Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1495/16

 

 

CLAIMANT:                          Fergal McVeigh

 

RESPONDENT:                  Evo Marketing UK Ltd

 

 

 

DECISION

The decision of the tribunal is that the claimant is entitled to payment of £50.00 compensation for breach of contract.  All other claims are dismissed.

 

Constitution of Tribunal:

 

Vice President:                   Mr N Kelly (sitting alone) 

 

Appearances:

The claimant appeared in person.

The respondent was represented by Ms Courtney Gates. 

 

Background

 

1.         The claimant had been employed as a charity fundraiser for one complete year.

 

2.         He resigned on 27 May 2016. 

 

3.         He claimed under four headings:

 

(i)        he claimed that the respondent had not supplied him with a statutory set of terms and conditions of service as required by the Employment (Northern Ireland) Order 2003. 

 

(ii)        he claimed four weeks’ notice pay;

 

(iii)       he claimed holiday pay for five days; and

 

(iv)      he claimed breach of contract in relation a deduction of £50.00 as a fine for late submission of paperwork.

 

4.         The claimant and Ms Gates both gave evidence.  Documents were submitted by both parties.  In relation to the first heading i.e. the allegation that statutory terms and conditions of service had not been provided to the claimant, Ms Gates provided a copy of a blank statement of principal terms and conditions of service which corresponded with the requirements of the 2003 Order.  She stated that it had been supplied to all employees but often was not signed and returned.  She stated that this had occurred in the case of the claimant.  The claimant asserted that it had not been supplied.  However, the claimant was unable to provide details of holiday pay taken during the period immediately preceding his resignation.  He appeared to have an incomplete recollection of matters relating to his employment.  On the balance of probabilities therefore, I conclude that it is more likely than not that the statutory notice had been provided as indicated by Ms Gates to the claimant.  That aspect of the claim is dismissed.

 

5.         In relation to the second head of claim, i.e. the claim for notice pay, the claimant asserts that he is entitled to four weeks’ notice.  However, both the claimant and the respondent are clear that he resigned and was not dismissed.  No payment for notice pay is therefore due in this matter.  That part of the claim is dismissed.

 

6.         In relation to the claim for holiday pay, the claimant stated he had no details or records in relation to holiday pay.  He stated that those were currently on his iPhone which was undergoing repair.  Ms Gates provided spreadsheets which indicated that, in the relevant leave year which ran from 26 October to 25 October each year, 17 days’ of annual leave had been paid to the claimant.  The claimant was not in a position to rebut that evidence.  The onus of proof lay on him.  Given that the entitlement to contractual annual leave for the entire leave year was 28 days, the claimant had been paid more than he was entitled to.  The claim for holiday pay is therefore dismissed.

 

7.         In relation to the claim for breach of contract in relation to the deduction of a £50.00 fine for late submission of paperwork, the parties referred to an e-mail sent by Ms Gates to all the relevant staff, including to the claimant, on 6 October 2015.  That e-mail purported to alter their contracts in relation to the payment of commission by providing for the imposition of fines where paperwork was submitted late.  Those fines comprised a fine of £10 per day.  There had been no negotiations in relation to a variation of the contract.  No variation had been agreed.  The previous contract had not been terminated and a new contract submitted following the dismissal of the employee.  This therefore appears to have been an unlawful unilateral variation of the employee’s contract.  That part of the claim succeeds and the claimant is awarded £50.00 compensation in relation to that breach of contract.

 

8.         The respondent is therefore directed to pay the claimant £50.00 in relation to that breach of contract.

 

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

 

 

 

Vice President

 

 

Date and place of hearing:  25 August 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: