IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
PG PLUMBING (2014) LIMITED
Reference:  TRE205
Hearing Date: 19th
Chairman M. Salter
For the Claimant: in
For the Respondent: Mr.
P. Graham, Managing Director
The Respondent is ordered to pay the Claimant
£2,000.00 for breach of contract.
square brackets below are unless the context suggests otherwise to the page of
the bundle. Those followed by a with a § refer to a paragraph on that page
and references that follow a case reference, or a witness’ initials,
refer to the paragraph number of that authority or witness statement.
These are my
reasons for the judgment above.
The Claimant’s case as formulated in his JET1
Claimant’s complaint, as formulated in his Form JET1, presented to the
tribunal on 24th November 2017 is, in short, he is owed a sum of
money, he says £7,000.00 but has limited his claim to £5,000, which
the Respondent owed him for work he undertook as a plumber employed by the
The Respondent’s Response
In its Form JEDT2
the Respondent accepted the Claimant was its employee, but denied that the
money claimed was owing and, by way of a counter-claim, claimed that, in fact,
the Claimant was obliged to pay it money owing to the costs of rectifying his
The Response to
repeated his claim in his defence to counterclaim, which was received on 18th
December 2017. He also challenged the basis of the Respondent’s
calculations of the costs of remedying his allegedly defective work.
Relevant Procedural History
The matter came
before Deputy Chair Davies for a Case Management Meeting during which a list of
issues was produced, and the matter set down for a Final Hearing on 19th
THE FINAL HEARING
The matter came
before me for final hearing. The hearing had a one-day time estimate. The
Claimant represented himself and the Respondent was represented by Mr. Paul
Particular Points that were Discussed
At the outset of
the hearing the Claimant objected to documents being admitted which were
effectively witness statements, produced by the Respondent, and contained
within their bundle, being admitted in evidence. I should point out the
claimant himself had not produced any form of witness statement, yet he wanted
to give evidence.
I explained to
the parties the options open to me considering the lack of witness evidence
and, despite the state of the witness evidence, both parties wished to proceed
with the Final Hearing.
Litigants in person
Both parties were
litigants in person and so I explained to them that I would not conduct their
cases for them or cross-examine witnesses on their behalf and that they had to
present their cases to me.
Identity of the Respondent
paperwork it appeared that the Respondent was referred to by various, albeit
similar names, for instance in the JEDT1 the Respondent is identified as Paul
Graham PG Plumbing Limited; in the JEDT2 the identity is “PG Plumbing
(2014) Ltd; in correspondence it is identified as “PG Plumbing and
Heating Ltd” [Letter from Respondent to Claimant] or “PG Plumbing
Ltd” [letter from ATC & Son (Electrical Contractors) Ltd in
Respondent’s bundle] or “PG Plumbing and Heating (2014)
Limited” (on various invoices in Respondent’s bundle).
I asked Mr. Graham
what the correct identity of the Respondent was, and he informed me it was PG
Plumbing (2014) Limited as set out in the JEDT2. I therefore amend the name of
the Respondent to “PG Plumbing (2014) Ltd” if such an amendment is
Agreed Amount Owed
paperwork it appeared the Respondent agreed that even if it succeeded entirely
on its counterclaim and defence to the Claimant’s claims, it owed the
Claimant the sum of £430.00. Mr Graham confirmed this was correct. I
accordingly ordered that sum to be paid.
DOCUMENTS AND EVIDENCE
I heard evidence
from the Claimant on his own behalf. I heard evidence from Mr. Graham on behalf
of the Respondent. I had also been provided with documents that are,
effectively witness statements, from Joe Walsh, Managing Director of ATC &
Son (Electrical Contractors) Limited and Ms. L Le Herissier on behalf of the
Respondent. I gave such weight as I thought appropriate for those witnesses as
they did not attend to give evidence.
To assist me in
determining the claims I have before me today two separate bundles: one from
the Claimant and the other from the Respondent. The Respondent’s bundle
is unpaginated. I have identified these in the judgement below as [CX] and [RX]
where “X” is the page number, or a method of identifying the
relevant document where there is no page number.
The Respondent explained to me
All of this could have been
avoided as my partner at the business has never had any issues with the clients
re pay and employed other people in the past and never an issue with money. I
think I was fair to Mr. Corden, he had other work commitments and as a fair
employer I let him go and finish his commitments on other contracts and so
nothing personal or anything like that as far as I was concerned we were as
fair as possible, we were running a business, but when things are pointed out
to us by the water board.
asked me to consider
The work at Springside I put in
4-5 weeks there and I only received £3k to date, there was only 2-3 days’
work to do max 4, to him to withhold 7k if job had been done by me but 5k to
He withheld my wage, I went a
full week, without pay, one of other people quit as not paying him properly.
From the evidence
and submissions, I made the following finding of fact. I make my findings after
considering all the evidence before me, considering relevant documents where
they exist, the accounts given by the Claimant and Mr. Graham in evidence, both
in their respective statements and in oral testimony. Where it is has been
necessary to resolve disputes about what happened I have done so on the balance
of probabilities taking into account my assessment of the credibility of the
witnesses and the consistency of their accounts with the rest of the evidence
including the documentary evidence. In this decision I do not address every
episode covered by that evidence, or set out all of the evidence, even where it
is disputed. Rather, I have set out my principle findings of fact on the
evidence before me that I consider to be necessary to fairly determine the
claims and the issues to which the parties have asked me to decide.
The facts are largely
uncontroversial, albeit the question of whether the relevant terms had in fact
been breached is a matter that could require resolution.
The Respondent is
a company providing plumbing services. The Respondent employed the Claimant to
work on two sites where it was engaged. The first site was La Scanie. At this
site the claimant was paid an hourly wage according to the hours he spent
there. The Claimant makes no complaint about the wages he received for his work
on this site.
The second site
was Springside. Here the Claimant and Respondent had entered a verbal agreement
that the Claimant was to be paid on a price work basis of £5,000.00 each
for two houses the Respondent was engaged upon there, making a total of
£10,000.00. The Claimant was to receive this on a percentage basis of the
works complete, with any balance paid upon completion. Accordingly, if the work
was completed quickly he would, in real terms, stand to gain rather than if the
work took substantially longer when his £10,000 maximum would not be as
rewarding for the time taken.
At both sites the
Claimant would provide his own tools, but the Respondent provided everything
else including fittings, flux, solder, clips, compression fittings, all
insulation, all the soil piles and glue. I have seen several invoices for
around the time the Claimant started work for the Respondent where the
Respondent purchases lead-free solder.
On the 29th
August 2017 the Claimant received £3,000.00 of the £10,000 from the
Respondent. Therefore, he had a maximum of £7,000 owed to him for when
the work was completed. [C4.3, and in Respondent’s bundle third tab].
attended Springside and undertook various works. It is agreed that Mr Graham
also attended Springside on several occasions and witnessed the
Claimant’s work and did not raise any concerns over the work. The
Claimant contends some of the work he undertook was “Second Fix”
and that 80% of the work had been done by the time he was to leave the
Respondent’s employment. The Respondent contends that 80% of the First Fix
had been completed as the pipework has been completed to the bathrooms, the
shower mixers, and pipework in the cylinder cupboards.
October 2017 the Claimant was not paid his wages for the week [R 3rd
Tab, 3rd Document] and so he resigned on that date [JEDT1 box 3.1].
After his resignation the Respondent says it discovered, because of an
inspection by Michael Raine, an inspector for the Jersey Water Works [C 4.2],
that the Claimant’s work at Springside was not up to standard and that he
had used leaded solder in the pipework of the two units resulting in the
Respondent having to undertake remedial works to put right, what is says are,
the Claimant’s errors. There was also some lesser rectification work required
at La Scanie.
On the 1st
November 2017 the Claimant wrote to the Respondent seeking payment of
£3,000 rather than the £5,000 “the work was worth” [C
4.1]. This elicited a response on 7th November 2017 from the
Respondent [C4.2] in which the Respondent set out its position that the full
amount was only payable on completion of the works and that once the cost of
the remedial work was calculated this would be forwarded to the Claimant.
claimed the money he claims was owed to him, he says it was the £10,000
figure as the works were complete. The Respondent denied this, saying the work
he had completed was first fix only and so only £5,000 was owed to him,
from which he had already drawn £3,000 and, when the cost of the remedial
works was taken into account, left him being owed £430.
regard to the findings of relevant fact, applying the appropriate law, and
taking into account the submissions of the parties, I have reached the
following conclusions on the issues the parties have asked me to determine.
Findings on the Issues
Issue 1: Was there a
contract of employment?
Claimant alleges, and the Respondent accepts, that the Claimant was an employee
have seen no document or any written evidence of such a contract, and so I
accept the common view the Claimant was employed by the Respondent.
2: what are the terms of that contract?
parties allege there are terms of the contract they rely upon. As I say there
is no written document and so I must see whether the term is in the contract
and, if so, what is the term’s exact ambit.
Claimant alleges he is owed £10,000.00 for work done on the two
properties in Springside. He, however, limits his claim here to £5,000,
having received £3,000 already and agreeing to effectively write off
Respondent accepts that there is a term in the contract for payment of work
done, however, it says the amount owed is, in fact £5,000.00 from which
the Claimant has already received £3,000.00. It seeks to offset by way of
counter claim the cost of remedying defects in the claimant work. It accepts
that £430 is owed to the claimant being the £2,000 less the
£1,570.00 cost of remedying the work.
are, therefore two potential terms I need to consider: for the claimant whether
the payment owed is for the full £10,000 and, for the Respondent, whether
there is a right to offset money it has paid to rectify what it says is the
claimant’s inadequate quality of work against money it admits it owes
will deal with each in turn.
term: is there a term?
is for the Claimant to satisfy me, on the balance of probabilities that there
is a term in the contract for payment of the full £10,000.00.
any written document it is a challenging task and doing the best I can on the
evidence I have before me I can see there is fundamental dispute between the
parties as to whether the work that had been done was “First Fix”
(the Respondent’s case) or “Second Fix” (the Claimant’s
case). If the former, then the Respondent accepts it owed the Claimant
£5,000.00. If the Claimant is right the full £10,000 was in fact
Respondent accepts that at the time the Claimant left site he was owed
£5,000.00 for completion of the works to date. They dispute that the work
he had undertaken was “Second fix” work and so he was entitled to
payment of the £10,000.
at what material I have it would appear that the parties agree upon successful
completion of the work the Claimant would receive £10,000.00 (R’s
letter of 17.11), this is a document produced by the Respondent in response to
the Claimant leaving the Respondent’s employment but is a contemporaneous
document and one to which objection has not been taken.
am content, therefore that the Claimant has shown there was a term entitling
him to be paid £10,000 on completion of work in the “Second
Term: has this been broken
found this term exists I then have to see whether it has been broken, i.e. has
the claimant proven to me that the work he undertook was “Second Fix: and
so, he is entitled to payment of £10,000. The burden being on the
Claimant. Or was the work first fix, as the Respondent contends, limiting him
being for a not insubstantial sum of money, I was surprised at just how little
evidence either party produced to show what work had been done and where that
fitted into it being First or Second fix.
parties were strident in their views as to the nature of the work done and what
“fix” it fell into. Both parties asserted their positions with no
contemporaneous or documentary evidence at all. It effectively boiled down to
the Claimant saying the work he did was “second Fix” and the
Respondent saying it was “First”.
as best I can on the limited evidence the parties have put before me I do not
find that the Claimant has shown, on the balance of probabilities, that the
term had been broken: i.e. that he was entitled to payment of the
based on the conceded case, I consider that the Claimant has established he was
owed a maximum of £5,000, from which he had already received
£3,000.00 leaving a potentially outstanding amount of £2,000.00
which will be subject to my decision on the Respondent’s counterclaim.
Respondent contends that it is entitled to offset from the £2,000 the sum
of £1,570 it incurred in having to repair work done by the Claimant. Here
the burden of proof is on the Respondent, again on the balance of probabilities.
by documentary evidence supporting the Respondent’s position I do not
find they have satisfied me on the balance of probabilities, that such a term
was incorporated in the Claimant’s contract of employment. Again, the
Claimant denied the existence of such a term and so the matter boiled down to
one person’s word against the other with no supporting evidence either
the Respondent has failed to satisfy me on the balance of probabilities, that
it has or had the right to deduct the sum of £1,570 from the Claimant.
Conclusions on the
therefore conclude that the Claimant was, at the time his employment ended,
entitled to payment of the sum of £5,000.00 in total of which he had
already received £3,000.00 leaving £2,000 outstanding. The
Respondent has failed to show it had the right to deduct any money from this
amount. Therefore, I order the Respondent shall pay the Claimant the total of
£2,000, which, for the avoidance of doubt, includes the £430 the
Respondent accepted it owed the Claimant at the outset of the hearing and in
Summary of Award
for breach of contract
Mr, M, Salter, Deputy Chairman
Date: Friday, 03 August 2018