Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2827/16

 

 

 

CLAIMANT:                          Antonio Parente

 

 

RESPONDENT:                  Ireland Fishing Limited

 

 

 

DECISION

The respondent in breach of contract has failed to pay the claimant sums due under his contract of employment.  The respondent shall pay the claimant £976.00 in respect of his loss.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge Bell  

                       

 

Appearances:

The claimant appeared in person.

The respondent was represented by Mr Brissaud, Director of the respondent company.

 

1.         The claimant in his claim complained that he had not received wages due to him for a period of one month and three weeks between 23 July 2016 and 25 October 2016, when he had worked for the respondent 60 hours each week at a verbally agreed rate of €1,600 per month.

 

2.         The respondent in its response resisted the claimant’s claim and contended that the claimant had worked part-time between 23 July 2016 and 25 October 2016, during which period it was agreed that he would receive £7.20 per hour.

 

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 sums due to the claimant?

 

If so,

 

What loss has the claimant suffered?

 

           

EVIDENCE

 

4.         The tribunal considered the claim, response, documentation from the respondent and heard sworn oral testimony from Mr Brissaud and from the claimant.

 

FINDINGS OF FACT

 

5.         In July 2016 the claimant who was living in Dublin telephoned in response to an advertisement for a waiter for the respondent’s restaurant in Lisnaskea, he spoke to Mr Brissaud and arranged to travel to Lisnaskea to commence working for the respondent.  The claimant subsequently travelled to Lisnaskea in or around late July 2016, worked for the respondent for two days, during which time he was provided food and accommodation by the respondent, before returning to Dublin.  It was in dispute whether Mr Brissaud on first contact with the claimant discussed on the telephone proposed terms and rate of pay, and the proposed rate of pay that was put to the claimant on his arrival.  I find on balance more probable Mr Brissaud’s evidence that he confirmed payment terms to the claimant before the claimant arranged to travel to Lisnaskea, rather than the claimant having been prepared to travel from Dublin to commence working for the respondent without any prior knowledge of the proposed terms of employment and that the rate put was £7.20 per hour sterling, due to the unpredictability of hours, together with accommodation, food and tips, and that these were the terms again confirmed by Mr Brissaud on the claimant’s arrival before commencing work.

 

6.         The claimant again returned and worked for the respondent in August 2016 for a total of 20 days.  The claimant generally commenced work at 2.00 pm or 3.00 pm and remained until customers had finished dining.  Customers usually finished dining earlier at the start of the week when the restaurant was quieter and later at weekends (midnight at the latest) when busy.

 

7.         The claimant continued to work for the respondent during September 2016.

 

8.         On 15 September 2016 the respondent paid the claimant €1,260 for which the claimant signed a receipt.  It was in dispute whether this was the only, or, one of two, payments made to the claimant by the respondent.  In the absence of any supporting documentation I find more probable the claimant’s evidence that only this one payment was made to him in relation to wages due and that no payment for work done in September and October was received.

 

9.         The last day worked by the claimant for the respondent was 23 October 2016.  On 25 October 2016 the claimant returned to Dublin and notified the respondent by text message, without prior notice, that he had left.  The claimant did not provide the respondent with a correspondence address.

 

10.      It was in dispute whether the claimant had worked 60 or 20 hours per week for the respondent during September and October 2016.  Neither party produced a documentary record, nor was able to give oral evidence as to the specific dates or times worked by the claimant.  I find on balance more probable the respondent’s evidence that the shift required to be worked by the claimant ranged between six to at most 10 hours in length and the claimant during September and October on average worked 20 hours per week over weekends (save for one week when he did not appear for work on a Friday), returning to Dublin often during the week.

 

11.      It was agreed on commencement of the claimant’s employment that the claimant would receive a share of tips received from customers.  In the absence of evidence to the contrary I accept the respondent’s evidence that tips were divided on a weekly basis and £40.00 was remaining due to the claimant in respect thereof when he left the respondent’s employment.

           

THE LAW

 

12.      Under the Industrial Tribunal Extension of Jurisdiction (Northern Ireland) Order 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 contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.

 

13.      Article 33 of the Employment Rights ( Northern Ireland) Order 1996 (ERO) provides that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment as provided therein.  Under Article 27 of the Employment (Northern Ireland) Order 2003, in proceedings before an Industrial Tribunal in respect of specified jurisdictions which include unauthorised deductions and payments, and a breach of employment contract and termination, if the tribunal makes an award to the employee in respect of the claim, and when the proceedings were begun, the employer was in breach of his duty to the employee under Article 33 of the 1996 Order, the tribunal shall increase the award by the minimum amount equal to two week’s pay to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount equal to four week’s pay instead.  The tribunal’s duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.

 

Applying the law to facts found

 

14.      On balance I find the claimant has suffered a loss arising from the respondent in breach of contract failing to pay him in respect of work done between 1 September 2016 and 23 October 2016 as follows:

 

            6 weeks X 20 hours @ £7.20                     =  £864.00

            And

            1 week X 10 hours @ £7.20                       =  £  72.00

            PLUS

            Tips agreed by the respondent due        = £  40.00

 

            TOTAL                                                              £976.00  

 

            I consider that given the timing and manner of the claimant’s resignation, the claimant having returned to Dublin and resigned by text message without any prior notice or providing to the respondent a correspondence address that there are exceptional circumstances such that it would be unjust to make an award under Article 27 of the Employment (Northern Ireland) Order 2003 for breach of Article 33 ERO.

 

CONCLUSIONS

 

15.      The respondent in breach of contract has failed to pay the claimant sums due. The respondent shall pay the claimant £976.00 in respect of his loss.



16.      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: