Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/1226_13IT.html
Cite as: [2013] NIIT 1226_13IT, [2013] NIIT 01226_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1226/13

CLAIMANT: Dainius Seskevicius

RESPONDENTS: 1. Laurence McGuigan

2. McGuigan Construction Ltd

DECISION

The unanimous decision of the tribunal is that the claims are dismissed. The majority decision was that the claimant had not discharged the onus of proof to establish that there had been a dismissal. The minority decision was that, on the balance of probabilities, the claimant had resigned.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr P McKenna

Mr I O’Hea

Appearances:

The claimant was represented by Mr C Hagan, Barrister-at-Law, instructed by Faloon & Company, Solicitors.

The respondents were represented by Mr L McGuigan, of the respondent company.

An interpreter, Ms Audrone Bajaraitis, assisted the claimant.

Background

1. The claimant was a construction labourer. He alleged that he had been unfairly dismissed; that the respondent had failed to provide reasons for that dismissal, and that he was owed notice pay. Since those statutory claims may only lie against a respondent who was, at the relevant times, an employer, all claims against the first-named respondent, Mr Laurence McGuigan, were dismissed. The title of the proceedings is therefore amended accordingly to show only one remaining respondent, ie McGuigan Construction Ltd.

2. The claimant is a Lithuanian national who was employed by that remaining respondent, McGuigan Construction Ltd, as a builder’s labourer for four complete years up to 5 April 2013.

3. The claimant asserted that he had been asked by Mr McGuigan, on behalf of the respondent, to work overtime on Saturday 6 April 2013. The claimant states that he had told Mr McGuigan that he had been unable to do so because of his family commitments. He alleges that he was then dismissed.

4. The respondent asserted, in contrast, that the claimant had approached Mr Laurence McGuigan on 5 April 2013 and had asked Mr Laurence McGuigan whether he would have had to work his notice if he left the respondent’s employment. Mr Laurence McGuigan states that he told him that he did not have to work his notice if he resigned. The claimant had then indicated he was going. Mr Laurence McGuigan had then arranged for his lying week and his final week’s pay to be paid to him that evening.

5. This case depends on one very simple issue:-

“Has the claimant discharged the onus of proof placed upon him to prove that he had been dismissed on 5 April 2013 as he alleges?”

If he was to do so, it would be clear to the tribunal that any such dismissal was automatically unfair because of the obvious non-compliance with the statutory three stage procedure, ie a written charge, a meeting and decision and an appeal. The claims brought by the claimant in respect of notice pay and the failure to provide reasons for dismissal would also fall into place following the determination of that simple issue.

6. This was therefore a relatively unusual type of hearing. The claimant and Mr Laurence McGuigan gave their evidence on oath, giving two entirely different versions of events on 5 April 2013. There were no other witnesses called to the tribunal. The tribunal therefore had to assess two testimonies which conflicted in every relevant respect. The tribunal had to determine, bearing in mind the importance of the burden of proof, who was telling the truth and therefore to determine whose version of events was, on the balance of probabilities, correct.

Relevant law

7. Article 130 of the 1996 Order provides:-

“130(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or if more than one, the principal reason) for the dismissal; and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it –

(c) is that the employee was redundant,

(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

8. Article 130(A) of the 1996 Order provides:-

“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a) one of the procedures set out in Part 1 Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal;

(b) the procedure has not been completed; and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”

9. Article 17 of the 2003 Order provides:-

“(3) If in the case of proceedings to which this Article applies it appears to the industrial tribunal that –

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies;

(b) the statutory procedure was not completed before the proceedings were begun; and

(c) The non-completion of the statutory procedures was wholly or mainly attributable to failure by the employer to comply with the requirements of the procedure, it shall, subject to Paragraph (4), increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase more than 50%.

(4) The duty under paragraph (2) and (3) to make a deduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”

The potential uplift applies to the compensatory award. If a dismissal is automatically unfair for non-compliance with the statutory procedure, there is a minimum basic award of four weeks unless that would result in injustice to the employer.

10. The onus is on the claimant to establish that he had been dismissed. This involves the application of the civil standard of proof, ie ‘on the balance of probabilities’.

11. In Morris v London Iron and Steel Co Ltd [1987] ICR 855, the Court of Appeal considered a case where a tribunal had been unable to decide whether there had been a dismissal or a resignation. The matter had been resolved by the application of the burden of proof; the tribunal had decided that the claimant had not discharged his onus of proof and his claim was dismissed. The Employment Appeal Tribunal determined that the tribunal had been obliged to reach a finding on whether there had been a dismissal. The Employment Appeal Tribunal determined in effect that the tribunal had instead decided the issue by relying on the onus of proof. The Court of Appeal overturned the decision of the Employment Appeal Tribunal and restored the decision of the lower tribunal.

