Adams v TH Clarke & Co [2004] NIIT 4431_03 (29 April 2004)


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Industrial Tribunals Northern Ireland Decisions
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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 4431/03

    APPLICANT: John Adams

    RESPONDENT: T H Clarke & Co

    DECISION

    The unanimous decision of the tribunal is that the applicant was not dismissed by the respondent. The applicant's complaint is therefore dismissed, without further order.

    Appearances:

    The applicant was represented by Mr P Henry, Barrister-at-Law, instructed by J G O'Hare & Co, Solicitors.

    The respondent was represented by Mr G Daly, Solicitor, of Francis Hanna & Co, Solicitors.

    This is a decision in summary form.

    THE ISSUE

  1. The applicant's complaint was of "redundancy payment". In his Originating Application, the applicant further contended that he was entitled to twenty-four weeks redundancy, which he had received in full and also he was entitled to twelve weeks notice pay, which he did not receive. Accordingly the tribunal had to decide the applicant's complaint.

  2. At the outset of the hearing, an application was made on behalf of the applicant to add to the complaint contained in the applicant's Originating Application the following: "Further or in the alternative the applicant was unfairly dismissed". The respondent's representative opposed that application. The tribunal heard in submissions on behalf of the applicant to the effect that the applicant had filled in his Originating Application himself. As originally framed the claim appeared to be for redundancy pay and for pay in lieu of notice. The tribunal was referred to a Notice for Particulars from the respondent's solicitors to the applicant's solicitors dated 9 February 2004 and to the Reply thereto of 24 February 2004 on the part of the applicant's solicitors. That Reply, in was submitted, referred to the fact that the applicant was looking for a figure of £15,000.00 for redundancy. On behalf of the applicant it was submitted that implicit in the applicant's application was an unfair dismissal complaint.

  3. In opposition to this application to amend, the respondent's solicitors contended that, whilst there was an issue as to whether or not the applicant was indeed represented by solicitors at the time of his Originating Application being prepared, most definitely by 24 February 2004 he was professionally represented. There had been neither correspondence received nor anything else indicating an earlier intention to make an application to amend the grounds of complaint. This was a case were it was not an applicant putting a new label on facts already pleaded but quite a distinct and different head of claim. It ought not to be permitted on that account at such a late stage, argued the respondent's representative.

  4. The tribunal considered the application to amend and the respective submissions. The tribunal noted that the applicant's Originating Application complained of "redundancy payment" at paragraph eleven thereof and in paragraph thirteen the only claim appearing seemed to be for twelve weeks unpaid pay in lieu of notice. The applicant sought to rely on one document only and that was the Reply to Particulars dated 24 February 2004 and specifically to paragraphs one and three of that Reply, where there was specific mention made of a claim for £15,000.00 for a redundancy payment. The tribunal noted that there had been no earlier application to amend the complaint to include an unfair dismissal or breach of contract complaint prior to the date of hearing. This was the first indication of such an application wishing to be made. The tribunal noted that the events alleged occurred in May 2003; the applicant's application was dated 11 August 2003 and was lodged with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 15 August 2003; the notice of hearing was dispatched to the parties on 13 January 2004. In regard to such applications the tribunal notes the case of Selkent Bus Company Limited –v- Moore [1996] IRLR 661. In such matters a tribunal in exercising its discretion ought to take into account all of the circumstances including the balance of injustice and hardship in granting or in refusing an application to amend. In this case the tribunal took the view that this was an entirely new head of claim put forward for the first time at the date of hearing. The application was not correcting an error or putting a new label on facts already pleaded. With regard to the timing and the manner of the application and, furthermore, with regard to the nature of the application, the tribunal took the view that the application ought properly to be refused. The tribunal announced its determination and the case then proceeded on foot of the original complaint.

    5. THE TRIBUNAL'S FINDINGS

  5. The applicant was employed as a car salesman by the respondent, beginning in that employment in November of 1983. The employment was continuous from that date and it ended in May 2003. At that stage the applicant had been in employment for nearly twenty years. The respondent Company was part of the Dornan Motor Group under the ownership of Mr Fergus Dornan. The business had been acquired by Mr Dornan's Group a few years before the events which concern this tribunal. The General Manager of the respondent was Mr Alan Doherty. The business was a Hyundai car sales dealership.

  6. At dealership level the major motor distributors and dealerships were, at the material time, endeavouring to comply with European block exemption regulations concerning franchise-holding. Standards of operation were being scrutinised and there was particular attention being paid to staff training and to the maintenance of specific documentation and record-keeping concerning car sales activities.

  7. Apparently the applicant had around this time expressed the view that he was not content with the new and additional work and the extra administrative responsibilities which were required to be attended to by all persons carrying out sales functions such as that then performed by him. The applicant approached Mr Doherty and requested that he be made redundant.

  8. Mr Doherty stated to the applicant that there was no redundancy situation. The business employed two car salesmen, one of these being the applicant, and required two salesmen.

  9. The tribunal heard conflicting evidence of facts that preceded a meeting of 19 May 2003. What is clear to the tribunal is that on 19 May 2003 a meeting took place between the applicant and Mr Dornan and also attended by Mr Doherty. Mr Dornan was conscious of the applicant's long-serving status with the respondent Company and of the fact that the applicant wished to go into business in his own right as a self-employed person in the motor trade. Mr Adams had removed some Company books and documentation and he agreed to return these on that day. It was agreed between Mr Dornan and Mr Doherty that the sum of £6,000.00 would be paid to Mr Adams and that the latter's employment with the Company would terminate forthwith.

  10. A written document dated 19 May 2003 giving evidence to the foregoing agreement was drawn up and was signed on that date by Mr Dornan as employer and by the applicant as employee. The sum of £6,000.00 was duly paid by the respondent to the applicant in pursuance of that agreement. The employment then forthwith came to an end.

    11. THE TRIBUNAL'S DECISION

  11. Looking at the facts of the matter, the tribunal sees no compelling evidence that there was a redundancy situation. It was clear that it was the applicant who made the initial approach requesting a redundancy package. It was he who wanted to leave and to be "made redundant". The tribunal accepts that the respondent required two car salesmen and the applicant was one of these. Notwithstanding the conflict of evidence as to the various reason or reasons which may have promoted the events which occurred on 19 May 2003, the fact is that an agreement was drawn up and was signed both by Mr Dornan and by Mr Adams and the tribunal does not see clear evidence of duress or any other factor which would cause it not to regard that being a valid and proper agreement. This agreement was consensual.

  12. That being the case, the employment was terminated on a consensual basis. The respondent did not dismiss the applicant. There was nothing in the nature of a breach of contract which might give rise to the argument that the applicant was constructively dismissed, not that this argument was advanced. The applicant's claim was for redundancy and also for pay in lieu of notice. In such a situation as this pay in lieu of notice would not be applicable.

  13. The unanimous decision therefore of the tribunal is that the applicant's complaint cannot succeed and the complaint is therefore dismissed.

  14. When the tribunal announced its decision to the parties the respondent's representative made an application for costs. The representative referred the tribunal to a letter dated 22 January 2004 whereby the respondent's solicitors wrote to the applicant requesting that he withdraw his application within ten days and putting the applicant on notice that it would the respondent's intention to seek an order for costs on the ground that the claim was in all the circumstances frivolous and vexatious. The respondent's representative mentioned a figure for costs that had been incurred in connection with the case. It was submitted that the case was frivolous and vexatious and that costs ought to be awarded.

  15. Counsel for the applicant submitted that the applicant genuinely considered this to be a redundancy case and hence made his application to the tribunal on the basis of there being a genuine redundancy situation where the applicant's rights had been infringed.

  16. The tribunal considered all of the facts of the matter and the respective submissions of the parties. Taking everything into consideration, the tribunal does not determine that this is an appropriate case in which to make an award of costs and accordingly the respondent's application for costs is dismissed and no further order is made.

    17. Chairman:

    Date and place of hearing: 29 April 2004, Belfast.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/4431_03.html