THE INDUSTRIAL TRIBUNALS

CASE REF: 1122/06

CLAIMANT:		John Cope

RESPONDENT:	Hill Engineering Ltd

CLAIMANT:		Hill Engineering Ltd                                            CASE REF: 2404/06

RESPONDENT:	John Cope

DECISION

1122/O6

The unanimous decision of the tribunal is that the claimant’s complaints of breach of contract, unauthorised deductions from wages and for unpaid annual leave are dismissed.  The complaint of constructive dismissal was not accepted because the claimant had not complied with Rule 1(4)(g) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and therefore the complaints made by Mr Cope against Hill Engineering Ltd are dismissed in their entirety.

2404/06

The unanimous decision of the tribunal is that the claim for damages for breach of contract made by Hill Engineering Ltd by way of a counterclaim is upheld to the extent set out in this decision and Mr Cope is ordered to pay Hill Engineering Ltd the sum of £3,227.75.

The decisions in these two matters were given orally at the end of the hearing on 11 May 2007 under Rule 28(2) of the 2005 Rules.  What follows are the reasons for those decisions under Rule 30 (2).

Constitution of the Tribunal:

Chairman:		Mr N Kelly

Members:		Mr A Crawford
Mr B Johnson

Appearances:  

The claimant/respondent (Mr Cope) did not appear and was not represented.

The respondent/claimant (Hill Engineering Ltd) was represented by Mr Patrick Moore of Peninsula Business Services.

THE ISSUES

(1)	In Case No. 1122/06, the claimant (hereinafter referred to as Mr Cope) claimed that the following amounts were owed to him by the respondent and complained of unauthorised deductions from wages and breach of contract;

(a)	23 days pay comprising notice pay and holiday pay
@ £153.84 per day							=  £3,538.32

(b)	3% of salary by way of a pension contribution			=  £1,836.96

(c)	unpaid expenses claims						=  £4,945.84

(2)	In Case No. 2404/06, the claimant (hereinafter referred to as Hill Engineering) complained of breach of contract and counterclaimed for damages in respect of the following matters;

(a)	Six days sick pay paid between 21 July 2006 and
31 July 2006								=  £923.10

(b)	A laptop computer retained by Mr Cope				=  £980

(c)	Two months lease payments on a company vehicle
retained by Mr Cope						=  £970

(d)	Unauthorised use of the company fuel card			=  £173.95

(e)	Unauthorised use of the company credit card			=  £ 17.97
and									    £472.73

THE LAW

(3)	Under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, an industrial tribunal can hear and determine claims and counterclaims for the recovery of damages including claims for breach of contract which arise or are outstanding on the termination of employment.

An employee can complain of unauthorised deductions from wages under Part IV of the Employment Rights (Northern Ireland) Order 1996.

RELEVANT FINDINGS OF FACT AND DECISION

(4)	Mr Cope was employed by Hill Engineering as a sales manager from 1 May 2005 until 21 July 2006.

(5)	Mr Cope telephoned the Tribunal office on 5 May 2007 and claimed that he was working in America. He further claimed that he had only just found out that the two matters had been listed for hearing on 11 May 2007.  He asked for a postponement.  He subsequently e-mailed the Tribunal office on 9 May 2007.  When these matters had been previously listed for hearing on 25 January 2007, Mr Cope had signed in to Longbridge House but could not be found when the hearing was due to commence.  No satisfactory explanation has been given for this behaviour.  In view of this behaviour and his subsequent failure to keep the Tribunal informed of his current address, the tribunal decided to proceed to dispose of the proceedings under Rule 27(5).

(6)	The tribunal heard evidence from Ms Pearl Campbell, the financial controller of Hill Engineering and considered documentation furnished by both parties.

MR COPE’S CLAIM - 1122/06

(7)	Mr Cope was due to return to work from holiday on 24 July 2006.  He sent two text messages on that day indicating that he was suffering from ulcers and that he would not be able to attend work for two weeks.

On 30 July 2006, he complained in an e-mail to the respondent about his expenses claims and indicated he was thinking of putting in his notice.

(8)	Ms Campbell subsequently found out that Mr Cope had in fact started work for a competitor, Connect Engineering, on 24 July 2006, the day he claimed to be commencing sick leave.  The tribunal has considered and has accepted as genuine, a letter from Connect Engineering to Ms Campbell, which confirms the start date and the registration number of the company vehicle supplied by Connect to Mr Cope - AEZ 9103.  The tribunal also accepts Ms Campbell’s testimony that she confirmed these details in a telephone conversation with Connect. 

(9)	Mr Cope did not return to work with Hill Engineering and the tribunal concludes that he resigned without notice to take up employment with Connect Engineering.  His claim for notice pay is therefore dismissed.

(10)	Mr Cope was entitled under the terms of his contract to 16 days holidays in the period from 1 January 2006 to 21 July 2006.  The tribunal has considered his written submission but on the basis of his own leave calendar and Ms Campbell’s evidence concludes that he had already taken 18 days leave in this period. The tribunal does not accept his unsupported assertion that he had accumulated leave from the previous leave year. The claim for unpaid holiday pay is therefore dismissed. 

(11)	Mr Cope’s contract of employment and associated documentation provided that Hill Engineering would pay 3% of salary into a personal pension fund.  The tribunal accepts the evidence of Mrs Campbell that Hill Engineering has offered to do precisely that and that the necessary details have not been supplied by Mr Cope.  It is up to him to identify a personal pension fund.  He cannot insist under the terms of the employment contract that the pension contribution should be paid directly to him.  That part of his claim is also dismissed.

(12)	Mr Cope has not provided any documentation or evidence in relation to the expenses claims which he alleges were not paid.  Ms Campbell gave clear and convincing testimony that no valid expenses claims remained outstanding.  That remaining part of his claim is therefore also dismissed.

HILL ENGINEERING’S COUNTERCLAIM - 2404/06

(13)	The tribunal has concluded that Mr Cope commenced employment with Connect Engineering on Monday 24 July 2006 and that he told Hill Engineering on the same day that he was sick and unable to work.  The six days sick pay totalling £923.10 was therefore, to use a neutral term, improperly claimed and received by Mr Cope in breach of his contract of employment.  The counterclaim for damages in this respect is upheld.

(14)	The tribunal accepts the unchallenged evidence of Ms Campbell that Mr Cope has retained a laptop computer supplied by Hill Engineering.  The tribunal concludes that this item had been supplied by Hill Engineering for business use and that it was a necessarily implied term in the contract of employment that all such items would be returned on the termination of employment.  The only evidence before the tribunal relating to the value of that item was that it had been purchased in or about May 2005 for approximately £980.  Allowing for depreciation at 25% per annum, the tribunal concludes that the value of the laptop computer in July 2006 was approximately £670 and awards damages for breach of contract in that sum.

(15)	Mr Cope did not return his company vehicle to Hill Engineering and it was eventually recovered at the end of September 2006.  The tribunal concludes that it was a necessarily implied term in contract of employment that a company vehicle should be returned promptly on the termination of employment.  The tribunal therefore awards damages for breach of contract of £970 being two months lease payments at £485 per month.

(16)	The tribunal has examined the fuel card invoices relating to Mr Cope and has heard the evidence of Ms Campbell.  Three separate purchases of fuel were made by Mr Cope on Hill Engineering’s account for the vehicle supplied to him by Connect Engineering.  The tribunal concludes that it was a necessarily implied term in the contract of employment that the fuel cards used by Mr Cope would only be used for legitimate business expenditure.  The illegitimate use of these cards caused losses totalling £173.95 and damages are awarded in this amount.

(17)	The tribunal concludes that Mr Cope used his company credit card to pay for a flight from Alicante for a family holiday and that he also misused the credit card to pay for a personal credit checking service.  The use of the credit card in these payments was in breach of contract.  Damages of £472.73 and £17.97 respectively are awarded to Hill Engineering.

(18)	The total amount which Mr Cope is ordered to pay Hill Engineering is £3,227.75.

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

CHAIRMAN:			

Date and place of hearing:	11 May 2007, Belfast.

Date decision recorded in register and issued to parties: