Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  7/17

 

 

 

CLAIMANT:                          Curtis Ault

 

 

RESPONDENT:                  DJTJ Enterprises Ltd, t/a The House Bar

 

 

 

DECISION

The respondent has in breach of contract failed to pay the claimant wages due.  The respondent shall pay the claimant £374.97 in respect thereof.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge Bell

           

 

Appearances:

The claimant appeared in person.

The respondent was represented by Ms Gwendoline Mailey, Manager of the respondent company.

 

1.         The claimant in his claim complained that he was due a balance of £549.60 gross in respect of 107 hours worked by him in the period between 2-14 November 2016 for the respondent, which was to have been paid at the hourly rate of £9.45.

 

2.         The respondent in its response resisted the claimant’s claim and contended that the agreed rate of pay was £24,000.00 per annum and the respondent did not work on 14 November 2016.

 

 

ISSUES

 

3.         The issues to be determined by the tribunal were:

 

Has the claimant suffered a loss arising from a breach of contract by the respondent in failing to pay wages?

 

If so,

 

What loss has the claimant suffered?

 

FINDINGS OF FACT

 

4.         Having previously met the claimant, when purchasing a pizza oven from him, Ms Mailey contacted the claimant in or around September 2016 to enquire if he was looking for work because the respondent was seeking a Head Chef.

 

5.         The claimant subsequently met with Ms Mailey at the respondent’s premises and they discussed the claimant’s past experience and menu ideas.  The respondent wished to improve upon poor food sales.  In the course of their conversation Ms Mailey asked the claimant what amount he had been earning and would be seeking.  The claimant responded, “£9.45 per hour”.  I accept on balance that
Ms Mailey indicated to the claimant that this amount would be acceptable but that no formal job offer was put to him by Ms Mailey on behalf of the respondent at that stage.

 

6.         Within a day of their meeting Ms Mailey telephoned and offered the claimant the job of Head Chef.  It was in dispute whether in the course of that call Ms Mailey specified to the claimant that payment would be salaried at £24,000 p.a. or made no mention as to payment.  I find on balance supported by the claimant’s later correspondence of 8 November 2016 that Ms Mailey indicated to the claimant that the job would be salaried but accept that the figure of £24,000 was not specified.  The claimant declined the job offer on the basis that he had decided in the meantime to proceed with an alternate offer of employment.

 

7.         On 13 October 2016 the claimant emailed Ms Mailey to thank her for considering him for the role of Head Chef and expressed his hope that she had been able to find someone for the role.

 

8.         On 22 October 2016 Ms Mailey responded to the claimant and put to him, that if he did not like where he was, that she still needed a Head Chef.  The claimant replied later that day that he “would very much like to take you up on your offer of what we discussed, if you are still open to it”.

 

9.         Consequently the claimant and Ms Mailey arranged to meet on 26 October 2016 to discuss how to proceed.

 

10.      By email on 26 October 2016, Ms Mailey confirmed to the claimant that an agency staff member could continue to help them out and the claimant responded that they would need the extra help “as we move forward.  The idea is, after all, to get bums on seats and money through the till.”

 

11.      The claimant attended the respondent’s premises on 30 October 2016 with the agreement of Ms Mailey to begin to prepare the kitchens for his formal start on 2 November 2016.  It was agreed that the claimant would have the “run of the kitchen” and have responsibility for his own rota and working hours but anticipated he would work 48 hours over five days per week.

 

12.      The claimant worked for the respondent as follows:-

 

            Wednesday 2 November 2016      -           10 hours

 

            Thursday 3 November 2016           -           11 hours

 

            Friday 4 November 2016                -           11 hours

 

            Saturday 5 November 2016           -           11 hours

 

            Sunday 6 November 2016             -           9 hours

 

            Monday 7 November 2016             -           11 hours

 

            Wednesday 9 November 2016      -           11 hours

 

            Thursday 10 November 2016        -           11 hours

 

            Friday 11 November 2016              -           11 hours

 

            Saturday 12 November 2016         -           11 hours.

 

13.      On Tuesday 8 November 2016 the claimant emailed Ms Mailey confirming his understanding that pay day was a Monday and that there was a lying week but expressed the hope that for his first week he could be paid before the weekend.  The claimant confirmed that he had “logged 52 hours last week” and stated therein  “I know a couple of rates were discussed prior to my coming in, I would prefer the £9.45 hourly rate rather than a salaried contract to begin with until we see how things go through Christmas and then we can sit down and work something out.” 

 

14.      On 11 November 2016 the claimant provided Ms Mailey details required for payroll purposes and she emailed the outside Payroll Company used by the respondent setting out that the claimant was a new start on 2 November 2016 on a “£24K salary”.

 

15.      On Monday 14 November 2016 the claimant resigned from his employment with the respondent without notice, to commence another job.

 

16.      The claimant subsequently received from a respondent a payment made on 23 November 2016 for the net amount of £374.97 being £461.55 gross and payslip in respect thereof dated 7 November 2016.

 

THE LAW

 

17.      Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.

 

Applying the law to facts found

 

18.      Based on the above facts I consider that the claimant was to be paid on a salaried basis an amount equivalent at least to £9.45 per hour for a 48 hours week worked over five days, and as such that the claimant is properly payable £24,000 p.a. being £92.30 per day gross.

 

19.      The claimant has received payment for only 5 of the 10 days worked by him for the respondent (at £92.30 gross per day amounting to £374.97 net) and I find that the claimant has incurred a loss of a further 5 days’ pay at the same rate amounting to  £374.97 net.

 

Conclusion

 

20.      The respondent has in breach of contract failed to pay the claimant wages due. The respondent shall pay the claimant £374.97.in respect of his loss.

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

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:          27 April 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: