Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/1298_13IT.html
Cite as: [2013] NIIT 1298_13IT, [2013] NIIT 01298_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1298/13

CLAIMANT: Gervase Scullion

RESPONDENT: Truck Track Freight Ltd

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed. I order the respondent to pay to the claimant the sum of £13,568.15.

Constitution of Tribunal:

Chairman (sitting alone): Miss E McCaffrey

Appearances:

The claimant appeared in person and was not represented.

The respondent had not entered a response and did not appear.

1. The issue for the tribunal to determine is:-

“Whether the claimant had been unfairly constructively dismissed when he resigned from his employment with the respondent on 3 June 2013?”

2. The claimant was employed by the respondent as a long distance lorry driver from 28 April 2012 until 3 June 2013. His take home pay was £500.00 per week but he was not aware of his gross pay and he was not given payslips.

3. The claimant advised that there had been some delays in receiving his pay at the end of May/beginning of June 2013. He stated that he had to remind his employers about payment of pay in May; but eventually received these amounts. On Saturday 1 June 2013 he was on a break at Birkenhead waiting for a ferry to get home. He had access to his bank account online and realised that his pay had not been paid into his account. He stated he contacted Paul McKeown, another employee of the respondent, who dealt with wages to ask why there was a delay. Mr McKeown answered that he did not have time to do it and would sort it out later on. He then went onto say that the employer would be changing payment of wages to monthly pay. The claimant advised Mr McKeown that he would find this very difficult as he had to make payments every week. The claimant advised Mr McKeown that if there was not some compromise in this he would have to cease working for the respondent because he would be unable to pay his bills. Mr McKeown’s reply was that he would require one week’s notice.

5. When the claimant returned to Northern Ireland he followed the instructions given to him by Mr McKeown. On Tuesday 4 June 2013, Mr Hugh Herdman, the Managing Director of the company, came to the claimant’s home to collect the lorry. The claimant asked him why he had not been paid and Mr Herdman’s reply was that the transport manager had told him why, and he could be expect to be paid on 7 June 2013. The claimant gave him details of expenses that he had incurred and reminded him that he was still awaiting another £250.00 in expenses from previous weeks. The wages were not paid on Friday 7 June 2013 and following this the claimant wrote to the respondent seeking the amounts which were due to him. Amongst the amounts owing to the claimant were his wages for the previous week, £500.00 for a lying week and reimbursement of expenses (including road tolls etc) totalling £327.15.

6. The claimant advised that the holiday year ran from April to April. He knew he was entitled to 28 days’ holiday per year. He advised that he had not been paid for his holidays in the previous leave year; but was not sure exactly what holiday he was due. He said he was content to address only holiday he was entitled to from April through until the beginning of June 2013.

7. On 17 June 2013 the claimant received a letter from the company containing a cheque for £930.00, his P45, P60 for the previous tax year and some payslips showing his weekly wage of £500.00 gross and £340.00 net. The claimant produced print-offs from his bank statement showing the amounts he received and he was very concerned that the payslips were inaccurate. He indicated that he had previously sought payslips from his employer in December 2012 but had not received any payslips during the course of his employment. I am satisfied that the claimant had no previous knowledge of or agreement to any irregularity as regards his contract of employment.

Relevant law and decision

8. I am content on the basis of the evidence given that the claimant was unfairly constructively dismissed by the respondent. The respondent committed a fundamental breach of contract in failing to pay the claimant the pay that he was due on Friday 31 May 2013 and in withholding that pay for two weeks until 17 June 2013. I find that this was a fundamental and repudiatory breach of contract which went to the core of the relationship between the claimant and the respondent such that the claimant was entitled to resign in response to it. Given that the claimant had been paid on a weekly basis up until this point, I am also of the view that the respondent was not entitled to unilaterally vary the terms of the contract to pay the claimant on a monthly basis instead without the claimant’s agreement and that therefore again the claimant was entitled to resign in response to this.

9. The claimant was out of work for approximately one month and then found work as a coach driver starting on 1 July 2013. In this job he is paid the sum of £320.00 gross per week, £265 net per week. He did not receive any benefits while unemployed.

The claimant was aged 53 at the date of dismissal, and at that time, the statutory cap on a week’s pay was £450.00.

I order the respondent to pay to the claimant the following by way of compensation:-

Basic Award:	£450.00 x 1½	=	£675.00

Compensatory Award:	4 week’s net pay £450.00 x 4	=	£1,800.00

Loss of earnings from 3 June 2013 - 24 September 2013	(500 - 265 = £233) 16 weeks x £233.00	=	£3,728.00

Future Loss:	26 weeks x £233.00	=	£6,058.00

Balance of Wages due and expenses owed		=	£357.15

Loss of Statutory Rights		=	£500.00

Holiday Pay	£90.00 per day	=	£450.00
Five days accrued but not taken 1 April 2013 - 3 June 2013

			£13,568.15

10. In addition, the respondent failed to provide the claimant with written terms and conditions of employment as he is obliged to do so under Article 33 of the Employers Rights (Northern Ireland) Order 1996.

11. Where the claimant has a successful claim for other matters, such as unfair dismissal or unlawful deductions from wages (as in this case) I am also entitled to order the respondent to pay to the claimant a sum of up to four weeks’ pay in respect of failure to provide written terms and conditions of employment. In this case I believe it would be appropriate to make an award of two weeks’ pay and I therefore order the respondent to pay to the claimant the sum of £900.00 (£450 x 2 weeks) in respect of failure to provide written terms and conditions of employment.

12. The claimant did not receive any Social Security Benefits and therefore it is not necessary to make any provision for recoupment in this case.

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

Chairman:

Date and place of hearing: 24 September 2013, Belfast.

Date decision recorded in register and issued to parties:

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