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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McMinn v Samuel Caldwell [2010] NIIT 00175_10IT (07 February 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00175_10IT.html
Cite as: [2010] NIIT 175_10IT, [2010] NIIT 00175_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7491/09
7492/09
175/10
CLAIMANT: 1. Samuel Caldwell
2. Jacqueline Caldwell
RESPONDENT: Lawrence and Catherine McMinn T/A Ness Nurseries
DECISION
The decision of the Tribunal is that the claims for breach of contract by both claimants are dismissed. The respondent’s counterclaim is allowed and I order the return of the garage heater or in the alternative payment in the sum of £350.00, the return of the hedge cutter or in the alternative payment in the sum of £325.00, the return of the cordless drill or in the alternative payment in the sum of £215.00.
Constitution of Tribunal:
Chairman (sitting alone): Mrs Attracta Wilson
Appearances
The claimants, Mr Samuel and Mrs Jacqueline Caldwell appeared and both were represented by Mr Samuel Caldwell.
The respondent was represented by Mr Donal McGuinness BL instructed by Caldwell Robinson, Solicitors.
The Claim
1. The claimants claim breach of contract by the respondents. It is their case that they both agreed to resign from their employment in consideration of the respondents paying them a sum equal to what would have been their statutory redundancy entitlement. It is alleged that this sum was to have been paid to them by way of installments and that this arrangement constituted a legally binding contract between the parties.
The Counter Claim
2. The respondents deny the existence of any contract between the parties and counterclaim for the return of equipment remaining in the possession of Mr Samuel Caldwell following his resignation which they allege belongs to them. This counterclaim is resisted by Mr Caldwell. It is his case that he purchased the equipment in question from the respondents.
Sources of Evidence
3. The Tribunal considered the claim form, the response, documents handed in by both parties and the sworn testimony of Mr and Mrs Caldwell and of Mr McMinn, Mr Lockhart, Mr McGowan and Ms Donovan, Solicitor on behalf of the respondents.
Findings of relevant fact
4. Mr
Caldwell was employed by the respondents from 23 June 1997 until his
resignation on 28 August 2009. During the course of his employment
Mr Caldwell moved from his position as labourer to that of charge hand and was
ultimately employed as Landscape Manager. He was earning £2,500.00 gross pay and
£1885.14 net pay monthly.
5. During the course of his employment Mr Caldwell and Mr McMinn became good friends who trusted and supported each other. By way of example some years ago Mr Caldwell loaned Mr McMinn the sum of £15,000.00 to ease cash flow difficulties.
6. Mrs Caldwell was employed by the respondents in their garden centre shop from 5 March 2001 until 30 August 2009. She earned £410.00 gross, £320.19 net per week. She was a popular and highly regarded employee and regarded by the respondents as vital to the business.
7. Mr Caldwell contends that during his last year of employment the work of the respondents’ business was getting lighter. This is denied by the respondents and internal accounts produced by them support their case that the turnover of the business showed a slight improvement when compared to the same period last year.
8. Notwithstanding
this I find that neither Mr nor Mrs Caldwell were replaced by full time staff
in the short term. Mrs Caldwell was not replaced by a full time member of
staff until March 2010 and Mr Caldwell has still not been replaced. Mr McMinn
is undertaking the work previously carried out by
Mr Caldwell and so I find that on the balance of probabilities the respondents made
cost saving provisions following the resignations of the claimants.
9. In
the run up to Mr Caldwell's resignation the respondents had a number of
concerns regarding his honesty and the manner in which he was carrying out his
responsibilities. These concerns can be categorised under two headings, one
relating to a competing business set up by
Mr Caldwell’s son and the second relating to allegations of dishonesty in
connection with two customers of the respondents whose jobs were being supervised
by Mr Caldwell i.e., Mr Thompson and Mrs Devlin.
10. It is common case that Mr and Mrs Caldwell's son Martin had begun to operate a competing landscape business offering services similar to those offered by the respondents. Mr McMinn was aware of this and was aware that Mr Caldwell had attended a business course with his son. He was also aware of the existence of a website established to promote this business. This became an issue for the respondents when they became aware that Mr Caldwell was working with his son at a time when he was being paid by them and believed to be working on one of their projects.
11. In
or about July 2009 it is common case that Mr Caldwell was removed off a job at
the request of the customer, Mr Thompson. The reason for this is disputed. It
is Mr Caldwell's case that Mr Thompson required extra work to be completed
within the contract price and following his [Mr Caldwell's] ultimate refusal to
do this asked that he be removed from the job and replaced by Mr McMinn who he
allegedly believed to be a "softer touch". It is the respondents’
case that Mr Caldwell was overheard by
Mr Thompson demanding a "kick back" from sub contractors engaged by
him on the project following which he insisted that Mr Caldwell be removed from
the project.
12. A
further difficulty arose in or about this time in relation to invoices for work
prepared by Mr Caldwell in respect of a project carried out by the respondents
and undertaken and supervised by Mr Caldwell for a
Mrs Devlin. It is the respondents’ case that they became suspicious of
Mr Caldwell's honesty in connection with the amount charged for this project
and as a consequence they checked the invoice with the customer. It is their
case that the invoice submitted sought to conceal an over payment charged to Mrs
Devlin which Mr Caldwell sought to retain and also misrepresented the amount
of discount allowed to Mrs Devlin. It is
Mr Caldwell's case that the overpayment represented sums due to his son whom he
had employed as a sub contractor on the project.
It
is Mr McMinn's case that the preparation of this invoice and the charges levied
on foot of it amounted to dishonesty on the part of Mr Caldwell who sought
both to overcharge Mrs Devlin and underpay the respondents.
Mr Caldwell subsequently repaid Mrs Devlin an amount equivalent to the disputed
sum at the insistence of Mr McMinn.
13. I have considered the incidents involving Mr Thompson and Mrs Devlin together. I have considered in particular the fact that Mr. Caldwell repaid the disputed sum to Mrs Devlin. I accept that this was at the insistence of Mr McMinn. Nevertheless the fact of repayment appears to me to be inconsistent with Mr. Caldwell’s evidence that this sum represented money properly due to his son. In these circumstances and for this reason I prefer Mr McMinn's evidence on this point.
. In
relation to Mr Thompson I find that his request to have Mr Caldwell removed
from the site was uncompromising and readily acceded to. In these circumstances
I find it difficult to accept that this was simply because of a dispute over
extra work against a background where
Mr Caldwell had years of experience successfully negotiating with customers and
was in a position of trust. In these circumstances and against the background
of the Mrs. Devlin case, I prefer Mr McMinn’s evidence on this point also.
14. It
is common case that during the course of Mr Caldwell's employment with the
respondents’ and unknown to the respondents an advertisement was placed in
the yellow pages advertising the business established by
Mr Caldwell's son but giving Mr Caldwell's name [Sammy] and mobile telephone
number as the point of contact. l regard this, coupled with the fact of Mr Caldwell’s
attendance on the business course with his son as evidence that Mr Caldwell was
playing an active part in his son's competing business and the fact that the
advertisement referring to him as the contact person was placed without the respondents’
knowledge or consent to be disingenuous on the part of Mr Caldwell. I do not
accept as alleged by Mr Caldwell that he merely attended the course for the
purposes of accompanying his son.
Mr Caldwell’s son is (and was at the material time) an adult interested in establishing a business. It makes no sense to me that in these circumstances and against the background mentioned earlier in this paragraph, that he was accompanied on a course by his father in circumstances where his father had no interest in the business.
15. It
is Mr McMinn's evidence that following the incidents involving
Mr Thompson and more particularly Mrs Devlin and against the background of the
incident where Mr Caldwell was found to be working with his son at a time when
he was required to be working on a project for the respondents, he was no
longer content for Mr Caldwell to continue working for the respondents. It is his
evidence that during a disciplinary meeting held in or around July 2009 Mr
Caldwell admitted to stealing from Mrs Devlin and following emotional
representations from him and in consideration of his agreement to repay the
money taken that he would allow him to resign and "go quietly" rather
than reporting his dishonesty.
16. This
is denied in it's entirety by Mr Caldwell who contends that there was no
disciplinary meeting, that he and Mrs Caldwell accepted an invitation to
resign from their employment in consideration of an offer of payment of sums
equivalent to their statutory redundancy entitlement. It is their contention
that this offer was made by the respondents in an effort to ease the financial
difficulties they were experiencing at the time. It is
Mr Caldwell's case that he feared for the future of the business and in
resigning sought to ensure that he and Mrs Caldwell would be guaranteed their
statutory entitlement.
17. I find no compelling evidence that the business of the respondent was in such extreme financial difficulty that there was a risk of insolvency. I have no compelling evidence that the respondents were experiencing financial difficulties to such an extent that they were minded to encourage the resignation of two key employees and in Mrs Caldwell's case a key and very highly regarded employee. I find some contradiction in Mr Caldwell’s evidence that he feared for the future of the respondent’s established business which he attributed to the recession yet remained committed to promoting his son’s competing business and I have taken into account the evidence corroborated by accounts produced that there had been an improvement in the turnover of the business [para 7].
I
have no compelling evidence that the respondents made the offer described by Mr
Caldwell and find on the balance of probabilities that
Mr Caldwell resigned in the circumstances described by Mr McMinn. I find also
that Mrs Caldwell resigned without any encouragement or incentive to do so from
the respondents.
In reaching these conclusions I have taken into consideration the fact that money was repaid by Mr Caldwell to Mrs Devlin, that Mr Caldwell was removed off the Thompson job and that Mr Caldwell was reprimanded by Mr McMinn for working with his son on the respondents’ time. These factors and the attitude of Mr McMinn to them are in my view consistent with Mr McMinn's description of the July meeting as a disciplinary meeting.
I am also persuaded by the fact that the agreement allegedly reached between the parties was never committed to writing or even recorded in general terms. It is Mr Caldwell's case that this was because of the friendship and trust that historically existed between the parties. I do not accept this as plausible. I find that following events preceding the resignation and particularly following the Mrs Devlin case that the relationship between the parties was strained. I find that Mr Caldwell’s regard for Mr McMinn had diminished. Had this not been the case I do not believe that Mr Caldwell would have allowed an advertisement to be placed which was in open and direct conflict with his employment responsibilities without the full knowledge and permission of Mr McMinn. I have also considered Mr Caldwell's evidence that he raised the matter of agreed payments with Mr McMinn and with Mr Lockhart prior to his leaving giving the impression that he had concerns about payment materialising. Had this been the case and particularly in circumstances where payments were to be made over a period of months postdating the claimant's employment I am all the more satisfied that Mr Caldwell would have insisted that the agreement would have been committed to writing and signed by the parties. Finally I have taken into consideration the fact that the letter written by Mr Caldwell [page 66 of the Samuel Caldwell bundle] in response to Mr McMinn's letter of 11 September 2009 [page 64 of the Samuel Caldwell bundle] makes no reference to an agreement to pay redundancy money.
18. I find that Mrs Caldwell’s resignation was encouraged by Mr Caldwell, that she was not a party to any negotiations whatsoever with the respondents and that there was no contract between Mrs Caldwell and the respondents relating to the payment of redundancy money following her resignation.
19. I
have considered the references in 2 letters exchanged between the parties
following the claimants’ resignation stating that "… you and Jacki will
receive nothing more from this firm… " and " … even helped you make a
new start" I have evaluated Mr Caldwell's evidence that this is consistent
with an agreement having been reached between the parties and
Mr McMinn's evidence to the contrary. In the absence of a written agreement
between the parties and given the findings at paragraph 17 above I am not
persuaded that this is a reference to an agreement to pay the claimant's a sum
equivalent to their statutory redundancy entitlement in consideration of their
resigning.
20. Having considered and evaluated all the evidence including the manner in which it was presented and for reasons given above, I prefer the evidence of the respondents and find no compelling evidence of an agreement on the part of the respondents to pay any redundancy payment to either claimant and I hereby dismiss their claims.
The Counter Claim
21. The respondents counterclaim against Mr Samuel Caldwell for the return of equipment namely a hedge cutter, a cordless drill and a garage heater or in the alternative compensation for these items amounting in total to the sum of £1,190.00. It is their case that these items were unlawfully retained by Mr Caldwell following the termination of his employment. It is common case that Mr Caldwell was arrested and charged with the theft of these items but ultimately was not prosecuted for theft.
22. I am conscious that the decision not to prosecute Mr Caldwell is not necessarily indicative that the items were not unlawfully retained by him and so this counterclaim must be considered by me on foot of the evidence presented to me.
23. It is Mr Caldwell's case that these items were lawfully his on foot of agreements between himself and Mr McMinn to have them offset against work undertaken by Mr Caldwell's son for Mr McMinn and in respect of which receipts were prepared and produced to me by Mr Caldwell. This is denied by Mr McMinn and it is his case that the receipts produced were not seen by him prior to these proceedings.
24. It is common case that in addition to the items specified at paragraph 21, the respondents have claimed for a strimmer, a water pump and a roller which remained in the possession of Mr Caldwell following his resignation but were made available for collection and were collected by the respondents. The claim in respect of these items is consequently withdrawn.
25. I have considered receipts produced by Mr Caldwell for the hedge cutter and the cordless drill at pages 193 and 197 of the claimant's bundle [and referred to at paragraph 23 above].
26. I have considered the fact that the receipts produced have not been signed by Mr McMinn and have considered Mr Caldwell's evidence that these receipts were produced for his own records. In such circumstances and in the interests of accurate record keeping I am concerned that these receipts were not produced to Mr McMinn for information at least.
27. On
resigning from his employment it is Mr Caldwell’s precise evidence that he
"handed over all items belonging to Ness, mobile phone, keys to the pick
up and so on". In these circumstances I am concerned that the items referred
to at paragraph 24 were not mentioned let alone returned and were made
available for collection only following correspondence from
Mr McMinn.
28. In all the circumstances of this case including the stark conflict of evidence between the parties and in the absence of a written agreement I must decide the merits of this counter claim on the basis of the credibility of the witnesses. I have some concerns about the plausibility of Mr Caldwell’s evidence as indicated at paragraphs 26 and 27 above. In general terms and for reasons given earlier, I find Mr McMinn the more credible witness. Consequently I accept Mr McMinn's evidence in relation to the hedge cutter and the cordless drill and I order the return of these items or in the alternative award the sum of £325.00 as claimed in respect of the hedge cutter and £215.00 as claimed in respect of the cordless drill.
29. The counterclaim also includes a claim for £650.00 in respect of a garage heater. It is Mr Caldwell's evidence that Mr McMinn invited him to take the heater which was in need of repair. This is denied by Mr McMinn whose evidence is that the heater had been repaired by his electrician, was working well and was unlawfully taken by Mr Caldwell. It is Mr McMinn’s evidence that this heater is properly valued at between £300.00 and £400.00.
30. For reasons given earlier I prefer the evidence of Mr McMinn in general and in circumstances where there is such a stark conflict of evidence between the parties in relation to the garage heater I have to accept the evidence of Mr McMinn who I find in general terms to be the more plausible witness. Consequently I order the return of the heater or in the alternative the sum of £350.00 to the respondents.
31. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 20-21 December 2010, Belfast.
Date decision recorded in register and issued to parties: