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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Reid v R & K Haulage Ltd [2010] NIIT 07394_09IT (24 February 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/07394_09IT.html Cite as: [2010] NIIT 07394_09IT, [2010] NIIT 7394_9IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 07394/09
CLAIMANT: Brian Reid
RESPONDENT: R & K Haulage Ltd
DECISION
The decision of the tribunal is that the respondent owes the claimant £3,291 in respect of unlawful deductions from wages and breach of contract as set out in this decision.
Constitution of Tribunal:
Chairman (Sitting Alone): Mr N Kelly
Appearances:
The claimant appeared in person and was unrepresented.
The respondent did not enter a response and did not appear.
Relevant Findings of Fact;
(1) The respondent is a limited company, R & K Haulage Ltd, a small haulage contractor based in Portadown. The claim originally named Mr Ryan Clements as respondent. Mr Clements is a Director of the limited company. The title of the claim is amended to show R & K Haulage Ltd as respondent.
(2) The claimant is a HGV driver, living in Preston.
(3) The claimant was approached by Mr Clements and offered work in the summer of 2009. The claimant started work for the respondent, as a HGV driver, on or around 29 June 2009.
(4) The respondent agreed to pay the claimant £500 net for a five day week from Monday to Friday and £100 for any shift on a Saturday or Sunday. This was to be paid every four weeks in arrears.
(5) The respondent told the claimant that national insurance and income tax deductions would be made on his behalf “at the end of the year”. The claimant stated that this type of arrangement was not uncommon with haulage companies operating in Northern Ireland and that he himself had been engaged on similar terms on a previous occasion by a different employer.
(6) On 27 September, the claimant was told by Mr Clements that the respondent was going to close down it’s “English operation” for the time being, but that the respondent might have more work for him before Christmas. He was asked to do a final nightshift and did so. No notice was given to him either orally or in writing of his dismissal. He was not given pay in lieu of notice.
(7) The claimant was told that his wages would be paid into his bank on Friday, 2 October 2009. There had been a continual pattern of wages being paid late, not being paid in full and of wages cheques being returned by the bank marked “refer to drawer”. On this occasion, despite initial promises, the respondent did not pay the wages due and more recent telephone calls and e-mails have been unanswered.
(8) The claimant states that the respondent is still in business and is still operating normally. There is no indication to the contrary.
(9) The normal pattern of pay (when paid) was either a cheque for £400 together with £100 in cash or a cheque for £300 together with £200 in cash.
(10) The claimant was underpaid wages by £200 in respect of two weeks in August and September. Cheques for £400 and £500 respectively for the weeks ending 19 September and 26 September were returned to the claimant by the bank marked “refer to drawer” and the claimant’s wages of £300 for 27 – 29 September were never paid. The claimant was not paid for six weekend shifts amounting to £600.
(11) The claimant was charged £63 in respect of various charges by his bank on each of seven occasions between 24 July and 30 September 2009 when wages cheques “bounced”. He was also charged a total of £150 by his bank on various occasions on which direct debits failed during this period as a result of the late payment or non-payment of wages.
(12) The claimant prepared his claim form without legal assistance and specified that his claim was a claim for unauthorised deduction of wages and also a claim relating to non-payment of wages. He stated that “my claim is for wages outstanding, wages that were short, overtime and all my bank charges and a week’s money for period of notice”. I therefore regard this claim as a claim for both unauthorised deduction for wages and breach of contract.
DECISION
(13) Where an employee actively participates in an illegal contract, an Industrial Tribunal will not assist that employee to enforce that contract. As the Court of Appeal stated in the case of Hall v Woolston Hall Leisure Ltd [2001] ICR 99;
“There can be no doubt but that under English law, a claim, whether in contract or in tort, may be defeated on the ground of illegality or, in the Latin phrase, ex turpi causa non oritur actio.”
(14) I expressed concern during the course of the hearing that an arrangement whereby part of the wages are paid by cheque and part of the wages are paid in cash and where there is no wage slip and no regular deductions in respect of national insurance and income tax, could be construed as an illegal contract. However, having observed the claimant giving evidence and having heard supporting evidence from one of his colleagues, James Schofield, I am not prepared to take the drastic step, in the circumstances of this case, of excluding the claimant from remedy. There had been no response and no evidence from the employer in this case. On the balance of probabilities, I accept that the claimant expected the statutory payments in respect of national insurance and income tax to be made by the respondent.
(15) The tribunal can hear a claim in respect of unauthorised deduction from wages and can determine a breach of contract claim on the termination of employment. In respect of breach of contract, the ordinary rule set out in Hadley v Baxendale [1854] 9 Exch 341 is;
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, ie, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
(16) I am satisfied that the respondent knew or ought to have known that non-payment of wages, whether as a result of a failure to make any attempt to pay the relevant wages or as a result of a wages cheque being returned by the bank marked “refer to drawer”, would result in the claimant facing financial difficulties including the imposition of various bank charges. I therefore conclude that the claimant is entitled to reimbursement of these sums in respect of his breach of contract claim.
(17) The claimant is entitled to the following sums in respect of unauthorised deduction from wages and breach of contract;-
One week’s notice £500.00
Underpaid wages £400.00
Various bank charges £591.00
Unpaid weekend shifts £600.00
Unpaid wages £1,200.00
Total £3,291.00
(18) This is a relevant decision for the purposes of the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 11 January 2010, Belfast.
Date decision recorded in register and issued to parties:
