Mr G Coe v W Wilson Auto Electricial Services Ltd 3200597/2017

EMPLOYMENT TRIBUNALS

Case No 3200597/2017

Between

Mr G CoeClaimant

W Wilson Auto Electricial Services LtdRespondent

Before

Employment Judge Prichard

In person for claimant

Date 13 June 2018

JUDGMENT

It is the judgment of the Tribunal that the claimant’s claims are dismissed. The respondent’s counter claim succeeds as follows:

[1]- Overpayment of the claimant’s wages £1,940.76. - Rectification at Sullivans £1,075.50 - Rectification at Empress Coaches £500.00 - Rectification at Southdown PSV £300.00 - LESS credit for expenses (£41.20) - Grand total £3,774.56

[2]The claimant is ordered to pay the respondent £3,774.56.

REASONS

[1]The claimant, Mr Gray Coe aged 50 worked for the respondent as a mobile auto electrician for 5 months 25 January 2017 to 13 June 2017. The respondent is mainly a family concern, father and son, William Wilson and his son Billy Joe Wilson. They service PSV’s.

[2]The claimant was summarily dismissed by a letter dated 9 June 2017 without notice pay the reasons given were:2.1 Failure to attend for work in that week.

2.2 Grossly exaggerated claims for time spent on work, improperly charging the company for wage claims which exceeded what is due.

2.3 Overcharging clients for work undertaken.

2.4 Client refusal to have you on site thus making you of no use to us.

2.5 Not competent to undertake the work which you were assigned to.

[3]The claimant did not have 2 years service and brings no unfair dismissal claim or any other form of claim for continuing loss of earnings. The claim and thus the respondent’s counter claim arise from the matters stated in the letter of dismissal.

[4]This has been an extraordinarily hard fought case. It originally came before the tribunal with a 3-hour time estimate listed on 1 December 2017. It was obvious from the number of documents exhibited and the number of documents which had not yet been disclosed that 3 hours was not going to be nearly enough time. The case had to be adjourned, remarkably, for a further 3 whole days. The hearing did not conclude before the end of the third day and thus this judgment had to be reserved.

[5]The claimant was working on HGV vehicles for a business called Motoraid as a general technician. He was contacted by young Billy Wilson who found him on Linkedin. The Wilsons were finding they had more work than the two of them, (and their friend Les Richardson), could not cope. Les Richardson mainly worked on nights, which was an important part of their service for PSV emergencies around the clock. He worked on a contract basis, not as an employee.

[6]Billy Wilson got in touch with the claimant. An interview had been set up but apparently the claimant did not attend for that. The Wilsons never formally interviewed the claimant until Saturday 21 January 2017. I have seen text confirmation of that. He started work, I find, on Wednesday 25 January 2017. He went to their home, and the main address for the company, Flaxen Close, Chingford, London E4 and was interviewed by both the Wilsons Ms Mary Wilson (who was in and out of the room). Generally Mary Wilson carried out payroll administration.

[7]The claimant was originally offered £17.00 per hour based upon his experience and qualifications. The claimant asked for £18.00 and in negotiation that was agreed. At this hearing that is one of the few things which is not disputed. On an 8-hour day this equates to £144. On a 5-day week it equates to £720. It was also agreed in principle that the claimant was entitled to holiday pay which, in default of a written contract, would be 28 days per annum under the Working Time Regulations - the minimum annual holiday entitlement.

[8]It has been a major source of controversy in this case that there has been no written contract.

[9]The claimant could have been a contractor if he had chosen to be. He chose to be employed and the respondent fell down badly in not providing him with a written contract. It has given rise to main dispute in this case. The claimant was not paid a fixed salary for his work and had to submit timesheets to the respondent and he would be paid according to the hours worked except when he was on leave in which case he would be paid £144 per day. He worked a 5-day week.

[10]The respondent (it is no secret from anyone) has trackers fitted to all vehicles. They record precise timings, whereabouts’, and mileages which can then be checked on a computer system. The technology is provided by Qartix. The respondent has an annual contract whereby it spends £700 per annum to have three vehicles fitted with trackers. Tools and parts are kept in the vehicles, so security is important as well.

[11]To put it as simply as possible, the dispute between the claimant and the respondent is the claimant says that he was to be paid according to hours billed to clients. The respondent maintained he was to be paid for hours out of the house as recorded on the tracker. This would compensate the claimant for any time, which could not easily be charged to clients, when he was caught in traffic queues in the London rush hour or other times on the M25.

[12]The claimant lives in Basildon about 12 minutes east of the M25. The clients I have heard about were all over the South East and South. The main clients I have been told about were Refoods in Dagenham, Wealden PSV in Tonbridge, Southdown PSV and Chartwell Bus & Coaches near Crawley, and Empress Coaches in Bow / Bethnal Green.

[13]The claimant was provided with his van on Sunday 22 January the day after being interviewed. 2 tracker records show 2 vans going from Flaxen Close to the claimant’s home in Basildon, as the second vehicle had to take the driver of the claimant’s delivered van back home.

[14]The claimant spent some time fitting out the van, putting his own tools into the van, and racking it. He was then given some work on Wednesday 25 January. That, as I find, was his first day at work. The claimant had further expanded his pay claim by saying he started sooner in January, and had some paid induction. I had no hesitation in rejecting his account. The respondent’s account was well documented by texts and the tracker reports and I find it to be true.

[15]At this hearing the respondent put forward a specimen timesheet with their name at the top which was supposed to be filled out and submitted on Friday of each week for payroll purposes. The claimant was paid monthly at the end of the month. As he started so near the end of January he was not paid January’s pay until the February pay round.

[16]The respondent never insisted on the claimant using this sheet. The sheet asked for start and end times which might have made it clearer that employees were not to be paid by hours billed to clients. Instead the claimant submitted his own sheets for the whole month stating the date and the total number of hours. In all cases except for one there are no part hours. It appears the hours were rounded up. Billy Wilson gave evidence to the tribunal that if he only worked part of an hour that is all he would count. He would not round up his hours for pay purposes.

[17]The respondent seemed hopelessly laissez faire. They probably did not talk much to each other about what the claimant was doing and how he was claiming. Nobody queried his timesheets or asked him to use the proper template and so he carried on unchecked without comment. The respondent only started querying the claimant’s practice over pay once complaints had been received from clients about the size of their bills and put those together with the amount of time the claimant actually spent on the client premises as seen from the tracker reports.

[18]Complaints were received from important and substantial clients, Metroline, Sullivan’s coaches, Empress Coaches, Southdown PSV and Chartwell. (Southdown and Chartwell both work out of the same yard in Crawley).

[19]The upshot of the disagreement over pay is that the claimant comes to this tribunal with a claim for unpaid wages of £1,800 that is a 100 hours at £18 an hour. It is a broadbrush claim, based on what seems to be a speculative estimate. The respondent has a counter claim precisely quantified as £1,940.76 that is 107.82 hours x £18. They have calculated this, month by month, taking a generous reading of the trackers for each month and calculating the hours the claimant spent out of the house, then checking that against the hours on the client bills which reflect the hours on the claimant’s pay claims.

[20]I say the tracker readings are generous because if one looks at the precise hours in the calculation I added it up as 156.3 hours. If that total had been used it would have given a counter claim of £2,813.14 instead of £1,940.76. (Sometimes it is obvious from the trackers that the claimant has stopped on a non work-related stop before he heads back home certain – e.g. retail parks). I am therefore satisfied that the counter claim is conservatively quantified.

[21]When the respondents became aware that the claimant was being overpaid in their view they ceased all payment to the claimant. The consequence of that has been that the claimant has not been issued with a P45 at the end of his employment. Not all the tax due has been paid whilst they await the outcome of this tribunal on the claimant’s pay claims to see what is or what is not due to the claimant. The detailed breakdown of the counter claim is set out in the witness statement of William Wilson for this tribunal hearing.

[22]Having outlined the dispute I deal first with the resolution of the claim and the counter claim for unpaid/overpaid wages without going into the considerable extra detail. The most striking piece of evidence arose on 2nd day of the reconvened 3 days. At the end of the first of those days 6 February the claimant said in evidence “I can put this to sleep I have a text/email from Bill senior that I charge on job sheets”. This itself was a surprising thing to say at this stage of the hearing because it was obvious since the ET1 and the ET3 what the core of this dispute over pay was. That the claimant should have failed to put forward, first time, an email he had received from the respondent stating the basis of his pay was extraordinary. The following day he did produce what purported to be an email. The gravest concern was expressed by Ms Fitzgibbon, and felt by the tribunal.

[24]It is a photograph from the claimant’s iPhone of a purported email with no subject from William Wilson giving his correct email address at yahoo to the claimant at the email address pitbullgray@hotmail.co.uk it says: “Hi Gray Please go back to Wheeldon PSV TN12 6RT tomorrow be there for 9.00 am same as today. In answer to your question you will be paid £18 per hour for the hours you claim and get signed for on your job sheets and only charge mileage from the M25 to job and home and add this to your job sheet. Many thanks Bill.”

[25]That would indeed have put the pay dispute to rest if the tribunal was able to find that this was an authentic email. Most exceptionally I am driven to conclude it is a forgery and, as it turns out, a clumsy forgery. The date on the email was given as Wednesday 25 February. The claimant meant to date it 25 January i.e. his first day of work. As it happens Wednesday 25 February 2017 never existed. 25 February 2017 was a Saturday. The email talks about going to work tomorrow which would have been a Sunday. It is inconceivable. The claimant never worked weekends, and this was not emergency work. The claimant could offer no explanation for how an email which should have a systemgenerated date could have the wrong month and the wrong day.

[26]The claimant failed to understand properly about looking at his mails on his email server. I suspect he was being obtuse. He told the tribunal that “pitbullgray” etc. is not an email address he uses any longer notwithstanding it is still the address given for use in these proceedings on his ET1 claim form. It has been used throughout proceedings as a means of communication. If he has a new business email now, it does not affect this finding at all. His attempts to explain the problems with this email were nugatory.

[27]He had been previously been asked by the respondent’s solicitor if he could forward a copy of that email to them so that they could look at it in e-form. It appears the misleading explanation about the “pitbullgray” address being obsolete was intended to explain his inability to forward it from his Inbox to the respondent’s solicitors.

[28]It leads one to enquire. If he is prepared to lie to substantiate his version of the contractual agreement, it puts in doubt that the claimant sincerely he believed that it was indeed the agreement.

[29]William Wilson said he had never sent any such email. That is not surprising. I find that no such email was sent to the claimant and that he typed it, possibly on the evening of the second day of the hearing, and made a very basic and fundamental mistake.

[30]The respondent throughout has been the victim of its own casualness in letting it run on for so long unchecked but I accept the evidence of both the Wilsons that the special charge from the M25 had nothing at all to do with anything. Even Les Richardson who lives in Southend would not charge relative to the M25.

[31]I saw a text dated 1 June from Mary Wilson in response to the claimant asking about his money for the month of May. He also asked for two wage slips. Mary replied: “This month not done yet hours done on trackers so staff just working out then accountants sends over I sent last month’s” Then the claimant’s response “Oh ok is wages is done on tracker now not on invoice my travelling and tracker is a lot more than my invoices” Mary Wilson replied: “Yes we had lots of problems with customers only do on job time and it will be record that William Wilson had received complaints from clients about the apparent overcharges on their invoices.”

[32]On the over / under payment aspect of the claim and counter claim I therefore have no hesitation in upholding the respondent’s counter claim for overpayment and dismissing the claimant’s entire claim for unpaid wages. That is the bulk of the claims.

[33]Moving to the other areas of the claim. The claimant is asking for pay for the whole of June which he says he was available to work. I consider that the claimant was not wrongfully dismissed by letter of 9 June, principally by reason of his exaggerated claims. Despite the poor communication by the respondent I consider the claimant knew that he was not entitled to claim pay in the way he was. Whilst claiming it thus, he had also been overcharging clients.

[34]These charges to clients, as I find, were never authorised by William Wilson, contrary to what the claimant alleges. It was not the practice of the company for instance to charge 3 hours for changing a fuse if that turned out to be all that was needed. The fact there were so many client complaints indicates that the claimant was completely out of step with the reality of his position. The fact that he resorted to forging a document in these proceedings shows he knew he was taking a chance in making this submission.

[35]The holiday pay claim has been dealt with previously.

[36]The claimant’s claim for expenses seems to be perfectly valid. It amounts to £41.20 on an itemised on timesheet that he sent to the respondent for May 2017 however, that is subject to a set-off against the respondent’s counter claim for rectification works.

[37]The claimant also has a claim under Section 24(2) of the Employment Rights Act 1996 for collateral losses i.e. bank charges incurred due to non payment which he phrased as “loss of earnings due to injury to feelings and stress and bank charges received for underpayment of wages for the period 13 June to the tribunal date 12 weeks at £500 per week. Section 24(2) reads as follows: “Where a tribunal makes a declaration under Section 1 it may order the employer to pay to the worker in addition to any amount ordered to be paid under that subsection such amount the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of”

[38]This only takes into account financial loss, not the sort of non-pecuniary loss that the claimant is envisaging here. The tribunal has no jurisdiction to award non-pecuniary loss in a money claim. The paradigm case is compensating for bank charges incurred after late payments in. This amendment inserted by the Employment Act 2008 was intended to provide a remedy for losses not previously recoverable in the tribunal jurisdiction.

[39]So far as the bank charges are concerned all I have had put before me is a text from the claimant to Mary Wilson. It was a forwarded communication from the claimant’s bank which was pasted into a text to Mary Wilson. The text in question reads: “Your account … 3550 has insufficient funds for requesting payments. To ensure payments are made and avoid a £180 fee transfer … £320 today by 15.00” What I would have expected to see by way of proof of this claim was a bank statement stating that the charges had in fact been incurred. No such evidence was there. There is literally no supporting documentary evidence for this claim which is, in principle, provable by easily accessible documents. I therefore cannot possibly uphold the claim. The claimant has otherwise been extremely diligent in providing documentary evidence where it existed (and even where it did not).