12. Lord Justice May stated:-

“A judge or a tribunal of fact should make findings of fact if they can [tribunal’s emphasis]. In most cases, although in some it may be difficult, they can do just that. Having made them the tribunal is entitled to draw inferences from the findings of fact where appropriate. In the exceptional case, however, a judge conscientiously seeking to decide the matter before him may be forced to say ‘I just don’t know’.

Indeed, to say anything else might be in breach of his judicial duty. In this connection, however, I would say this. Speaking from my own experience some people might find it easier to make up their minds than others and it should not be thought that a swift reliance upon where the burden of proof lies and a failure to decide issues of fact in the case, ought in any way to be considered an easy or convenient refuge for anybody who does find it difficult to make up his mind in a particular case. Judges should, so far as is practicable and so far as it is in accordance with their conscientious duty, make findings of fact. But it is in the exceptional case that they may be forced to reach the conclusion that they do not know which side of the line the decision ought to be. In any event, where the ultimate decision can only be between two alternatives, for instance, negligence or not, or as in the instant appeal, dismissal or resignation, then when all the evidence in the case has been called, the judge or the tribunal should ask himself or itself whether, on the totality of the evidence, on the balance of probabilities, drawing whatever inferences may be thought to be appropriate, the alternative which is necessary for the plaintiff to succeed is made out. If it is not, the operation of the principle of the balance of probabilities comes into play and the plaintiff fails.”

13. In Re: H (Minors) [1996] AC 563, Lord Nichols stated:-

“The balance of probabilities standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.”

Claimant’s evidence

14. The claimant stated that he had worked for four complete years as a building labourer for the remaining respondent. He had started that work on a site in Armagh and had worked on several sites thereafter, terminating on a site in the Ardglass Fish Factory.

15. The claimant’s evidence was that he was working for the remaining respondent on the afternoon of 5 April 2013 at the Ardglass Fish Factory.

16. The claimant stated that on each building site in the course of his employment, he had been given health & safety documentation which he had signed without reading. He had difficulty reading or writing in English. He had less difficulty in speaking English and in understanding spoken English, although he was not perfect. He stated and it appears to be common case, that he had no difficulty in conversations with Mr Laurence McGuigan.

17. The claimant alleged that he had never signed a contract of employment with the remaining respondent. When showed a copy of such a contract dated 9 September 2008, which appears consistent with a starting date in and around August 2008, the claimant was positive that he had not seen the document before the tribunal and was adamant that the signature on that document was not his signature. He at no stage during his evidence-in-chief or in cross-examination suggested that he had seen and signed the document but had forgotten having done so, or had not been aware of having done so. He had no stage stated that he had misunderstood what he was signing or that he had signed that document in error. He was instead completely sure that the signature was not his signature and that he had never seen the document. That evidence suggest two obvious alternatives : firstly, that the remaining respondent had produced a backdated forgery of a signed contract of employment; or, secondly, that the claimant’s evidence was deliberately false or reckless. The signature on the contract appears to this tribunal to be consistent with the two other examples of the claimant’s signature, ie on the tribunal claim form and on the claimant’s authorisation to his solicitor.

18. The claimant accepted in evidence that Mr Laurence McGuigan had never dismissed anyone. He also stated that overtime had been offered on a fairly regular basis by either the foreman from time by time or by Mr Laurence McGuigan. He had on occasion accepted overtime and equally had, on occasion, refused overtime when he had been asked by either the foreman or Mr Laurence McGuigan. He accepted that no one had ‘blown a fuse’ at any such refusal in the past.

19. The claimant’s evidence was that such discussions with Mr Laurence McGuigan when overtime had been offered would ‘start in a not friendly atmosphere but would end more peacefully from Mr McGuigan’s side’.

20. The claimant stated that his final salary payment was, disregarding the subject of the claims, incorrect in that it was two days short. He stated that he had not taken two days’ annual leave in his last two weeks of employment as indicated. This was disputed by the respondent. That shortfall, as alleged by the claimant in the course of the tribunal hearing, had not been the subject of any tribunal claim. Equally, it had not been mentioned by a solicitor and had not been pursued on his behalf until he mentioned it in the course of his evidence.

21. The claimant stated that on 5 April 2013 he had been working in the Ardglass Fish Factory. He stated his fellow workers were Mr Frank Daly the foreman, Mr Kevin Kelly, Mr Philip Brown and a worker whose first name was ‘Paddy’ and whose surname he did not know.

