Industrial Tribunals Northern Ireland Decisions

 


Jardine v Norfolkline Ltd (Preliminary Issue : Jurisdiction to Hear Claims) [2002] NIIT 427_02 (19 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 427/02

APPLICANT: Eric William Jardine

RESPONDENT: Norfolkline Limited

DECISION

The unanimous decision of the Industrial Tribunal is that the tribunal has no jurisdiction to entertain either the applicant's complaint of unfair dismissal or of unlawful deduction of wages, and the applicant's complaints are accordingly dismissed, without further order.

Appearances:

The applicant was represented by Mr M Brady, Barrister-at-law, instructed by Simmons, Meglaughlin & Orr, Solicitors

The respondent was represented by Mr David Marshall, Solicitor, of Cunningham & Dickey, Solicitors

1. The reasons are given in summary form.
2. In his Originating Application to the tribunal dated 5 February 2002, the applicant complained of "unfair dismissal" and of "unauthorised deductions from wages". In its Notice of Appearance, the respondent company contended that the applicant was deemed a haulage sub-contractor and was not an employee. As a preliminary issue, therefore, the tribunal had to determine whether or not the tribunal had jurisdiction to deal with the applicant's complaints.

THE TRIBUNAL'S FINDINGS

3. In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-
4. A company of limited liability, "Jardine European Haulage Limited", was incorporated in Northern Ireland on 20 October 1994. At the material time which concerns this tribunal, that company was jointly and equally owned by the applicant, Mr Jardine, and by his spouse. Furthermore, at the material time, the said limited company was materially engaged in economic activity.
5. There was a relationship between the applicant and the respondent which relationship commenced in or around July of 1997. Having examined the essential characteristics of this relationship between the applicant and the respondent in respect of such issues as integration of operations or function, mutuality of obligation, any contract payment arrangements, benefits deriving from any contract and ownership of equipment necessary to perform any contract functions, the tribunal noted particularly those facts which would tend to be persuasive as to a contract of service existing between the applicant and the respondent and those facts suggesting the contrary.
6. Some of the facts tending to show the possible existence of a contract of service would be derived from, by way of illustration:-

(a) there were certain contractual dealings, especially in the early stages of the relationship, where the contracting parties were described as, on the one part, the respondent company and, on the other part, either Mr Jardine in his personal name or under the trading name "Jardine European Haulage", with no mention being made of the limited liability company; and

(b) there appeared to be some degree of regulation of driver appearance and driver conduct in evidence by the existence of a respondent's "drivers' manual".

7. However, more persuasive to the contrary were some of the facts tending to go against the possible existence of a contract of service, these being, by way of illustration, the fact that:-

(a) it was the respondent company's stated policy not to engage as employees any of the drivers; and

(b) an express sub-contract arrangement was described as attaching to the relationship and this was freely and readily accepted by both parties thereto; and

(c) contract payments were made on foot of regular invoices which were not the subject of statutory deductions for PAYE tax or National Insurance Contributions; and

(d) Mr Jardine conceded that it was the limited company, "Jardine European Haulage Limited", which regularly invoiced the respondent company in respect of the services provided. Of note was the apparent early lack of precision in the description of the party contracting, which lack of precision was later regularised when Mr Jardine began to use a computer system to generate printed invoices on which the contracting party was exclusively designated under the name of the limited company, "Jardine European Haulage Limited"; and

(e) the limited company, "Jardine European Haulage Limited" was clearly engaged in substantial economic activity at the material time; and

(f) the tractor unit to perform the services under contract was not provided by the respondent company; and

(g) the content of the respondent's drivers' manual was, on balance, more in the nature of a set of guidelines rather than anything establishing conclusively or to the necessary degree the type of control which would ordinarily exist in regard to a contract of service.

THE TRIBUNAL'S DECISION

8. An employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996. However, in order to succeed in such a claim, a contract of employment must be demonstrated. In this case, having examined the facts of the relationship between the applicant and the respondent, the tribunal concludes that the contract services in question were performed at the material time, that material time being the date upon which the contractual relationship appears to have come to an end in or about the month of January 2002, by the limited company "Jardine European Haulage Limited". Indeed, the tribunal's view is that in all probability the contract services in question were performed throughout the entire period of the contractual relationship by the limited company. The tribunal is not satisfied that any parallel or any other relationship having the status of a contract of service existed at the material time between Mr Jardine personally and the respondent company. That being the case, as there was no relevant contract of service, the tribunal has no jurisdiction to entertain the applicant's complaint of unfair dismissal.
9. The applicant also complained to the tribunal of unlawful deduction from wages. Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall not make unlawful deductions from wages of a worker employed by him. In Article 3 of the Employment Rights (Northern Ireland) Order 1996, a "worker" is defined as meaning: "...an individual who has entered into or works under (or, where the employment has ceased, worked under) – (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual ". Having considered whether or not the applicant might have been a "worker", the tribunal declines to make such a finding. The applicant was a joint and equal owner, together with his spouse, of all the issued share capital in the limited company which performed the contract services. As such the tribunal finds that the applicant personally fails to meet the definition of a worker and accordingly the tribunal has no jurisdiction to hear the applicant's complaint of unlawful deduction of wages.
10. As the tribunal has no jurisdiction to entertain either the complaint of unfair dismissal or of unlawful deduction of wages, the applicant's complaints are hereby dismissed, without further order.

___________________________________

James V Leonard

Chairman:

Date and place of hearing: 19 June 2002, Strabane

Date decision recorded in register and issued to parties: