THE INDUSTRIAL TRIBUNALS       

CASE REF:    3012/11

CLAIMANT:	Chris Keene

RESPONDENT:	RMG Motors Limited

DECISION

It is the decision of the tribunal that the respondent has breached the claimant’s contract of employment and shall pay the claimant £3,760.62.

Constitution of Tribunal:

Chairman (sitting alone):	Ms M Bell

Appearances:

The claimant did not appear and was not represented.

The respondent did not appear and was not represented.

1.	The claimant in his claim complained that the respondent had breached his contract of employment including that he had not been paid notice pay, reasonable relocation expenses, provided with the use of his company vehicle for 30 days from termination, paid resettlement expenses to the equivalent of thirty days rental of Belfast property, that he had receipts totalling £139.38 petty cash owed to him, had incurred £246.00 for car rental, £50.00 for fuel and £115.00 for the ferry to move back to England and that his phone bills totalling £625.00 were not paid.

2.	No response has been entered by the respondent.

3.	The claimant sent to the tribunal written submissions by letter dated 30 January 2012 setting out further details of his claim, enclosing a copy of his contract of employment and various receipts for monies claimed outstanding to him save for his mobile phone bills which he indicated were passed to accounts and meant to be repaid to him in his November wages but never received.  The claimant referred to receipts also handed in to and kept by the respondent for approximately £100.00 for additional fuel he had reimbursed staff for in October.  The claimant indicated that he would be unable to attend the hearing due to travel costs.

4.	The tribunal dealt with the proceedings under Rule 27 of the Industrial Tribunal Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

EVIDENCE

5.	The tribunal considered the claim, documentation and written submissions from the claimant.

ISSUES FOR TRIBUNAL

6.	The issues for the tribunal were as follows:-

	(i)	Has the respondent in breach of contract failed to pay the claimant monies due?

	(ii)	If so, what loss has the claimant suffered?

FINDINGS OF FACT

7.	The claimant was employed by the respondent as general manager from 15 July 2011 until his employment was terminated without notice on 25 November 2011.  The claimant in his claim stated ‘they have said the company is in liquidation but it is not’.  The claimant was paid approximately £2,400.00 net per month, being approximately £110.00 per day.

8.	There is no evidence before the tribunal to preclude the continuation of these proceedings by reason of insolvency.

9.	The claimant and respondent signed a contract of employment dated 15 July 2011 which included the following terms:-

		‘Salary:	£30,000 pa (Thirty thousand pounds per annum)

		Commission:	5% of all sales profit (net)

		Additional:	Use of New (demonstrator) Subaru business and personal use.

				All fuel
				Mobile phone (business use)

		Holiday entitlement:	25 days per annum plus bank holidays.
		………….

	The company to provide assistance with reasonable relocation expenses. In the event of dismissal or termination of employment, (30 days fully paid notice to be given in writing), the company shall continue to provide the above mentioned company vehicle for a period of thirty days from date of termination of employment.  The company shall also provide reasonable resettlement expenses and an amount equivalent to thirty days rental of the arranged accommodation in N.Ireland.’

10.	On 25 November 2011 when the claimant’s employment along with that of other staff, was terminated, as per the claimant’s written submissions, there was not enough cash to cover everyone’s wages and expenses and so his ‘money was left short with the understanding I was to sit down with them the next day to discuss my pay and compensation as well as the rent owed on the accommodation that was part of my package plus the cost of getting me back home and a vehicle as agreed in my contract’.

11.	The respondent did not pay the claimant thirty days notice on termination of his employment, provide the claimant ongoing use of a company car, pay any relocation expenses, pay thirty days rental of the claimant’s accommodation in Northern Ireland or pay him for holidays accrued due but not taken.
 
12.	The claimant had not used any of his annual twenty five days leave entitlement during his four months of employment.  His pro rata leave entitlement rounded up was nine days at the effective date of termination, 25 November 2011.

13.	The claimant paid £125.00 for the rental of a car between 25 and 28 November 2011 in order to move back home to Kendal in Cumbria and paid £115.00 for a Stena Line ferry ticket departing Belfast on 26 November 2011.

14.	The claimant was normally reimbursed for sundry expenses incurred by him on behalf of the respondent in the course of his employment each month on the production of vouching receipts.  Between 4 and 19 November 2011 the claimant incurred expenses totalling £129.66 for petrol, car parts and ramps, and a car wash in connection with his employment made up as follows on 
3 November £10.00, 4 November £10.00, £10.07 and £8.00, 12 November £25.02, 16 November £5.01, 17 November £4.17 and 19 November £27.38, £5.00, £6.96, £8.02 and £10.03.

THE LAW

15.	A breach of contract claim arising or outstanding on termination of an employee’s employment may be brought before an Industrial Tribunal under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 subject to exceptions therein including under Article 5 (b) a term imposing an obligation on the employer or the employee in connection with the provision of living accommodation.

APPLYING THE LAW TO FACTS FOUND

16.	The tribunal is satisfied on a balance of probabilities based on the claimant’s claim form, written submissions and vouching documentation provided, as follows:-

NOTICE PAY

17.	The respondent has in breach of the claimant’s contract of employment failed to pay the claimant thirty days notice pay in respect of which the claimant has incurred a loss of £2,400.

RENT

18.	No vouching documentation has been produced to prove any loss and the tribunal does not consider in any event that it has jurisdiction to deal with the claimant’s claim for rent on the accommodation that in the claimant’s words was part of his package in view of the exception under Article 5 of the 1994 Order.

RELOCATION EXPENSES AND FAILURE TO PROVIDE CAR

19.	The respondent in breach of the claimant’s contract of employment has not paid the claimant reasonable relocation expenses or continued to provide the use of his company car for thirty days after termination.  The tribunal is satisfied that the claimant has incurred a loss of £125.96 for car rental and £115.00 for ferry travel to return home to England.  The claimant indicated in his claim form that he incurred £50.00 of fuel costs whereas in his written submission that £70.00 of fuel costs were incurred for moving home.  No vouching documentation has been provided in respect of fuel costs claimed, nor for the greater figure of £246 for car rental referred to initially in the claim nor to prove any further actual financial loss incurred as a result of the respondent’s breach of contract.

HOLIDAY PAY

20.	The tribunal finds that the respondent has in breach of the claimant’s contract of employment failed to pay the claimant nine days holiday pay accrued due on termination of his employment and the claimant has suffered a loss of £990.00 in respect thereof.

EXPENSES

21.	It was an implied term of the claimant’s contract that he would be reimbursed in respect of sundry expenses incurred by him on behalf of the respondent in connection with his employment for which the claimant would provide vouching receipts.  The respondent in breach of contract has not paid the claimant and the tribunal is satisfied on the basis of receipts produced that the claimant has incurred a loss of £129.66 in respect of such sundry expenses incurred in November 2011.

MOBILE PHONE AND MONIES PAID TO STAFF

22.	Whilst the tribunal notes the claimant’s indication that bills were passed to the respondent the tribunal does not consider there is satisfactory evidence before it to satisfy it as to the £626.72 claimed due for business use by the claimant of his personal mobile phone nor likewise as to the entitlement to £100 claimed by the claimant for fuel reimbursed by him to staff in October 2011. 

CONCLUSION

23.	The respondent has breached the claimant’s contract of employment and shall pay the claimant £3,760.62.

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

Chairman:

Date and place of hearing:  7 February 2012, Belfast.

Date decision recorded in register and issued to parties: