Wilson vs Robinson Ferry Construction
| Jurisdiction | Northern Ireland |
| Judgment Date | 02 December 2014 |
| Respondent | Robinson Ferry Construction |
| Docket Number | 01719/13IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1719/13
CLAIMANT: Freddie Wilson
RESPONDENT: Robinson Ferry Construction Co Ltd (in administration)
DECISION
The unanimous decision of the tribunal is that:-
(i) the claimant was unfairly dismissed and the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £31,290.00;
(ii) the tribunal makes a declaration that the respondent failed to provide to the claimant a statement of the particulars of changes to his statement of particulars of employment and makes an award of £900.00 to be paid by the respondent to the claimant; and
(iii) further, the respondent is ordered to pay to the claimant the sum of £4,640.28 made up of:-
(i) £ 403.44 (holiday pay); and
(ii) £4,236.84 (notice pay).
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Ms E Bailey
Mr J McKeown
Appearances:
The claimant was represented by Ms E Fox, Solicitor, of Barry Fox, Solicitors.
The respondent was represented by Mr R McCausland, Barrister-at-Law, instructed by McIlDowies, Solicitors.
Reasons
1.1 The claimant presented a claim to the tribunal on 25 September 2013, in which he made a claim for unfair dismissal, failure to pay notice pay and failure to pay holiday pay. During the course of the hearing, it was agreed by the representatives that the claimant had also made a claim, pursuant to Article 27 of the Employment (Northern Ireland) Order 2003, (‘the 2003 Order’) for an award to the claimant for the failure of the respondent to give a statement of particulars of changes to his statement of employment particulars. The respondent presented a response to the tribunal on 7 November 2013, in which it denied liability for the said claims made by the claimant. Since the date of the hearing of this matter, the tribunal has been informed by the claimant’s representative the respondent has gone into administration on 30 July 2014 and the title of the respondent is amended accordingly.
1.2 During the course of the hearing, the claimant confirmed that, if the tribunal found his dismissal was unfair, he wished to obtain an award of compensation and he was not seeking an order of reinstatement and/or re-engagement from the tribunal.
1.3 It was not disputed the claimant, who was born on 24 April 1965, was employed by the respondent from in or about 1993 to 25 June 2013; and, at the date of the termination of his employment, was earning £456.60 (basic) gross per week and £353.07 (basic) net per week. In addition the claimant received £30.00 (gross) for call-out and £25.00 (gross) for standby. These varied but, on average, he might expect to earn one call-out and one standby per week giving him, on average, net earnings of £400.00 net per week.
2.1 The tribunal heard oral evidence from Mr S Robinson, on behalf of the respondent; and from the claimant and Mr Alan Bradley on behalf of the claimant. Mr Gregory Healey had provided a witness statement on behalf of the respondent and Ms Maureen Owens had provided a witness statement on behalf of the claimant. Both of these said statements had been exchanged between the parties in accordance with the tribunal’s previous case-management orders. Neither witness was present to give oral evidence to the tribunal. Following submissions by both representatives, it was agreed by the tribunal, on the application of the representatives of the parties that each of the said statements would be admitted by the tribunal as hearsay evidence, on behalf of the respective parties. But the tribunal, when doing so, warned both representatives that the weight, if any, which could be given to the evidence contained therein, would be little, in circumstances where neither witness was able to be the subject of cross-examination (see further Curley v Chief Constable of the Police Service of Northern Ireland [2008] NIFET 442). As stated by the Employment Appeal Tribunal in Papajak v Intellego Group Ltd and Others [UKEAT/0124/12], in a case where a claimant had declined or refused to give evidence but her witness statement was admitted as hearsay evidence:-
“Her evidence was hearsay, in the absence of her entering the witness box, and although the Employment Tribunal clearly had jurisdiction to accept hearsay evidence it is not nonetheless not able to ignore or totally disregard well-established principles of law with reference to the admissibility of evidence and the weight to be attached to hearsay evidence. The Employment Tribunal was accordingly entitled to have regard to the fact that the claimant’s evidence was hearsay and would attract much less weight than if she had gone into the witness box to give oral evidence.”
(See Snowball v Gardiner Merchant [1987] ICR 719.)
2.2 Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with the oral and/or written submissions by the representatives of the claimant and respondent, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s said claims.
2.3 The claimant initially joined the respondent as a joiner. He worked for a number of years on private construction work for the respondent but subsequently in or about 2007 a supervisory role in relation to maintenance contracts entered into between the respondent and the Northern Ireland Housing Executive (‘NIHE').
2.4 In or about 2012 the respondent entered into a measured term contract with NIHE, which was worth approximately one million pounds per annum to the respondent and was for a period of four years with the option of a further extension for two years. The contract provided for the employment of approximately 20 operatives. In the tender document to obtain the said contract, the claimant was described by the respondent as a Front Line Manager and his role and experience were described as follows:-
“Role :
Freddie, in consultation with the on duty emergency call officer will manager the general works order and in conjunction with our customer liaison officer will be the front face of our quality maintenance service. Client communication will be on a daily basis with district office staff.
Experience :
Full train craftsman, Freddie has been part of our team for 14 years having some nine years based in Strabane on our measured team contract. Within that period he has been continuously developed his interpersonal skills dealing with customers of all ages and disabilities.”
2.5 It was not disputed a measured term contract, in essence, was a series of individual contracts upon which NIHE would raise what are known as works orders in relation to damage to their property in the Strabane area were indeed new works to be carried out. These works orders arose on a daily basis and their number and frequency by their nature was unpredictable and could vary between 6 and 20 per day. Once the orders were received they were assigned to the relevant maintenance contract operatives. The continuance of the contract with NIHE was extremely important to the respondent because at the time of the events, the subject-matter of these proceedings, it comprised 99% of the respondent’s workload, it was the core nature of the business, as the respondent had no other similar contracts and it was essential for the long term financial viability of the respondent that the contract was maintained. The respondent therefore placed considerable trust on the claimant to properly carry out his supervisory role in relation to the said contract.
2.6 The claimant’s job title, although described differently in the tender documents, was...
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