22. The claimant had already indicated in his evidence-in-chief that he had spoken to Mr McCrory about his initial appointment. In cross-examination, when challenged about the signed contract, the claimant initially stated that he could not remember who his foreman had been when he started work in Armagh in 2009. When asked whether he really had forgotten the first foreman who had started him in the respondent’s employment, he quickly, and without explanation, remembered it had been Mr Arthur McCrory.

23. The claimant’s evidence in relation to Mr Philip Brown was variable. He described Mr Brown first as ‘not working directly for the respondent’ and as ‘self-employed’. He then asserted that Mr Brown had worked ‘consistently’ with the respondent. He then stated that he had no evidence that Mr Brown had been an employee of the remaining respondent; he stated that he had never said Mr Brown had worked for that respondent; Mr Brown worked for another company.

24. The claimant did not resolve the contradiction between the two versions; ie Mr Brown being self-employed or Mr Brown having worked for another company. That other company was never identified even though the claimant asserted that Mr Brown had worked consistently with him.

25. The claimant stated that he had been working in a corridor in the Ardglass Fish Factory on 5 April 2013 and that he had observed and had heard Mr Laurence McGuigan asking Mr Philip Brown to work at the weekend for him. Mr Laurence McGuigan then approached the claimant and asked the claimant if he could work on the next day, ie the Saturday 6 April 2013. He stated that he had explained to Mr Laurence McGuigan that he was not able to do so because of family arrangements. He stated that he had pointed out to Mr Laurence McGuigan that he had worked for the two previous weekends on both Saturdays and Sundays.

26. The claimant stated that Mr Laurence McGuigan had insisted that he needed him on Saturday 6 April 2013 and that if the claimant did not work on that day, there would be no more work for him on Monday. The claimant then stated that he had told Mr Laurence McGuigan to give him a P45 and a ‘severance payment’. He states that he meant a notice payment by that expression.

27. The one witness who could shed any light on the two conflicting versions of what had happened on 5 April 2013 was Mr Philip Brown. The claimant could not explain why no attempt had been made to call him as a witness. Despite opportunities, it was never asserted by the claimant or by his representative that the claimant had attempted to find Mr Philip Brown but had not been able to find him or indeed that the respondent had been asked by the claimant to identify him and to provide an address. It appears that Mr Philip Brown had been ignored by the claimant for the purposes of this tribunal hearing.

28. The tribunal has to take account of the claimant’s failure to produce a witness who he actually asserted on evidence had overheard the alleged conversation between the claimant and Mr Laurence McGuigan and who he alleged on oath could have supported his version of events. Mr Laurence McGuigan, in contrast, stated that he did know Mr Philip Brown and had never heard of him.

Tribunal’s view of claimant’s evidence

29. The tribunal’s view of the claimant’s evidence is that it was unsatisfactory in certain respects and incapable of belief. Firstly, the claimant had stated briefly that he did not remember his first foreman in Armagh in 2009. That was in the context of cross-examination on whether or not he had signed the written contract of employment which was being put to him. He would therefore have been in a position where he would have felt vulnerable by any admission. He had already told the tribunal, in evidence-in-chief, that he had spoken to Mr Arthur McCrory about the job advertisement and his initial appointment. His sudden remembrance of the foreman being Mr Arthur McCrory when challenged by the Chairman was unconvincing. Furthermore, the contract document showing the location of employment as Armagh and giving the start date in September 2009 was consistent with the claimant’s agreed starting date in August 2009 and with his agreed starting location in Armagh.

The claimant’s signature on the alleged document was consistent with all the known examples of his signature. He had already admitted signing documents without reading them and had already admitted he had difficulty with written English. Nevertheless he was adamant, in cross-examination, that he had never seen the contract before the tribunal hearing and was equally adamant that the signature on that document was not his. That evidence could only be accepted if the tribunal were prepared to conclude that there had been backdated forgery of the contract document. Such a backdated forgery would have had to have been carefully prepared by or on behalf of the remaining respondent in circumstances where such a forgery would have advanced the remaining respondent’s case very little. It seems improbable to this tribunal that the contract document was anything other than genuine. The claimant’s reaction to this document was disturbing and his repeated assertion that he had never seen it and that the signature was not his was entirely unconvincing given his earlier acceptance that he had difficulty with written English and his earlier acceptance that he had signed documents without reading them. It is difficult to accept his assertion that he knew that the documents he had signed were restricted to Health & Safety documentation.

30. The claimant’s failure to call Mr Philip Brown to give evidence, or to attempt to have called him, is particularly significant. The claimant had, from the very start, the benefit of his solicitor’s advice and later of counsel’s advice. He would have known in advance of this hearing that there were going to be two different versions of the events on 5 April 2013 and that those two different versions would be tested at the hearing. The version to be put forward by the respondent was perfectly clear within the terms of the response to the tribunal. The claimant knew of the conflict to be resolved. Despite that, and despite the obvious and crucial importance of any corroborative evidence, the claimant failed, without any or adequate explanation, to call the one witness who could, he alleged, shed crucial light on the alleged incident on 5 April 2013. That has to be significant.

31. Another matter which had some bearing on the claimant’s credibility and therefore on whether or not he had discharged the onus of proof placed upon him to establish that there had been a dismissal, was his failure to present a convincing case in relation to his alleged mitigation of loss. During cross-examination, the claimant was unable to explain why he had not signed up with an employment agency until September 2013 and why he had then restricted his availability in respect of that employment agency to certain narrow employment fields. He had focused on his profession as a tiler whereas he had been moving from a minimum wage job as a builder’s labourer and was unable to present convincing evidence of any adequate search for minimum wage employment as a means of mitigating that loss. His evidence was at times inconsistent. He appeared to assert at one point that he was not prepared to work for less than £250.00 net per week but then moved from that to asserting that he would have been prepared to work for perhaps £200.00 net per week depending on where the job was located.

32. Overall, the tribunal’s view of the claimant’s evidence was that it was unconvincing and unsatisfactory. Given that the credibility of the claimant was crucial to the determination of the first issue, ie whether or not the claimant had discharged the onus of proof placed upon him to establish, on the balance of probabilities, that there had been a dismissal on 5 April 2013, this has to be determinative.

Remaining respondent’s evidence

33. The only witness to give evidence on behalf of the remaining respondent was Mr Laurence McGuigan. Mr Laurence McGuigan never asserted, and it was never asserted by anyone on behalf of the remaining respondent, that the disputed conversation on 5 April 2013 had been overheard or had been observed by anyone else. The tribunal therefore cannot draw any conclusions from the fact that there was only one witness on behalf of the remaining respondent.

34. The approach of Mr Laurence McGuigan to this litigation and to the tribunal hearing was both eccentric and startling. He had apparently formed the view that Faloon & Company, Solicitors, were not properly the claimant’s representatives unless that had been established to his complete satisfaction. On that basis, he did not take the view that he was obliged to follow the normal procedure in relation to discovery or requests for additional information. He, apparently after having researched the matter on the internet, asserted that unless a ‘wet-ink’ ‘attested’ ‘both sides of the page’ form of authorisation were produced to his entire satisfaction, matters would not proceed further. He commenced the tribunal hearing with an apparently genuinely held argument to the effect that the proceedings were void. When he realised that tribunal proceedings against him as a named individual were being withdrawn, he also objected to that withdrawal.

35. The fact that an individual approaches litigation in a bizarre and unrealistic manner does not, of necessity, mean that individual is a liar or that he is acting with malign motives. Mr Laurence McGuigan would not be the first person to take a pedantic and unusual approach to litigation having been informed by the internet.

36. Mr Laurence McGuigan asserted that he had never heard of Mr Philip Brown. No evidence was produced to the contrary and his assertions appeared genuine.

37. Mr Laurence McGuigan stated that he had been on site at the Ardglass Fish Factory on 5 April 2013. The claimant had approached him and had then asked if he (the claimant) had to give a week’s notice before leaving employment. Mr Laurence McGuigan stated that he had told him that he did not need to give such notice and that he had arranged the final payment of his salary, together with a lying week, in a telephone call to his head office.

38. The evidence from Mr Laurence McGuigan was that he regarded the building trade as ‘nomadic’. He stated that employees came and went and that his practice was not to fall out with them when that happened. He recognised that he might need their services again in the future and might need to contact them to fill a gap. As against that, the claimant was an employee who had been described by Mr Laurence McGuigan as ‘excellent’ who had worked for the remaining respondent for over four years. Those four years included difficult times where the economy was in recession. The obvious failure on the part of Mr Laurence McGuigan to seek further details or to try and talk the claimant out of leaving is surprising.

39. Mr Laurence McGuigan stated that he had formed the impression in this conversation that the claimant had been in a hurry to go to another job. He stated this impression was not based on anything the claimant had said in particular; it was based only on the fact that the claimant had asked whether he had to work a week’s notice before going.

40. Mr Laurence McGuigan said it had been a busy site but he could not recall anyone having observed or having overheard this exchange. He was doing other matters and had kept his head down.

41. Mr Laurence McGuigan said the claimant was bussed some 60 miles to and from the building site in Ardglass each day. The claimant had not been paid for travelling time and was on minimum wage. He would therefore have had perhaps three hours unpaid in a minibus each day on his way to and from a minimum wage job. The claimant had not previously complained about this or about other working conditions.

42. Mr Laurence McGuigan stated he had received no communication from DSD regarding the claimant’s Social Security claim. He stated he would have been dealt with by the administrative staff. He stated that he was the contracts manager of the remaining respondent and was not a director.

43. Mr Laurence McGuigan had no proof that a copy of the 2009 terms and conditions of service document had actually been furnished to the claimant or had been left with the claimant at the relevant time. He accepted that openly and without prevarication. When challenged on why he had not provided a copy before the tribunal hearing to Faloon & Company, Solicitors, he again stuck to his view, apparently genuinely, that he did not have to do so unless Faloon & Company’s authority to act in what he regarded as a purely employment matter was established to his entire satisfaction. He had not come across this situation before.

44. Mr Laurence McGuigan stated that he suspected the claimant had been working on his own account since the termination of employment but accepted that he had no evidence to support this suspicion.

Tribunal’s view of the remaining respondent’s evidence

45. This evidence, as with the evidence of the claimant [but perhaps to a lesser extent], raises doubts. In an exercise in which a critical view must be taken of the evidence of both the claimant and that of the remaining respondent, neither evidence can be regarded as fully satisfactory. In particular, it seems odd that an employer, without any form of enquiry or challenge, accepts a resignation from a four year employee who he regarded as ‘excellent’. To a lesser extent it is odd that Mr Laurence McGuigan did not ask for a week within which to obtain a replacement or make other arrangements.

46. As indicated above, the remaining respondent’s attitude to litigation and to the presence of a firm of solicitors in what he regarded as a purely employment matter was extraordinary and pedantic. That said, his attitude on this point appeared to be consistent and, while obviously mistaken, genuine. He took it to the point of seeking an Order declaring the proceedings void. The tribunal has concluded that this attitude cannot of itself support a conclusion or an inference that his evidence was false in any particular.

Decision-making

47. This is a claim where both the claimant and the remaining respondent have put forward unsupported and diametrically opposite versions of what happened or what did not happen in a brief conversation on 5 April 2013.

48. The claimant has the initial hurdle of establishing, on the balance of probabilities, that he had been dismissed as he alleged.

49. It is clear that the tribunal must try, if it can, to reach a finding of fact on whether the claimant’s version or the remaining respondent’s version were to be preferred on the balance of probabilities. However, in a situation where neither the claimant or the remaining respondent has produced fully credible evidence to the satisfaction of the tribunal the onus of proof cannot be disregarded and cannot be put to one side.

50. Of particular importance, the tribunal is concerned by the fact that the claimant, with the benefit of legal advice, did not provide, and apparently did not seek, evidence from Mr Brown, which he then proceeded to assert on oath would have resolved the matter. Of equal importance, the tribunal concludes that the claimant’s evidence in relation to the contract document was false and that the most likely explanation was that he had signed the document, amongst other documents, which he did not and could not have read. It is the sort of document which would have been presented to a worker at or shortly after the beginning of his employment and it is simply incredible to suggest that a backdated forgery would have been prepared at this stage by the remaining respondent to achieve very little.

51. On that basis, the tribunal has serious doubts about the credibility of the claimant and indeed about both parties.

Majority decision

52. The majority decision of the tribunal is that it cannot conclude, on the evidence before it, and on the balance of probabilities, whether the claimant had been dismissed or had resigned. This is one of those rare occasions where the conflicting evidence from both parties is open to serious challenge and where neither can be preferred in terms of probability.

53. The majority decision is therefore that the claimant had failed to discharge the onus of proof in relation to whether these had been a dismissal. His claims are therefore dismissed.

Minority decision

54. The minority decision is that the on the balance of probabilities, the claimant had resigned on 5 April 2013 and had not been dismissed. The failure of the claimant to call or even to seek to locate Mr Philip Brown was significant. Furthermore, the reaction of the claimant to the contract document, further diminished his credibility. The respondent’s reaction to the litigation was unreasonable and mistaken. It was however consistent. On balance, the minority decision was that, on the balance of probabilities, the respondent’s version of events was to be preferred. The claim would therefore be dismissed in any event.

Vice President:

Date and place of hearing: 10 October 2013, Belfast

Date decision recorded in register and issued to parties: