IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

HUGH CORDEN

CLAIMANT

 

AND

 

 

PG PLUMBING (2014) LIMITED

RESPONDENT

 


 

TRIBUNAL JUDGMENT


 

 

Reference:                          [2017] TRE205

 

Hearing Date:                19th July 2018

 

 

Before:                                     Deputy Chairman M. Salter                                

 

Appearance:

For the Claimant:           in person

For the Respondent:     Mr. P. Graham, Managing Director

 

 

 

JUDGMENT

 

The Respondent is ordered to pay the Claimant £2,000.00 for breach of contract.

 

REASONS

 

References in 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.


INTRODUCTION

 

1.              These are my reasons for the judgment above.


 

BACKGROUND

 

The Claimant’s case as formulated in his JET1

2.              The 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 Respondent.

 

The Respondent’s Response

3.              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 poor work.

 

The Response to counterclaim

4.              The Claimant 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

5.              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 July 2018.


THE FINAL HEARING

 

General

6.              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 Graham.

 

Particular Points that were Discussed

Witness Evidence

7.              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.

 

8.              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

9.              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

10.          From the 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).

 

11.          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 needed.

 

Agreed Amount Owed

12.          From the 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

 

Witness Evidence

13.          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.

 




Bundle

14.          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.


SUBMISSIONS

 

Respondent

15.          The Respondent explained to me that:

 

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.

 

Claimant

16.          The Claimant 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.

 

MATERIAL FACTS

 

General Points

17.          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.

 

18.          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

19.          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.

 

20.          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.

 

21.          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.

 

22.          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].

 

23.          The Claimant 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.

 

24.          On 3rd 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.

 

25.          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.

 

26.          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.

 

CONCLUSIONS ON THE ISSUES

 

General

27.          Having 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?

28.          The Claimant alleges, and the Respondent accepts, that the Claimant was an employee of Respondent.

 

29.          I 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.

Issue 2: what are the terms of that contract?

30.          Both 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.

 

31.          The 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 £2,000.00.

 

32.          The 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.

 

33.          There 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 him.

 

34.          I will deal with each in turn.

 

Claimant’s term: is there a term?

35.          It 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.

 

36.          Without 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 owed.

 

37.          The 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.

 

38.          Looking 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.

 

39.          I 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 Fix”.

 

Claimant’s Term: has this been broken

40.          Having 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 to £5,000.00.

 

41.          This 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.

 

42.          Both 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”.

 

43.          Doing 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 £10,000.00.

 

44.          Accordingly, 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’s Counter Claim

45.          The 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.

46.          Unhampered 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 way.

 

47.          Accordingly, 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 Complaints

48.          I 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 its JEDT2.

 

Summary of Award

 

Damages for breach of contract

£2,000.00

TOTAL AWARD

£2,000.00

 

 

 

 

Embedded ImageMr, M, Salter, Deputy Chairman                                                    Date: Friday, 03 August 2018

           


Page Last Updated: 03 Aug 2018