My only problem is one of trust. If he is resorting to this behaviour at this stage (esp as he knows that anyone who has left my employment has always beeen paid) who's to say he will be willing to hand over the tools at all? Then I will have lost all leverage.
To cap it all, I have sent alternative fitters to the job he started this morning and they have phoned in to report that there has been about 3 hours work done in the three days he has been there.
It now appears that I am going to have to bring in a subcontractor to finish the job over the weekend, the cost of which will be triple the wages he is due. According to my employment manual, when an employee is in notice period and does something to cost the company money, we are entitled to withhold his wages to set off against said cost and sue him for the extra which is actually what is going to happen. looks like he has been taking the proverbial for the last few days. According to the client, he would turn up for a few hours each day and spend all his time on the phone with his new employer. looks like it has gone on my phone bill too! This puts it in a whole new light now. He is certainly not goin to be paid his last weeks wages and I need to recover more from him incl the tools.
That does put a different slant on it. There is every possibility he will forfeit his wages and keep the tools to help him in his new job. I would assume that the tools will cost more to replace than the guys wages?
Unfortunately you are in a PITA situation. You have a number of options available to you but depending on the circumstances one will be better than the others.
Firstly, go around with his wages and demand the return of all the tools in exchange for his wages.
Secondly, withhold his wages and accept the loss of the tools.
Thirdly raise a claim in the small claims court - this will be long, drawn out and protracted. He will claim that you are mistreated him, threatened him etc etc and its impossible to say how it will end up.
My preferred option would be to pursue this using option one with witnesses. If he refuses to hand over the tools advise him that you will contact the police. If he still refuses call the police whilst standing in front of him - use the local number not 999 obviously.
In regards to him not working - put it down to experience - getting the money back from having to bring on a sub contractor will be a nightmare I would imagine.
The main thing it comes down to is how much money is involved, how much time and effort can you afford to invest in resolving this and from a very detached perspective what effort is justified in the long term?
Horrible situation and I do feel for you. Remove the fact that you have been shafted from your decision making - personal feelings cannot really be a part of it - easier said than done obviously.
Anyway hope all goes well.