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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCartan v Jeremy Jackson [2014] NIIT 2058_13IT (18 August 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/2058_13IT.html
Cite as: [2014] NIIT 2058_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2058/13
CLAIMANT: Gerard McCartan
RESPONDENT: Jeremy Jackson
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed, did not receive payment for wages, holidays and statutory notice to which he was entitled. The tribunal awards the claimant £6,100.00 for unfair dismissal; £211.25 for unpaid wages, payment for untaken holidays of £861.25 and notice pay of £3,975.00.
Constitution of Tribunal:
Employment Judge: Employment Judge Greene
Members: Ms L Gilmartin
Mr E Miller
Appearances:
The claimant was represented by Mr S Doherty, of counsel, instructed by Worthingtons Solicitors.
The respondent was represented by Mrs D Jackson, mother of the respondent.
1.0 SOURCES OF EVIDENCE
The tribunal heard evidence from the claimant and on behalf of the respondent from Mrs Jackson. The tribunal also received seven bundles of documents amounting to 221 pages approximately and a number of legal authorities.
2.0 THE CLAIM AND DEFENCE
The claimant claims that he was unfairly dismissed; suffered an automatically unfair dismissal; was made redundant; did not receive wages that were due to him; did not receive holiday pay to which he was entitled; did not receive notice pay; and the respondent failed to provide him with an itemised pay statement. The respondent disputes the claimant’s claims in their entirety and states that the claimant resigned or discontinued working for the respondent. Further, it is asserted on his behalf that the claimant was not an employee at the time of termination of his contract. On behalf of the respondent it is also asserted that the claimant was a partner in the business; had previously received a redundancy payment; and that there had been a transfer of undertaking to a new partnership.
3.0 ISSUES
Legal Issues
3.1 Was the claimant an employee for the purposes of The Employment Rights (Northern Ireland) Order 1996?
3.2 Was the claimant unfairly dismissed for the purposes of The Employment Rights (Northern Ireland) Order 1996?
3.3 Was the claimant’s dismissal automatically unfair by reason of a failure to follow the statutory dismissal procedures?
3.4 Was the claimant entitled to a redundancy payment pursuant to Article 170 The Employment Rights (Northern Ireland) Order 1996?
3.5 Was there a transfer of undertaking from the respondent to a third party?
3.6 If there was such a transfer is the claimant an employee of the third party?
3.7 Did the respondent fail to provide to the claimant an itemised pay statement contrary to Article 40 of The Employment Rights (Northern Ireland) Order 1996?
Factual
3.8 Did the claimant become self-employed in March 2013?
3.9 Is the job carried out by the claimant still available to him?
3.10 Was the claimant paid redundancy in March 2011?
3.11 Did the claimant become a partner with the respondent and James McWilliams between 15 and 20 January 2010?
3.12 Was the claimant laid off by the respondent on account of the latter’s serious illness?
3.13 Was the claimant dismissed or did he resign?
3.14 If the claimant were dismissed, what was the reason for his dismissal?
3.15 If the claimant were dismissed, were the statutory dismissal procedures followed?
3.16 If the claimant were dismissed did he receive notice?
3.17 If the claimant did not receive notice to which he was entitled is he entitled to pay in lieu of notice?
3.18 Is the claimant entitled to payment for untaken holiday leave to which he was entitled?
3.19 Is the claimant owed outstanding wages?
3.20 If any of the claimant’s claims are upheld to what compensation is he entitled?
4.0 FINDINGS OF FACT
4.1. The respondent is the successor in title to a number of businesses in which the Jackson family was involved and in which the claimant was an employee.
4.2 The claimant was born on 2 September 1979. He began employment in September 1997 with the respondent’s predecessor as an electrical engineer. He continued to work as an electrical engineer for the business through a succession of changes of ownership from the current respondent’s father to the current respondent’s mother to a partnership between the current respondent and James McWilliams and finally to the respondent alone. His continuity of employment was not interrupted.
4.3 The claimant worked 37½ hours per week. His earnings appear to the tribunal, insofar as it can be worked out in the absence of proper documentation, to have been £331.25 per week net and £450.00 per week gross.
4.4 The respondent alleges that the claimant became a partner in the business along with the respondent and James McWilliams in or about January 2010. There is a complete absence of any documentation which supports the claimant ever having been a partner in a business. The claimant agrees that he was invited to become a partner but declined. The respondent contends that he became a partner but only remained so for two days and then withdrew from the partnership. There is documentary evidence to show that in or about November 2010 there was a partnership involving the respondent and James McWilliams but there is not any documentary evidence to show that the claimant was a partner at any time.
4.5 Having considered this matter the tribunal is not persuaded that the claimant ever was a partner with the respondent and/or James McWilliams in providing electrical services. Therefore, there is no question of his continuity of employment having been interrupted by reason of him becoming a partner or his status as an employee having been interrupted or terminated for that reason.
4.6 The respondent also contends that the claimant went self-employed in or about March 2013. The claimant denied absolutely having gone self-employed. The respondent alleged that this was so that the claimant could be paid cash in his hand and would not be responsible for making submissions of any income tax or VAT, payable by him, until 18 months later. However, on the respondent’s contention, he received £330.00 per week as a self-employed person, approximately the same amount that he received when he was an employee with his tax already paid. There is no logical reason why the claimant should have done something which would have been significantly to his financial detriment on the basis of the evidence put before the tribunal. Again, there was not any documentary evidence that might reasonably be expected to exist were the claimant to have become self-employed. Nor were there any witnesses from meetings, when this is alleged to have been discussed, present to give evidence to the tribunal. Accordingly, we are not persuaded that the claimant ever became self-employed.
4.7 The respondent also alleged that in or about March 2011, following a withdrawal from the business of essentially all the money belonging to the business by James McWilliams unilaterally, that James McWilliams made a redundancy payment to the claimant. The claimant disputed that he ever received such a redundancy payment. There is not any documentary evidence whatsoever to suggest that he had received a redundancy payment. Furthermore the money or the quantum of money alluded to by the respondent as indicative of the claimant having received the redundancy payment does not make sense, in that it is not a multiple of a week’s wages.
4.8 Accordingly, the tribunal is not persuaded that the claimant received a redundancy payment.
4.9 The tribunal therefore regards the claimant as having been continuously employed by the respondent, including his predecessors in title, from September 1997 until the termination of his contract in September 2013.
4.10 The tribunal was provided with a series of texts from September 2013. These texts were principally between the claimant and the respondent.
4.11 The claimant referred the tribunal to a number of texts between him and the respondent on 3 September 2013 in which he stated:-
“Do I still have a job mate or have i been made redundant?”;
a reply from the respondent which stated:-
“I need words with my mum, I have work on but she is stoping from doing it, it’s for oconnors and the fella that owns boyles bar paid me today and he wants more work done,”;
and a further text on 4 September 2013 from the respondent to him where the respondent stated:-
“Sure u and my mum can run the firm,”
The claimant contends that the inevitable conclusion from these texts is that he had been dismissed by the respondent.
4.12 The tribunal is not persuaded that these texts amount to a dismissal by the respondent. In so concluding the tribunal had regard to the following matters:-
4.12.1 The wording in the texts themselves does not suggest that the respondent is dismissing the claimant.
4.12.2 That while it may be possible, in relation to some of the texts, to suggest that they are consistent with the claimant having been dismissed they are also consistent with the claimant continuing to be an employee of the respondent.
4.12.3 It is clear from a later text, to the claimant from the respondent, that there was a further attempt at discussion. In the text the respondent stated on 8 September 2013:-
“... we need to get this sorted out and get back to work, I have tried but I am not getting any reply.”
4.13 In support of his contention that he was dismissed the claimant also relies on a letter of 9 September 2013 in which he enquires about his redundancy payment. The respondent denies ever having received such a letter and further that had such a letter been received the respondent would have been aware of it. The tribunal is unable to decide where the truth lies as between this assertion and denial.
4.14 The last day on which the claimant did any work was on 28 August 2013. Thereafter it appears that the respondent business had a problem obtaining public liability and product liability insurance. The respondent was of the view that no work could be done by its employees in the absence of the appropriate insurance being in place and therefore Mrs Jackson, an adviser to the respondent, prevented any work being done until the insurance was in place.
4.15 On the basis of the evidence before the tribunal, a new policy of insurance was not put in place. Therefore the claimant was unable to do any work.
