THE INDUSTRIAL TRIBUNALS

CASE REF:	7184/09

CLAIMANT:			Darrin Johnston

RESPONDENT:		Mercol (Mervyn Coulson)

DECISION
The decision of the Tribunal is that the respondent owed the claimant £1,134.60 in unpaid wages and the Tribunal orders the respondent to pay the same to the claimant.

Constitution of Tribunal:
Chairman (sitting alone):		Ms P Sheils

Appearances:
The claimant appeared in person and was represented by his wife, Mrs J Johnston.
The respondent did not appear and was not represented.

The claim and the response

1.	The claimant lodged a claim on 8 October 2009 claiming breach of contract in relation to outstanding unpaid wages.  

2.	The respondent did not present a response.

The hearing

3.	The respondent was not present at the hearing.  Accordingly, the Tribunal considered Rule 27, Paragraph 5, of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  Paragraph 5 states:-

“If a party fails to attend or to be represented (for the purpose of conducting the party’s case at the hearing under Rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or adjourn the hearing to a later date.”

	Paragraph 6 of the same Rule indicates:-

“If a tribunal wishes to dismiss or dispose of proceedings in circumstances described at Paragraph 5 it shall first consider any information in its possession which has been made available to it by the parties.”

4.	The Tribunal considered the Office file and noted and took account of a number of points.  The first of these was that the respondent had not presented a response to the claimant’s claim form.  The second point of note was that this case had previously been listed for hearing on 15 December 2009 and the respondent had been advised of that date of hearing.  The respondent made no effort to contact the Office to indicate whether he would attend on that date.  

5.	The Tribunal also noted that the hearing on 15 December 2009 was postponed due to the illness of the claimant.  The tribunal noted that the respondent had been made aware of this postponement and was advised of the new date of hearing on 8 January 2010.  

6.	The Tribunal noted that the respondent had contacted the Office of the Tribunals at on the morning of the hearing of 22 February 2010.  The respondent advised the clerk that he would be unable to attend today’s hearing as he had to go to a funeral that day.  The respondent indicated that if the case could be postponed that would be great but that if it did go ahead then “so be it”.  Mr Coulson indicated to the clerk that he wished to contest the case, that the claimant was not entitled to any money and that the company was winding-up.

7.	The Tribunal conveyed this information to the claimant.  The claimant indicated that other former employees of the respondent were facing the same difficulties as he was in relation to this respondent and in fact one of them, Mr Trevor Bell, had advised the claimant that Mr Coulson, “never weighed in” for his tribunal and Mr Bell warned the claimant that the respondent was unlikely to turn up for the claimant’s hearing either.

8.	The Tribunal considered all the information it had in its possession and decided to dispose of the proceedings without the respondent.  

The facts

9.	The Tribunal found the following facts proven on the balance of probabilities:-

(1)	The claimant, whose date of birth is 12 October 1969, commenced employment with the respondent on 15 June 2009.  At his interview with the respondent, at which another sales representative was present, it was agreed that the claimant would be paid £20,000 per annum plus a monthly bonus if targets were met.

(2)	When the claimant commenced working for the respondent he worked in the stores.  These had been in a state of some confusion and in order to prepare for the sales job ahead the claimant and his colleague tidied up the stores for that first week.  The claimant started his sales work on 22 June 2009.  However, between 15 June 2009 and the end of June 2009 the claimant received no wages.  Eventually the claimant received a fortnight’s wages on 6 July 2009 and this cheque cleared on 10 July 2009.  

(3)	The respondent company was closed for a week over the July holidays.  However, during that week the claimant worked in the stores to avoid losing either holiday or wages.  The claimant was back on the road selling on 20 July 2009.  

(4)	The claimant was due wages in or about 13 July 2009, but did not receive these.  Eventually the claimant got a fortnight’s pay, by cheque, dated 30 July 2009 which took until 5 August 2009 to clear.  

(5)	The claimant complained to the respondent about the erratic way in which he was being paid and explained to the respondent that he, the claimant, had direct debits and mortgage repayments to meet.  The claimant stated that his complaint was met with a retort by the respondent saying, “how did you manage to meet these when you were on Jobseekers Allowance”.

(6)	During his employment with the respondent the claimant was increasingly snubbed by the respondent’s wife and daughter.  The claimant stated that he received no support from the office in relation to indication of availability of stock or on pricing.  

(7)	The claimant stated that he became aware from customers that the company had a bad reputation for not fulfilling orders.  The claimant stated that he found it increasingly difficult to fulfil orders as there was no stock available.  The claimant also became aware that customers were familiar with the respondent’s bad practices and on occasion warned the claimant to ensure that he got his wages.  

(8)	In August 2009 the claimant was told, on a number of occasions that his salary had been paid into the bank.  However, when the claimant checked the position he discovered that there were no wages in the bank and he approached the respondent to query this.  At this point the respondent told the claimant that he would have to go on a commission only basis instead of his salary.  At this point the claimant left the company.  

(9)	The claimant later contacted the respondent and asked him for all monies owed from June 2009. He received a letter from the respondent dated 17 August 2009.  This letter included a document ‘Provisional Letter of Appointment’ which the respondent claimed gave him the right of ‘claw back of your (the claimant’s) salary’.  The letter went onto state the following:-

“Your total sales for the eight weeks you acted as sales representative for our company totalled £3,748.84.  Given that the sales targets for this period, as agreed by, was £36,950 (20K per calendar month); this represents a shortfall of 90%.

As a claw back of 90% would bring your earnings below the minimum wage we have been advised by the Labour Relations that your wages should be re-calculated at the minimum wage of £214.88 per week (37.5 hours @ £5.73 hours) this therefore gives you the month of June working two weeks and two days.  July is a month calculated at 4.33 weeks and August one week and four days.  

During your period of employment you have accrued four days holiday, however as you had holidays on 13 and 14 July 2009 and also 3 August and 4 August.  This clears your holiday entitlement and no further payment is due in relation to holiday pay.  You will find enclosed your three revised pay-slips calculated on the above basis with a final salary due for £392.74.  These funds have been transferred directly to your bank.

I trust you will find the above in order and regard you are able to fulfil the sales demands required of you.  I wish you well for the further and hope you find employment more suited to your requirements.”

(10)	The claimant subsequently wrote to the respondent by letter dated 26 August 2009 and indicated that the monies owed to him were £1,134.60.  The claimant refuted that he had taken holidays in July.  

(11)	The respondent replied to that letter on 31 August 2009.  In this letter the respondent stressed that the claimant had left without notice, having refused to have any discussion with the respondent regarding work and level of sales.  The respondent went on to add that the claimant had “falsified your report sheets and made claims which can be proven to be false from the data recorded by the GPS tracker”.  

(12)	This letter concluded with the words “it should also be noted that your job position remains vacant and should you wish to avail yourself of a position in sales the opportunity remains open for discussion”.  The letter had a postscript which stated “there is also the situation regarding the fax machine which you said you would return.  You have had the opportunity to return this on at least two occasions but to date you have failed to do so.  In addition I would remind you that you still owe us for the fuel content of your private mileage as recorded by the GPS tracker.”

(13)	The claimant stated that he had never seen the document entitled ‘Provisional Letter of Appointment’ until it had been enclosed with the respondent’s letter.  The tribunal noted that the document in question was on two pages, the first of which was entirely different from the second.  The Tribunal accepted the claimant’s statement that he had not seen this document before it had been enclosed in correspondence sent to him after his employment had ended.

(14)	The claimant further refuted that the sales target of £36,095 was ever agreed between himself and the respondent.  

(15)	The claimant also refuted that he had at any stage falsified his report sheets or made claims that were false.  The claimant added that on the infrequent occasion that the claimant used the company car for private mileage this was known to the respondent and accepted by the respondent.  The claimant refuted the suggestion that he owed the respondent any private mileage. The claimant confirmed that he had since returned the fax machine.  

The Tribunal’s conclusions

10.	The Tribunal accepted that the claimant had not seen the document entitled ‘Provisional Letter of Appointment’ before it was enclosed in correspondence sent to him by the respondent.  The Tribunal also accepted that the claimant had not falsified report sheets or made false claims.  In reaching this latter conclusion, the Tribunal noted that the respondent made reference to the falsification of report sheets and false claims in a letter that went on to add that “your job position remains vacant and should you wish to avail yourself of a position in sales the opportunity remains open for discussion”.  The Tribunal concluded that the respondent had included an allegation of falsification of report sheets to intimidate the claimant as it seems unlikely that if the claimant had falsified report sheets the respondent would be prepared to offer him his job back.

11.	The Tribunal accepted that the claimant was owed the outstanding monies as stated by him, £1,134.60.    

12.	Accordingly, the Tribunal concludes that the claimant is owed £1,134.60 and orders the respondent to pay the claimant this amount.  

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

Chairman:

Date and place of hearing:   22 February 2010, Belfast

Date decision recorded in register and issued to parties: