Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/159_12IT.html
Cite as: [2012] NIIT 159_12IT, [2012] NIIT 00159_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 159/12

CLAIMANT: Keith Holroyd

RESPONDENT: Mr Edmund Wilson t/a Wilson Transport

DECISION

It is the decision of the tribunal that the respondent has breached the claimant’s contract of employment and shall pay the claimant £543.75 in respect of gross pay and £127.50 in respect of net overnight allowance due to him.

Constitution of Tribunal:

Chairman (Sitting alone): Ms M P Bell

Appearances:

The claimant did not appear. The claimant was represented by Mr Brian Garvey of the Independent Workers Union.

The respondent did not appear and was not represented.

1. The claimant in his claim complained that the respondent engaged him as a HGV driver between 24 October 2011 and 29 October 2011, had agreed to pay him £6.00 gross per hour and £9.00 gross per hour after 40 hours plus an overnight allowance of £25.50 net for each night away from home, but in breach of agreed terms failed to pay him £543.75 due for a total 73 hours and 45 minutes worked, £127.50 for five nights away from home and £17.20 for a toll bridge charge. The claimant complained that he was given a cheque for £350 but when he tried to explain the amount was wrong the respondent became threatening and when he tried to lodge the cheque it was refused.

2. No response has been presented by the respondent in accordance with the Industrial Tribunal Rules of Procedure contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. A late response following the hearing of this matter on 3 April 2012 was received by the office of the tribunals on 11 April 2012 and was rejected pursuant to Schedule 1, Rule 6 (1) of the Industrial Tribunal Rules.

3. Mr Garvey confirmed that the claimant was unable to attend due to a back problem which prevented him from travelling from Mayo but that full details of his claim were set out in the claim form and additional details provided in a statement from the claimant submitted at hearing.

EVIDENCE

4. The tribunal considered the claim, statement from the claimant and copy cheque provided.

ISSUES FOR TRIBUNAL

5. The issues for the tribunal were as follows:-

(i) Has the respondent in breach of contract failed to pay the claimant monies due?

(ii) If so, what loss has the claimant suffered?

FINDINGS OF FACT

6. The claimant was employed by the respondent as a HGV driver in the UK and Ireland between 24 October 2011 and 29 October 2011. It was agreed that the respondent would pay the claimant £6.00 gross per hour and £9.00 gross per hour after 40 hours plus an overnight allowance of £25.50 net for each night away from home.

7. The claimant on commencement of his employment before leaving on his first job carried out checks of the respondent’s vehicle and trailer, he discovered a defect in the nearside wheels on the trailer in that two or three of the holes in the rim were elongated and showing past the diameter of the wheel nuts which he reported to the respondent but was instructed to proceed with his delivery.

8. The claimant requested permission on 26 October 2011 to take the vehicle to a garage for attention because a few of the wheel studs on the trailer had worked their way loose and were becoming dangerous but his request was refused and he was instructed to drive the vehicle back to Ireland as a repair would be too expensive on the mainland where he was at that time. The claimant endeavoured to tighten the wheel nuts as best he could before continuing his journey but the vehicle’s tyre subsequently exploded on 26 October 2011 which the claimant attributes to the defect noted and reported by him to the respondent. The claimant telephoned the respondent who sent out a mechanic to repair the vehicle, as this could not be done on the roadside the axle was chained up and the claimant had to drive the vehicle to Cardiff docks. After repairs were carried out the claimant caught the next available ferry home and returned to the respondent’s premises on 29 October 2012.

9. On his return the respondent gave the claimant a cheque for £350.00 made out to ‘Keith Truthfully’, the claimant did not notice at that stage that the cheque was made out to the wrong name but noticed and tried to point out that the amount was incorrect, however he believed the respondent was becoming aggressive toward him and was aware of two other men standing behind. The respondent informed the claimant that he was not being kept on and told him not to show his face there again. The claimant decided not to argue with the respondent because of the two men present and so left.

10. The claimant when he went to present the respondent’s cheque noticed the wrong name on it and so was unable to lodge it. The claimant subsequently spoke to the respondent on the telephone regarding the cheque but was informed that he would not be paying him because the claimant had cost the respondent money when the truck broke down.

11. No evidence was provided as to deductions for tax and national insurance to be made at source from the claimant’s pay.

THE LAW

12. A breach of contract claim arising or outstanding on termination of an employee’s employment may be brought before an Industrial Tribunal under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

APPLYING THE LAW TO FACTS FOUND

13. The tribunal is satisfied on a balance of probabilities based on the claimant’s account set out in his claim form and written submissions and from vouching documentation provided that the respondent in breach of contractual terms agreed on commencement of his employment failed to pay the claimant for 73¾ hours worked at £6.00 per hour gross for the first 40 hours and £9.00 gross thereafter in respect of which the claimant has sustained a loss of £543.75 gross and that the respondent has failed to pay the claimant an overnight allowance of £25.50 net for 5 nights in respect of which the claimant has sustained a loss of £127.50 net. In the absence of vouching documentation the tribunal is not satisfied in respect of the loss claimed for a toll bridge charge.

14. No evidence was provided to the tribunal in respect of tax or national insurance deductable at source from gross pay of £543.75. If any deduction of tax or national insurance is alleged properly deductable at source from gross pay due to the claimant, the amount must be vouched by a fully itemised pay slip and agreed by the claimant prior to any deduction being made, otherwise the tribunal directs that the gross amount shall be paid in full to the claimant and the claimant be responsible for any tax or national insurance payable thereon and indemnify the respondent in respect thereof.

CONCLUSION

15. The respondent has breached the claimant’s contract of employment and shall pay the claimant £543.75 in respect of gross pay due to him and £127.50 in respect of net overnight allowance due to him.

16. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 3 April 2012, Belfast.

Date decision recorded in register and issued to parties:

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