4.16 After 28 August 2013, the claimant did not do any further work for the respondent business nor did he receive any further wages from the respondent business. On 3 September 2013 the claimant, by text to the respondent, asked if he had been made redundant or if he had a job. The respondent replied by text that there was work to be done but that Mrs Dolores Jackson was stopping it from being done. Further text messages were exchanged between the claimant and the respondent on 4 September 2013 postulating the possibility of meeting up with Mrs Jackson to sort things out. On or about 5 September 2013 Mrs Jackson paid the claimant £100.00 from her own pension and £20.00 for fuel. Apart from that, the claimant did not receive any further money from the respondent.
4.17 On 8 September 2013 the respondent removed the business van which was at the claimant’s home. By Monday 9 September 2013 the claimant no longer had the business van and had not been provided with any work. During the week he lodged a claim for benefit with the Social Security Agency as he regarded himself as being unemployed.
4.18 Around this time the claimant was exploring the possibilities of undertaking taxi work and was discussing this with Mrs Jackson and she was considering assisting him in the purchase of a vehicle. While this could be indicative of the claimant’s intention to resign from the employment with the respondent it is not necessarily the case. It could have been to augment his income when not working for the respondent. There was no evidence before this tribunal to show that it was the claimant’s intention to leave the respondent’s employment.
4.19 The respondent contends this is in keeping with the claimant’s self-employed status which the tribunal has already rejected.
4.20 The respondent sent a text to the claimant on Saturday 14 September 2013, part of which was available to tribunal, in which the respondent stated:-
“If u r going to the market 2morrow do u want to lift the van, means u can pick me up on Monday go to my mum’s and we can sit and talk and get all this ...”
4.21 The claimant did not attend at work on Monday 16 September 2013. At that stage public and product liability were not in place and the claimant had already lodged a claim with Social Security Agency as he considered himself to be unemployed.
4.22 After the claimant made a claim for benefit from the Social Security Agency he made efforts to seek employment through recruitment agencies. The claimant refers to that in his e-mail of 21 September 2013.
4.23 The claimant received a payment from the Social Security Agency in relation to Jobseeker's Allowance of £92.19 on 25 September 2013.
4.24 The claimant did not receive any further work after 28 August 2013. He received £120.00 from Mrs Jackson on 5 September 2013. The respondent did not provide him with work nor pay his wages nor lay him off nor renegotiate his payment nor shorten his working week nor make any other arrangement with him in relation to his employment. In the tribunal’s view the claimant is entitled to consider himself to have been dismissed.
4.25 The respondent denied that the claimant was dismissed but in light of our findings of fact we think the dismissal occurred on 9 September 2013 when despite the availability of work the respondent had not put appropriate insurance in place to enable the claimant to do the work and had removed the business van which was used by the claimant to do his work.
4.26 The tribunal is very disappointed that pertinent documentary evidence, some of which in the tribunal’s view could have been obtained, was not available to it.
4.27 There was not any evidence before the tribunal that there had been a transfer of undertaking from the respondent to another entity prior to the claimant’s dismissal.
4.28 The claimant did not receive any notice pay. He is claiming one week’s wages. He never worked after 28 August 2013. He only received £120.00 from Mrs Jackson on 5 September 2013. The tribunal is satisfied that he is owed one week’s wages of £331.25 minus £120.00 received from Mrs Jackson.
4.29 The claimant had 2.6 weeks of untaken holiday leave when he was dismissed.
4.30 There was not any evidence before the tribunal to suggest that the respondent had laid the claimant off work by reason of the respondent’s serious illness.
5.0 THE LAW
5.1 An employee is an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment (Article 3(1) The Employment Rights (Northern Ireland) Order 1996).
5.2 A contract of employment is a contract of service or apprenticeship, whether express or applied, and (if it is express) whether oral or in writing (Article 3(2) The Employment Rights (Northern Ireland) Order 1996).
5.3 To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair. If an employer establishes both of these requirements then whether the dismissal was fair or not depends on whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 The Employment Rights (Northern Ireland) Order 1996).
5.4 Where an employee is dismissed and the statutory dismissal procedure is applicable but has not been complied with and the non-compliance is wholly or mainly attributable to the failure of the employer to comply with its requirements the dismissal is automatically unfair (Article 130 The Employment Rights (Northern Ireland) Order 1996).
5.5 Where the statutory dismissal procedure has not been completed and the failure is wholly or mainly the employer’s, an Industrial Tribunal shall increase any award by 10% and may raise the increase to 50%, if it considers it just and equitable to do so, unless there are special circumstances which make the increase unjust or inequitable (Article 17(3) and (4) The Employment (Northern Ireland) Order 2003).
5.6 An employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or by a relevant provision of the worker’s contract of employment where the worker has previously signified in writing his agreement or consent to the making of the deduction (Article 45 The Employment Rights (Northern Ireland) Order 1996).
5.7 In certain circumstances an otherwise unfair dismissal may be rendered fair if the unfairness is merely procedural and the employer can show that the decision would have been the same even had fair procedures been adopted (Article 130(2) The Employment Rights (Northern Ireland) Order 1996).
5.8 An employer shall make a redundancy payment to any employee if the employee has been dismissed by the employer by reason of redundancy or is eligible for a redundancy payment by reason of being laid off or kept on short-term (Article 170 The Employment Rights (Northern Ireland) Order 1996.
5.9 Where an employee’s contract of employment is terminated and, he has not taken up all the paid leave to which he is entitled, the employer shall pay to him the value of such untaken holiday leave.
5.10 “A partnership under the 1890 Act is not a separate legal entity hence the partners are all in a contractual relationship with each other in a joint venture, and this is inconsistent with the hierarchical relationship of employer and employee”. Clyde and Co LLP and John Morris v Krista Bates Van Winkelhof [2012] EWCA Civ 1207 at paragraph 57).
5.11 A member of an LLP who, if he had not been registered as an LLP would have been a partner in an 1890 Act of partnership, can be neither an employee nor a limb (b) worker within the meaning of Article 3 The Employment Rights (Northern Ireland) Order 1996. (Clyde and Co LLP and John Morris v Krista Bates Van Winkelhof [2012] EWCA Civ 1207 at paragraph 67).
6.0 APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES
6.1 The tribunal is satisfied that the claimant is entitled to treat himself as having been dismissed by the respondent because the respondent failed to provide him with work or pay him his weekly wage or come to some other arrangement with him that would maintain his employment status.
6.2. Doing the best it can, and in the absence of pertinent documents, the tribunal believes that on 9 September 2013 the claimant was dismissed.
6.3 The respondent therefore has not provided to the tribunal the reason for the claimant’s dismissal as it disputes that the claimant was dismissed and therefore cannot show that it falls within one of the statutory grounds that permit a dismissal to be carried out fairly.
6.4 The tribunal is therefore satisfied that the claimant was unfairly dismissed and this dismissal is automatically unfair in that the respondent has not followed any of the statutory procedures which it is obliged to do where a dismissal occurs.
6.5 The claimant indicated at the hearing that he was not seeking an uplift by reason of a failure to apply the statutory procedures, nor was he seeking any compensatory award should he succeed in his claim for unfair dismissal.
6.6 As the respondent denies dismissal and therefore offers no reason for the dismissal it cannot be said that had the procedures been followed the claimant would have been dismissed in any event.
6.7 The tribunal is not satisfied that the respondent had ceased or intended to cease to carry on the business for the purposes for which the claimant was employed by the respondent. Therefore a redundancy situation did not arise. In so concluding the tribunal had regard to the following matters;
6.7.1 There was evidence before the tribunal that there was work available to the respondent business.
6.7.2 There was evidence that the respondent wished to continue to operate the business.
6.7.3 The cessation of work arose by reason of the absence of public liability and product liability insurance and the understandable decision of Mrs Jackson that no work should be done until that insurance was in place.
6.7.4 Though some efforts were apparently made to put the appropriate insurance in place it did not happen.
6.8 The tribunal is satisfied that the claimant mitigated his loss – though this is somewhat academic as the claimant is not seeking any compensatory award.
6.9 The claimant stated in open tribunal, through his counsel, that he was not seeking any compensation by way of future loss.
6.10 The claimant therefore is entitled to damages for having been unfairly dismissed which the tribunal measures in the following amount:-
Basic Award
£450 x 13 = £5,850.00
Loss of statutory rights = £ 250.00
£6,100.00
6.11 The claimant did not receive any notice pay and is entitled to £3,975.00 (£331.25 x 12).
6.12 The claimant is also entitled to wages for one week in accordance with his claim minus £120.00 received from Mrs Jackson amounting to £211.25 (£331.25-£120.00).
6.13 The claimant is also entitled to payment, for untaken holiday leave, of £861.25 (£331.25 x 2.6).
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 31 March 2014, 1, 6 and 8 May 2014, Belfast.
Date decision recorded in register and issued to parties: