Kirk v JSM Couriers Ltd  (Application for Review)  (15 October 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	2383/01

APPLICANT:	John Kirk

RESPONDENT:	J S M Couriers Limited 

REVIEW DECISION
The unanimous decision of the Tribunal is that the applicant’s application for review is upheld for the reasons set out below and the Tribunal’s unanimous decision dated 1st day of March 2002 is amended as set out below.

Appearances:
The applicant was represented by Mr McKee, Barrister-at-Law, instructed by Messrs Donard King, Solicitors.
The respondent did not appear before the tribunal.

1.1	Reason for the decision to allow the review:

1.1.1.	The applicant at the original hearing of the application had stated in his evidence, which evidence was accepted by the Tribunal that his earnings where net £240.00 per week.  This figure differed from the figure of £190.00 per week net wages set out in the applicant’s application to the Tribunal dated 4th June 2001.  In his evidence to the Tribunal the applicant had explained that he did at first receive payment slips from his employer with his wages which were paid in cash.  However after a few weeks these payment slips stopped and the applicant was merely given £240.00 wages which he was assured were net wages.  He made no tax return of his own in respect thereof, his employer telling him that he would in due course receive appropriate payslips showing the tax deducted to arrive at the sum of £240.00.

1.1.2.	Unfortunately although announcing the decision at the Tribunal on the basis of net wages of £240.00 per week, when drawing up the Decision the Tribunal failed to notice that the figure of £190.00 set out in the Form IT1 had been changed during the evidence to a sum of £240.00 net and the calculations were accordingly made on the sum of £190.00 and not £240.00.  Accordingly the compensatory award granted to the applicant in the written decision was incorrect and the attached Schedule shows the correct compensation.

1.1.3.	Paragraph 3.5 of the Decision which refers to the gross wages is incorrect and should be deleted and 3.5 should now read as follows:-  

3.5 	“The applicant was paid £240.00 per week net.  The respondents made the appropriate deductions but gave the applicant no payslips.  The applicant throughout his employment considered the payment of £240.00 to be a net payment.  He had been promised that payslips would be brought up to date but this promise was never fulfilled.  He was aged 58 and instead of getting another driving job he was able to get a job as a caretaker in a school at £192.00 gross per week (net £157.00).  This job commenced on 1st July 2001 and this then is a difference of £83.00 per week in his net wages from that date.

1.1.4.	The calculations at the end of the Decision must also be altered to reflect this alteration in the net wages.  In all other respects the Decision of the Tribunal is upheld.

£	    £
Basic Award 3 weeks wages at £240.00 per week 
(the maximum allowed)  -      		 			720.00

Compensatory Award from 7 June 2001 –
1 July 2001 £240.00 x 3 weeks			        720.00
from 1 July 2001 – 14 December 2001
24 weeks x £83.00 per week				-    1,992.00

Future loss 3 years @ £83.00 per week		-  12,948.00
							     _______  15,660.00
Loss of Statutory Rights						  200.00
Holiday pay outstanding
5 months .. 5/12 of 5 weeks holiday					   
@ £240.00 per week			                                                  500.00

Failure to provide written reasons
Two weeks at £240.00 per week
(under Article 125 of the Employment
Rights (NI) Order 1996)						  480.00
								       £17,560.00
								         =======

Chairman:
Date: