Moore.

9. A Job Confirmation (P3) Skills For Jobs form was completed by a Mr Brian Downey, office manager, on 13 September 2009 confirming details of the claimant’s employment with the respondent and provided the respondent’s address as Carrick-on-Shannon, Ireland.

10. The claimant gave evidence that the respondent opened a sterling bank account in the North of Ireland to facilitate payments to the claimant in sterling and the purchase of a vehicle from Volvo, for which he believed that a Northern Ireland address was required to be provided and believed that the respondent’s daughter’s address was used. No documentary evidence was provided. A photocopy of a returned Lisburn branch bank cheque drawn by the respondent payable to the claimant was attached to the claimant’s written statement relating to details of his claim.

11. The claimant gave evidence that the Driver Vehicle and Licensing Authority had confirmed to his solicitors that a truck purchased by the respondent from Volvo in England which he had been instructed to pick up in England and drive was initially registered with the DVLA to the respondent’s daughter’s address. No documentary evidence was provided. The claimant gave evidence that this was done by the respondent to save on tax and that as soon as the log book was received by the respondent the vehicle was registered to the respondent’s address in the South of Ireland.

12. The claimant stopped working for the respondent in the middle of December 2009.

13. The respondent died on 5 January 2010.

14. The claimant presented a claim to the Leeds Employment Tribunal on the
8 March 2010 as the claimant carried out work in England but was rejected as the respondent did not have an address in England or Wales.

15. The claimant presented a claim to the Office of the Industrial Tribunals on
15 March 2010.

THE LAW

16. Article 4 of the Industrial Tribunal’s (Northern Ireland) Order 1996 provides that proceedings may be brought before an industrial tribunal in respect of a claim for damages for breach of a contract of employment or other contract connected with employment, a claim for a sum due under such a contract, and, for the recovery of a sum in pursuance of any statutory provision relating to the terms or performance of such a contract, if the claim is such that a court in Northern Ireland would under the law, for the time being in force, have jurisdiction to hear and determine an action in respect of the claim.

17. Order No.1 of the County Court Rules (Northern Ireland) 1981 provides that actions may, save as where provided otherwise by any other order, commence -

a. in a court for the division in which the defendant resides or carries on business; or

b. subject to the succeeding paragraphs of the Rule, in a court in the division in which the cause of action wholly or in part arose.

18. Article 3 of the 1994 Order allows proceedings to be brought before an industrial tribunal in respect of a claim for the recovery of damages or any other sum, as provided therein, arising or outstanding on termination of the employee’s employment.

APPLYING THE LAW TO FACTS FOUND

19. On consideration of all the evidence before it, including the claimant’s evidence as to the registration of vehicles, initially in Northern Ireland and subsequent re-registration in the South of Ireland, of the respondent having had a sterling bank account in Northern Ireland to facilitate payments to him and vehicle purchase, the tribunal is not persuaded on a balance of probabilities that the respondent in fact resided in, or, carried on business in Northern Ireland when these proceedings were commenced.

20. On the claimant’s own evidence he was engaged to work in England and Europe for the respondent, he was not employed to, nor ordinarily worked in Northern Ireland. The tribunal is not persuaded on a balance of probabilities that the claimant’s cause of action wholly, or in part, arose in Northern Ireland.

21. The tribunal is not satisfied that it has jurisdiction to hear the claimant’s claim.

CONCLUSION

22. The tribunal does not have jurisdiction to entertain the claimant’s claim in view of the provisions of Article 4 of the Industrial Tribunal’s (Northern Ireland) Order 1996 and dismisses the claimant’s unauthorized deduction from wages claim.

Chairman:

Date and place of hearing: 21 May 2010, Belfast.

Date decision recorded in register and issued to parties:

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