[41]This was on 1 June, Thursday. If that in fact happened, it seems quite extraordinary that I have not been shown a bank statement, even a printed online bank statement. I conclude this is an opportunist claim which was probably made in hope that the tribunal would disbelieve the Wilsons totally, and would not trouble to scrutinise the evidence behind the claimant’s claim (or the lack of it).

[42]I indicated in the judgment I sent after the postponement that I would probably be considering awarding 4 weeks pay because of the lack of written terms and conditions of employment such as might have stopped this claim coming to the tribunal at all. It is under Section 38 of the Employment Act 2002. The award is mandatory, if the claimant is successful to any extent, except when Section 38(5) applies: “If there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable”

[43]My primary reason for not making the award is the claimant’s conduct in these proceedings producing a forged email in an attempt to substantiate his main contention. It could not be just or equitable to give the claimant a windfall like that. The respondent is therefore fortunate.

[44]On my secondary reasoning Section 38(2) would normally cover the case of the claimant in respect of his expenses claim. Section 38(2): (2) “If in the case of proceedings to which this section applies (a) the employment tribunal found in favour of the employee but makes no award to him in respect of the claim to which the proceedings relate …”

[45]That covers the claimant’s expenses claim which nonetheless has been obliterated by the respondent’s counter claim. In the way the claim was put expenses were added to the claim for arrears which would be normal arrears of pay. Expenses cannot be wages or arrears of pay for the purpose of Section 27 of the Employment Rights Act 1996. Expenses are always dealt with in the tribunal as a breach of contract claim. 46 £41.20 does seem to be owed. I am not using it as a credit against the amount of the counter claim for overpayment of wages.

[47]My secondary reasoning on Section 38 is that I can set off the contractual expenses against the contractual rectification claims. If that is done it is not “finding in favour of the employee” for the purposes of Section 32 of the Employment Act 2002.

[48]The primary reasoning remains that it is not just or equitable to make the Employment Act 2002 award.

[49]The respondent’s counter claim goes further than overpayment. The respondent is claiming for 2 lots of remedial work done at their own expense which was necessitated by the claimant’s poor workmanship. This is an employer’s contractual counter claim. I accept the contractual and factual basis for this claim.

[50]I have been shown an invoice from MCV which the respondent asked to be sent to them. It is for faulty workmanship by the claimant. It was £1,075.50, not inclusive of VAT. (That was correct because the respondent will have reclaimed the VAT as input tax). I consider that the expense was properly incurred. Sullivans had decided that they did not trust Wilsons to rectify the work that had been so poorly done by the claimant so they used a third party.

[51]I also mentioned at the time of the hearing that I would not also make an award of £1,050 for 21 hours for extra work done at Sullivan’s by William Wilson. That would represent double recovery. I uphold an award for £1,075.50 only.

[52]I also uphold a claim for 10 hours remedial work undertaken by William Wilson himself £50 per hour at Empress Coaches on 1 June.

[53]William Wilson also dealt with an incident at Southdown PSV when he spent 6 hours after the claimant had misdiagnosed a gear box fault. There was no fault with the gear box. The fault was with the sensor switch that triggered the gear box warning light on the dashboard.

[54]I considered these were all genuine rectification works undertaken by William Wilson and I accept his evidence. The claims are modest, precisely quantified, and not remotely surprising.

[55]There are other aspects of the counterclaim which I cannot accept. The respondent was claiming £1,600 loss of profit for not having the company van from 5 – 8 June that is £400 a day loss of profit. It would not have been pure loss of profit because the respondent would have paid Les Richardson at £18 p.h. It is a very vague and shadowy complaint.

[56]Most importantly I do not consider that the claimant was in breach of any duty to make his van available for collection. In fact the respondent was late picking it up, having made arrangements with the claimant. There is an extensive exchange of texts and emails around this. I cannot accept the respondent’s claim. The evidence did not support it.

[57]Originally there had been a claim for £355 payable to Qartix to fix the tracker on the claimant’s van apparently. Qartix in fact waived this bill for goodwill and therefore it was not an expense to the respondent and not claimable.

[58]That deals with the claim and the counter claim.

[59]I should mention that I have not dealt at all with the claimant’s previous convictions. I consider they had nothing whatsoever to do with the issues I was asked to decide and the mention served no purpose at all in the context of these money claims other than to increase the level of vindictiveness in this case