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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Neill v Redcaps Security Solutions Ltd [2014] NIIT 553_14IT (08 October 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/553_14IT.html
Cite as: [2014] NIIT 553_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 553/14
CLAIMANT: Christopher O’Neill
RESPONDENTS: 1. Redcaps Security Solutions Ltd
2. Sean Brown
DECISION
The decision of the tribunal is that:
(A) The claimant’s claims against Sean Brown are not well-founded. Accordingly, those claims are dismissed.
(B) The claimant’s claim against Redcaps Security Solutions Ltd (“the Company”) is well-founded and it is ordered that the Company shall pay to the claimant the sum of £1,328 in respect of wages.
(C) The claimant’s expenses claim against the Company is well-founded. It is ordered that the Company shall pay to the claimant the sum of £126 in respect of expenses.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Buggy
Appearances:
The claimant was self-represented.
Mr Sean Brown represented the Company.
Mr S Brown also represented himself.
REASONS
1. The individuals who are mainly significant in the context of this case are the following:
(1) the claimant;
(2) a man who, in this Decision, will be referred to as ‘X’; and
(3) the respondent, Mr Brown.
2. Until 2013, X carried out a security installations business in Cookstown, as a sole trader. For a lengthy period, the claimant in this case was X’s employee in that business. X got into financial difficulties. (X became bankrupt at the end of 2013.)
3. Mr Brown is in control of the Company. During 2013, X allegedly ceased to operate any business on his own behalf. According to Mr Brown, the Company soon afterwards began to operate a business, which was practically identical to the business which had previously been carried out by X as a sole trader. The relevant business of the Company carried out precisely the same services as X used to carry out in his capacity as a sole trader; and the Company had nearly precisely the same circle of customers as X (when operating on his own account) had had.
4. By Christmas 2013, the position was as follows. X was in charge of the day-to-day relevant business of the Company. He was the Company’s manager of that business. X was an employee of the business. So was the claimant. Mr Brown had authorised X to allocate tasks to the claimant.
5. The claimant set out details of his claim in his claim form, in the following terms:
“I last worked for the company on 19th March and received a pay-slip by e-mail dated 17th March stating that my pay for the previous month was £1242.92. However, I did not receive this pay, without any adequate reasons being provided, and thus have not subsequently attended to work.
In addition, I provided the company with receipts for expenses for the same period totalling £125.71, which I have also not received.”
6. X’s role as the Company manager included the function of identifying the extent of any pay due to the claimant. On 17 March 2014, X issued a pay-slip in respect of the claimant, which stated that the claimant was then due £1,328 gross (£1,242.92 net) in respect of the last pay period.
7. By the end of March 2014, Mr Brown had fallen out with X, and was alleging that X had defrauded the company of approximately £5,000 worth of stock. He referred the matter to the police.
8. He declined to pay the claimant the sum of wages due to the claimant according to the wages slip, and he declined also to pay the claimant’s claim in respect of expenses (which has already been referred to above).
9. The Company’s original grounds for resisting the claims, as set out at paragraph 6.2 of the response form (which was completed by Mr Brown) was as follows:
“Mr O’Neill has given no evidence to support his claim, apart from a pay-slip sent to him by [X], who was under police investigation [for] theft and fraud from the company. As [X] was Mr O’Neill’s former employer and has known each other for a number of years, that it was [X] that issued this pay-slip. At present the police are still looking to question Mr O’Neill over the whereabouts of over £5,000 worth of missing stock from the company.
As there is an ongoing police investigation I cannot comment on too many details, but at this moment I am led to believe that in the month of March 2014 that Mr O’Neill was not employed by myself but was in fact working for his former employer [X]. The fact [is] that Mr O’Neill cannot explain his whereabouts during this month after being asked several times to do so.
This is not the first time that I have had problems with Mr O’Neill which were all reported to Siobhan Woods at the Magherafelt Jobs & Benefit Office.”
10. This case first came on for hearing on 3 June 2014. It was then postponed, at the request of Mr Brown, because he wanted details, of some of the jobs carried out by the claimant during the disputed period (the period in respect of which wages are being claimed by the claimant in those proceedings). My understanding at that time was that, if the requested details were provided, and if Mr Brown was satisfied with those details, he would pay the claimant the sums claimed by him. As I pointed out in my record of proceedings in respect of the 3 June 2014 hearing:
“Basically, the position is as follows. Mr Brown says that, during the disputed period, the employing company’s manager [X] directed [the] claimant to carry out work which was for the benefit of [X’s] own clients, as distinct from being for the benefit of the employing company’s clients.”
11. During the month of June, the claimant did indeed provide Mr Brown with details of many of the jobs on which he had allegedly been engaged during the disputed period. However, Mr Brown was unwilling to arrange for the Company to pay up, because (according to him) there was no indication that any sums had been paid to the Company in respect of any of the relevant jobs, and therefore no indication that the relevant work had been Company work.
12. During the hearing on 3 June, I had informed Mr Brown that, in my view, there was a strong argument that, even if the claimant had been working on X’s client’s jobs, as distinct from working on the Company’s client’s jobs, he would nonetheless be entitled to wages, in respect of any period during which he was still employed by the Company.
13. That was the background to a development which occurred during the course of a hearing in this case on 26 June. During the course of that hearing, Mr Brown told me that, in February, he had informed Ms Siobhan Woods (of Magherafelt Jobs & Benefits Office) that the claimant had been dismissed during that month. I told him that, in those circumstances, Ms Woods would be an important witness in this case. In response to my query about that matter, Mr Brown told me that he intended to call Ms Woods as a witness. I told him that if Ms Woods was unwilling to attend voluntarily, I would be willing to issue a witness order, compelling her to attend.
14. Mr Brown did, eventually, ask for a witness order in respect of Ms Woods.
15. Ms Woods gave evidence when the hearing resumed on 21 August. She was obviously a witness who had “no axe to grind”. In any event, I found her to be a credible witness. She produced documentation which shows that what Mr Brown had told me (about informing Ms Woods in February that the claimant had been dismissed during that month) was entirely inaccurate. During her sworn oral testimony, Ms Woods told me that Mr Brown had made no such observation to her, at any time during the month of February or, indeed, at any time shortly thereafter.
16. On 5 August 2014, in requesting the issuing of the witness order in relation to Ms Woods, Mr Brown had written the following:
“I would like to make a request for Mrs Siobhan Woods to be called as a witness for Redcaps Security Services Ltd. ...
Mrs Woods can confirm that all paperwork was submitted to her office in regard to Mr O’Neill being dismissed from [the] company in February 2014 ... .”
17. Ms Woods showed me the termination of employment form which Mr Brown completed. According to that cessation of employment form, which was provided to the JBO only on about 4 April 2014, the reason for the claimant’s dismissal was:
“Bad timekeeping, and could not give an account of his whereabouts for the entire month of March and couldn’t account for any job that he had attended plus he would not commit to any training programmes that were arranged for him.”
18. So, the position is as follows. In June, Mr Brown had told me that the claimant had been dismissed at the end of February. However, according to a document which Mr Brown had completed at the beginning of April, one of the reasons for that dismissal was that claimant had not accounted for his whereabouts during the month of March.
19. During the hearing on 21 August, this time during the course of sworn oral testimony, Mr Brown told me that he believed the claimant had been dismissed at the end of February.
20. He told me that he personally did not know for certain that the claimant was then dismissed; but that, at the end of February, he had instructed X to dismiss the claimant, and he presumes that X had speedily carried out those instructions.
21. I have no doubt that the claimant was not dismissed at the end of February, and that he had not been dismissed by 19 March. The claimant told me that he had never been dismissed by X. I believed him. I found him to be a credible witness. In assessing the credibility of his testimony, I had regard to his demeanour and manner of giving evidence. I also had regard to what I considered to be the internal consistency of his testimony.
22. Mr Brown’s credibility as a witness was destroyed, once it became clear that he had inaccurately told me that, in February, he had informed Ms Woods that the claimant had been dismissed.
23. Furthermore, I noted that during March 2014, on one occasion, both Mr Brown and the claimant worked on Company business, at a particular house. (That would appear to have been an implausibly generous act on the part of the claimant, if he had indeed been dismissed from the Company at the end of February.)
24. The claimant told me that X is a criminal and that he has stolen from the Company. If X, according to Mr Brown, is such a crook, why is it credible, as Mr Brown has urged me to believe, that X speedily and faithfully carried out the instruction which Mr Brown allegedly gave to him, allegedly at the end of February, to sack X’s long-time acquaintance, the claimant?
25. Incidentally, I arrive at no conclusion, and I cannot properly arrive at any conclusion, on the question of whether or not Mr Brown’s allegations of impropriety against X are well-founded, or are baseless. ( X was not a witness in this case, and therefore could not defend his reputation in this case; for perfectly understandable reasons, neither party has called X as a witness.)
26. For the reasons given above, I am not satisfied that the claimant was sacked by the Company at any time prior to or during the disputed period.
27. Accordingly, the Company is left with only one defence. That consists of Mr Brown’s assertion that, throughout the disputed period, the claimant was working for X’s own clients, and was not working for the Company’s clients.
28. However, the claimant told me on oath that, at all material times, he believed that the work he was carrying out was work on behalf of clients of the Company. I believe that that evidence is truthful evidence. (As already noted above, I regarded the claimant as a credible witness).
29. Because of Mr Brown’s inaccurate assertions in relation to the date of dismissal, I regard him as a witness without credibility. Therefore, I attach no weight to Mr Brown’s assertion that he had investigated the question of whether or not any sums had been paid to the Company in respect of the work carried out by the claimant during the dispute period, and had not been able to discover that any such payments had been made.
30. In any event, even on Mr Brown’s version of events, the claimant, throughout the disputed period, was carrying out work which had been allocated to him by X, who, as his line manager within the Company, was authorised by the Company to allocate work to him. In those circumstances, why would the claimant be contractually deprived of entitlement to wages, in circumstances in which Mr Brown has no evidence whatsoever that the claimant knew (if that indeed was the situation) that he was working for clients of X, as distinct from working for clients of the Company?
31. Against that background, and for those reasons, that second defence of the Company fails.
32. The amount awarded to the claimant (in this Decision) in respect of wages will be subject to tax deductions, so that the claimant will actually receive from the Company only the amount claimed by him (£1,243).
33. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge
Date and place of hearing: 26 June 2014; and
21 August 2014, Belfast
Date decision recorded in register and issued to parties: