Cartin vs Declan Coll trading as CPH
| Jurisdiction | Northern Ireland |
| Judgment Date | 27 July 2011 |
| Respondent | Declan Coll trading as CPH |
| Docket Number | 00497/11IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 497/11
CLAIMANT: Odhran Cartin
RESPONDENT: Declan Coll trading as
CPH Plumbing and Heating
DECISION
The decision of the tribunal is the claimant is awarded a total of £220.00 in respect of his claim for holiday pay and £1,221.00 in respect of his claim for unpaid wages. The respondent is ordered to pay to the claimant the total sum of £1,441.00.
Constitution of Tribunal:
Chairman: Ms M Sheehan
Members: Mr E Millar
Mr S Pyper
Appearances:
The claimant represented himself.
The respondent did not appear.
The Claim
1. The claimant claimed for holiday pay and outstanding wages which had accumulated during his apprenticeship together with a claim for damages resulting from breach of contract and/or alternatively an entitlement to the national minimum wage.
Response to the Claim
2. No response to the claim was presented.
3. The claimant gave evidence on his own behalf and provided two documents for consideration.
Findings of Fact
- The claimant commenced a pre-apprenticeship course in 2008 with the North West College. His date of birth is 18 May 1991. In his second year of the course he started to seek a work placement. A delivery agreement relevant to the claimant’s placement with the respondent was produced at hearing which was dated 10 May 2010. The claimant received a £40 training allowance from May 2010 to August 2010 but that allowance came to an end on 1 September 2010. From 1 September 2010 the claimant understood he would be in his second year of apprenticeship. He alleged it was agreed he was to receive from the respondent the second year apprenticeship rate of £30.70 per day. This was under an oral agreement
- In his Claim Form at paragraph numbered 5.4 the claimant stated he was usually paid £70 per week from 1 September 2010. The claimant also stated at paragraph 6.1 that he was an “employee under a contract of employment”. At paragraph 7.4 the claimant asserted he was getting £75 per week when it should have been “the second year apprenticeship rate of £30.50 per day”. He also referred to a specific agreement of £40 per day for working in the Republic of Ireland for six days. The claimant asserted he never received any holiday pay or payment for his days at college. There was no agreement, in writing or otherwise, produced to the tribunal. The oral arrangement, as to wages, was not kept. Having heard the claimant give his evidence the tribunal determined that throughout September to October 2010 the claimant was receiving £15 per day from the respondent. In November 2010 the payments to the claimant became less regular and between 1 November 2010 and 19 November 2010 there were eight days the claimant worked for the respondent but for which no payment was received
- From September onwards the claimant only attended the college six times – despite the requirement for one day a week attendance. This failure to attend was usually approved by the College. On 22 November 2010 the respondent asked the claimant to travel to the Republic of Ireland to assist in completing a job that had arisen. The claimant was promised £40 per day for this work. He was asked to contribute £15 sterling to the petrol costs for the travel of himself, the respondent and two other persons. All four persons remained in accommodation provided free of charge but had to be responsible for their meals other than breakfast. This cost the claimant approximately 20 euro per day. The claimant worked longer days while on this job – 7.30 am to 8.30pm.
- The claimant was not paid on the Friday 26 November 2010 but reluctantly agreed to travel again to the Republic of Ireland contract location the following Monday 29 November because of a promise from the respondent he would be paid for work done the previous week. On Monday evening when he arrived back into Northern Ireland and was about to leave the respondent’s transport, the respondent offered to pay him half the amount promised. The claimant refused to accept this and never returned to work for the respondent after that date. He tried to find another Master to complete his apprenticeship but due to the economic downturn he was unsuccessful.
-
The claimant was entitled to 28 days holiday in a year. The claimant took
no holidays from 1 September 2010 until his contract ceased on 29
November 2010. The claimant worked a 5 day week.
The Law
- As there was no proof of the contractual arrangement for the claimant’s holiday entitlement available to the tribunal, the Working Time Regulations must be consulted in order to establish that entitlement.
- The relevant provisions, which I have applied, are contained in Regulations 13, 13A, (as inserted by the Working Time (Amendment) Regulations (Northern Ireland) 2007), 14 and 15A (as inserted by the Working Time (Amendment) Regulations (Northern Ireland) 2002) of the Working Time Regulations (Northern Ireland) 1998 (“the Regulations of 1998”). Regulations 13 and 13A of the Regulations of 1998 deal with entitlement to annual leave, Regulation 14 with compensation related to annual leave and Regulation 15A with rounding up.
- Article 3 of the Employment Rights (Northern Ireland) Order 1996 defines employee as an individual who works under a contract of employment. A contract of employment “means a contract of service or apprenticeship”, express or implied, oral or in writing.
- Article 45 of the Employment Rights (Northern Ireland) Order 1996 protects an employee from any deficiency in his wages – which “shall be treated as a deduction made by an employer” when the total amount of wages paid is less than the amount properly payable to the employee.
- It is clear law that a contract of apprenticeship is a special type of contract. A simple trainee is not an apprentice. Training of an employee on the performance of his work does not create a contract of apprenticeship. It is normal that a contract of apprenticeship should be in writing although the absence of a written contract is not in itself determinative of the issue. In Edmonds v Lawson & Others [2000] IRLR 391 Lord Bingham said:-
“A contract of apprenticeship or any equivalent contract is in our judgment a synallagmatic contract in which the Master undertakes to educate and train the apprentice (or pupil) in the practical and other skills needed to practise a skilled trade (or learned profession) and the apprentice (or pupil) binds himself to serve and work for the Master and comply with all reasonable directions.”
-
Prior to 1 October 2010 the National Minimum Wage did not apply to apprenticeships. It was introduced for the first time for apprenticeships with effect from 1 October 2010. The apprentice hourly rate as of 1 October
2010 is £2.50 an hour for those under the age of 19 or for those aged 19 and over and in the first year of their apprenticeship. Apprenticeship for national minimum wage purposes include workers with contract of apprenticeships or workers taking part in a training scheme who are treated as if they have a contract of apprenticeship such as apprenticeshipni or a modern training apprenticeship. Persons on a programme led apprenticeship are not entitled to the national minimum wage.
- Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.
Conclusions of fact and law
16. The single document produced at hearing by the claimant regarding his relationship with the respondent was a document with the Department of Employment and Learning logo. It was headed Delivery Agreement and identified the claimant as the participant in a programme led apprenticeship. The print on the document was very faint in places particularly the page signed by all three parties to the agreement in May 2010. On the first page of the document it reads “Duration of Placement – September 2010”.
17. It appeared to the tribunal there was little discussion between the parties to this claim as to the length of the total duration of the alleged apprenticeship and other...
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