Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 71_8IT, [2008] NIIT 71_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 71/08

CLAIMANT: Qui Song

RESPONDENTS: 1. Patrick McDermott

T/A Glenrossan Fish Products

2. Winnie Fred McDermott

DECISION

The unanimous decision of the tribunal is that:-

(1) the right to a written statement of particulars of employment contained in Article 33 of The Employment Rights (Northern Ireland) Order 1996 does not include the right to compel the respondent to apply for a work permit to the Home Office to enable the claimant to work in Northern Ireland;

(2) the contract of employment was frustrated at the date the claimant was refused an Entry Clearance Visa and therefore it terminated by operation of law on 29 April 2005; and

(3) since the contract of employment was not terminated by the respondent, the claim for unfair dismissal is dismissed.

Constitution of Tribunal:

Vice President: Mrs P Smyth

Members: Mrs Kelly

Mr Irwin

Appearances:

The claimant did not appear, but submitted written submissions.

The respondents were represented by Mr P Coll, Barrister-at-Law, instructed by John McGale Kelly & Company, Solicitors.

The issues

The issues to be determined by the tribunal are:-

(1) whether the right to a written statement of particulars of employment contained in Article 33 of The Employment Rights (Northern Ireland) Order 1996 (Section 11 of The Employment Rights Act 1996) includes the right to compel the respondent to apply for a work permit to the Home Office to enable the claimant to work in Northern Ireland;

(2) whether the contract of employment between the parties was frustrated;

(3) if not, whether the claimant was unfairly dismissed by the respondent.

The tribunal having considered the written submissions from the claimant, and heard evidence from Mr Patrick McDermott found the following facts proved on a balance of probabilities.

(2.1) The claimant is a Chinese national who at all material times resided in China.

(2.2) The first-named respondent is a fish farmer who at all material times was involved in the processing of fish products.

(2.3) In or about 2003, the first-named respondent required specialist fish filleters to assist with the processing of his products. He contacted Service Plus which was a recruitment agency, and engaged the services of a Mr Mustaq.

(2.4) Mr Mustaq identified a number of prospective employees from non-European Union countries including the claimant. In early August 2004 the first-named respondent registered with the Home Office and provided a copy of a contract of employment between him and the claimant to enable the claimant to obtain a work permit for Northern Ireland.

(2.5) On 22 November 2004 a work permit was issued to the claimant which was valid for one year, and was conditional upon the claimant taking up the work permit within six months of issue.

(2.6) However, in order to legally enter Northern Ireland, the claimant was also required to obtain an Entry Clearance Visa. The claimant was refused an Entry Clearance Visa on 29 April 2005.

(2.7) The claimant appealed to the Asylum and Immigration Tribunal and on 25 January 2006 his appeal was upheld. However, the work permit had expired on 22 November 2005.

(2.8) The first-named respondent had difficulty contacting Mr Mustaq from approximately March 2005 and eventually discovered that he had become bankrupt. The first-named respondent was not informed that the Entry Clearance Visa had been refused, nor was he informed about the claimant's appeal or its outcome.

(2.9) The claimant did not contact either of the respondents at any stage until April 2007 when he spoke to the second-named respondent by telephone. Unfortunately, by that time the focus of the first-named respondent's business had changed because of the difficulty in recruiting specialist filleters. The processing of fish products now amounted to only 20% of the overall business, whilst 80% of the business was involved with distribution. The first-named respondent no longer had any requirement for fish filleters and the claimant was informed of this fact in the course of the telephone conversation.

(2.10) On 24 April 2007 the claimant's legal representative wrote a letter to the first-named respondent addressed to Northern Ireland Seafood Limited in the following terms:-

"To whom it may concern

I am Mr Li Yu, lawyer of Mr Qui Song. Since Mr Qui Song has received the tribunal's determination of the appeal which shows that he has successfully appealed, British Embassy Bei Jing, Visa Section, has made phone call and required a renewed work permits (the phone record from British Embassy Bei Jing, Visa Section, could be showed). The responsibility should be taken by your company if a refusal of work permit will be made.

The contract has been signed on 27 February 2005 between Mr Qiu Song should be able to work for it.

Mr Qiu Song has been asking a renewed work permits from Glenrossan Trout Fishery as a fish filleter for three times, but the employer – Mrs Winnie Fred McDermott refused to offer a renewed work permit.

Mr Qiu Song has no donkey act in this case, he should not be unfairly treated.

Mr Qiu Song has never received a official written statement for dismissal any time during these three years from your company, and he kept waiting for three years from a job from your company.

He has been painstaking effort on it. According to (Employment Rights Act 1996 – Sect 11) an employer does not give an employee a statement as required (either because he given him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Section concerned.

So hopefully a close attention to him could be paid by you, and solve the problem as soon as possible, as Mr Qiu Song required, we'd like to hear from you in three days.

Otherwise the award of compensation for unfair dismissal should be made by tribunal and a complaint may be presented to the industrial tribunal.

You may want to enquire to your lawyer for any question in details."

The law

(3.1) Article 33(1) of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall give to the employee a written statement of particulars of employment.

(3.2) Articles 33(3) and (4) set out the particulars which the statement must contain. Those particulars include the names of the parties, the date on which the period of continuous employment began, remuneration rates, terms and conditions relating to hours of work, holiday entitlement, provisions for sick pay, notice entitlement, job description, etc.

(3.3) Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides that an employee has the right not to be unfairly dismissed. Article 140(1) provides that Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less then one year ending with the effective date of termination unless Article 140(2) applies.

(3.4) Article 7 of the Employment Rights (Northern Ireland) Order 1996 states:-

"7(1) An employee's period of continuous employment for the purposes of any provision of this Order –

(a) … begins with the day on which the employee starts work, … ."

(3.5) A modern statement of the legal principles relating to frustration of contract is set out in Lord Brandon's speech in Paal Wilson & Co A/S v Partenreederei Hannal Blumenthal [1983] IAC 854 @ 909:-

"There are two essential factors which must be present in order to frustrate a contract. The first essential factor is that there must be some outside or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting, which either makes it impossible for the contract to be performed at all, or at least renders its performance something radically different from what the parties contemplated when they entered into it. The second essential factor is that the outside event or extraneous change of situation concerned, and the consequences of either in relation to the performance of the contract, must have occurred without either the fault or the default of either party to the contract."

(3.6) It is clear from the authorities that where a contract has been frustrated, there is in law no dismissal. The contract terminates by operation of law.

(3.7) In Chakki v United Yeast Co Ltd [1982] ICR 140, the Employment Appeal Tribunal relied on the words used by Branson J in Court Line Ltd v Dant and Russell inn [1939] 3 ALL ER where, in considering whether a time charter of a ship had been frustrated by delay he said at pages 317, 318:-

"the time as to which the question must be decided is the time when the parties came to know of the cause, and the probabilities of the delay, and had to decide what to do."

The tribunal's conclusions

(4.1) The tribunal is satisfied that the right to a written statement of particulars of employment is a right to receive the particulars set out in Article 33 of The Employment Rights (Northern Ireland) Order 1996. Article 33 does not entitle any employee to compel an employer to apply to the Home Office for a work permit. This aspect of the claim is entirely misconceived.

(4.2) The tribunal is satisfied that the contract between the parties was frustrated on the date the claimant was refused an Entry Clearance Visa. That event constituted an outside or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting, which made it impossible for the contract to be performed at all. In short, the claimant's inability to come to Northern Ireland to work for the respondent frustrated the contract.

(4.3) In view of our finding that the contract was frustrated, it terminated by operation of law and therefore the issue of unfair dismissal does not arise. However, if the contract had not been frustrated, the tribunal would not have had jurisdiction to consider a claim of unfair dismissal because Article 140(1) of The Employment Rights (Northern Ireland) Order 1996 states that an employee must have one year's continuous employment in order to bring a claim, and Article 7 of the Order states that an employee's period of continuous employment 'begins with the day on which the employee starts work'. The claimant did not start work at any time with the respondent and therefore even if the contract had not been frustrated, the tribunal would not have jurisdiction to determine a claim of unfair dismissal.

(4.4) The claim is therefore dismissed.

Vice President:

Date and place of hearing: 14 May 2008, Belfast

Date decision recorded in register and issued to parties: