Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/02768_11IT.html
Cite as: [2012] NIIT 02768_11IT, [2012] NIIT 2768_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2768/11

CLAIMANT: John Robert Barron

RESPONDENT: Stephen McGowan t/a SPR McGowan Tree Services Limited

DECISION

The unanimous decision of the tribunal is that claimant’s claim for breach of contract is well founded and awards the claimant the sum of £349.91.

The title of the respondent was amended to that now shown.

Constitution of Tribunal:

Chairman: Ms J Knight

Members: Mr A Burnside

Mr J Pollock

Appearances:

The claimant appeared and represented himself

The respondent appeared but as he had not entered a response to the claimant’s claim he was not entitled to take any part in the proceedings pursuant to Rule 9 of the Industrial Tribunals (Constitution and Procedure) Regulations (Northern Ireland) 2005.

Issue

1. Whether there are outstanding wages due to the claimant.

Evidence

2. The tribunal considered the evidence of the claimant and documentary evidence submitted by him. The tribunal found the claimant to be a truthful and credible witness. Mr McGowan was present throughout the hearing but the tribunal declined to hear his evidence as he had not entered a response to the originating claim, after clarifying that he had received the originating claim.

Findings of Fact and Conclusions

3. The claimant was employed by the respondent as a general labourer from 9 August 2011 until his resignation on 25 August 2011. There was a verbal agreement made between the parties that the claimant would be paid £6.70 (gross) per hour for an average 40 hours working week and that he would be sent on training courses. The claimant was not given a written statement of his terms and conditions of employment.

4. At the end of the first week, the claimant made enquiries as to how and when he would be paid. He was given weekly time sheets to fill in by office staff to record his hours worked. The claimant filled in the time sheets and submitted these weekly. His time sheets recorded that he worked 121.25 hours in total from 9 until 25 August inclusive.

5. On 25 August 2011 at approximately 12.00 pm the claimant asked the respondent when he would be paid. The respondent gave the claimant the sum of £300 in cash and asked the claimant to sign a receipt for this. The claimant told the respondent that this was not what had been agreed. The respondent told the claimant “You’re not as good as we thought you would be.” The respondent asked the claimant if he had signed on yet and told the claimant that he should sign on for jobseeker’s allowance. The claimant took pictures of his timesheets on his mobile phone which were sitting out, while the respondent took a phone call. At the bottom of the timesheet there is a space for “Employee Signature” clearly signed and dated by the claimant and “Supervisor Signature”. This was left blank. The claimant left and did not return to this employment. The effective date of termination of his employment contract was therefore 25 August 2011.

6. The claimant wrote to the respondent on 29 October 2011 requesting payment of the outstanding wages owed to him setting out the number of hours worked and the amount he was claimed was due. He pointed out that he had not been given written terms and conditions of employment. He also raised a number of health and safety matters which do not give a free standing right that may be determined by this tribunal. The respondent did not reply to this letter disputing any of the contents.

7. The claimant lodged his originating claim with the Office of the Tribunals on 14 November 2011. The respondent did not lodge a response disputing the claim.

8. The tribunal may hear and determine breach of contract claims pursuant to the provisions of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. The tribunal was satisfied that the claimant had worked a total of 121.25 hours as claimed by him and that respondent had not paid the claimant in respect of all these hours. The tribunal was satisfied that there was a verbal agreement between the parties that the claimant would be paid £6.70 per hour and that he had completed the employee weekly timesheets and submitted these to the respondent. The tribunal noted that the amount of unpaid wages at the effective date of termination of employment claimed by the claimant was a gross figure and that any figure awarded should be adjusted to an amount net of tax.

9. Therefore the tribunal calculates the sum due for unpaid wages as follows:

121.25 hours x £ 6.70 = £812.38

Less 20% tax £162.47

_______

£649.91

Less monies paid by respondent £300.00

Balance unpaid wages £349.91

10. The claimant is not entitled to any compensation pursuant to the provisions of Article 27 of the Employment (Northern Ireland) Order 2003 for the failure to give written employment particulars as he was employed for less than 2 months.

11. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 13 March 2012, Belfast.

Date decision recorded in register and issued to parties:

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