THE INDUSTRIAL TRIBUNALS
CASE REF: 205/05
CLAIMANT: Jeffrey Hurst
RESPONDENT: Trevor Buckley t/a T Buckley Services
DECISION
The unanimous decision of the tribunal is that the claim is dismissed.
Appearances:
The claimant represented himself.
The respondent was represented by Mr Patrick Moore of Peninsula Business Services Limited.
- The tribunal heard evidence from the claimant on his own behalf and Mr Trevor Buckley on behalf of the respondent. The tribunal also received two bundles of agreed documents.
- The claimant was employed as a multi-skilled tradesman with Buckley Services from 29 July 2001. He was one of a number of employees engaged in what are known as "shower teams", whose job is to remove baths and wash hand basins from Northern Ireland Housing Executive property, tile walls and install and plumb shower trays. The claimant's gross annual earnings were £16,325.00.
- It is common case that there was a meeting at the respondent's premises on 10 January 2005 and that as a result of that meeting the claimant ceased to work for the respondent. In answer to questions from the tribunal, the claimant accepted that no wages were outstanding and that he had received all the holiday pay to which he was entitled. The issue to be determined by the tribunal was whether the claimant was dismissed by reason of redundancy as he contended or was laid off as contended by the respondent.
- It was the claimant's case that on 10 January 2005 the foreman, Mr Ernie Lynas, came into the yard and asked for Stephen Gillanders, Richard McCausland, Damien Devlin and the claimant. Mr Lynas started to explain about the temporary lay offs and said that they were kicking in with immediate effect. At that stage the claimant and his fellow workers asked to see Mr Trevor Buckley. Mr Buckley came up to the office and explained the situation. He told them that a new contract had been signed but was not due to start until the beginning of February. He did not say who the contract was with. The claimant asked if Mr Buckley could guarantee that they would return to work on 1 February 2005 and he responded in the negative. The claimant suggested that it might be an option to pay them off. The claimant said that he told Mr Buckley that he had three and a half years service and knew what he was entitled to. In his evidence to the tribunal the claimant said that Mr Buckley replied, "Yes, I'll pay you all off then". None of the claimant's fellow workers were called to give evidence. A letter was produced from Mr Lynas dated 1 June 2005 which confirmed that in accordance with Mr Buckley's instructions he informed the claimant that he was being laid off but supported the claimant's contention that Mr Buckley when pressed had said that he would pay him off. Mr Lynas was not called to give oral evidence as to this exchange. The claimant was aware of the possibility of obtaining witness orders in relation to Mr Lynas and his co-workers but failed to avail of this process.
- It was suggested to the claimant that at the meeting on 10 January 2005 he had made his points in a somewhat stronger manner than his evidence to the tribunal would suggest. Mr Buckley's evidence was that he clearly told the workforce that it was a temporary lay off situation. He told the tribunal that he explained the position about a new contract at the start of February. He claimed that the claimant at that point interjected:-
"That's no fucking good to me. Don't lay me off. Just pay me off".
Before Mr Buckley could respond Mr Gillanders interjected:-
"You're just a bastard".
They all then stormed out except for Mr McCausland who said that he was happy to accept temporary lay off.
In his evidence the claimant maintained that he did not swear, that he was happy being paid off and that he kept his cool. The claimant said that he couldn't vouch for what Mr Gillanders is alleged to have said. The claimant claimed that he came to an understanding with Mr Buckley and denied that he stormed out of the meeting. He denied offering his resignation as he stormed out.
- Later that day, the claimant sought advice from the Citizen's Advice Bureau. As a result of that advice he phoned the company accountant and asked him when his money would be forwarded.
The company accountant said, "You took temporary lay off" and the claimant replied, "No - Trevor said he would pay us off".
- The following morning the claimant received a letter from Mr Buckley dated 10 January 2005 in the following terms:
"Dear Jeffrey
Further to our meeting this morning, where you were offered a temporary lay [off] in the current situation, you decided to verbally resign from your job with immediate effect.
I would appreciate it if you would forward your resignation in writing as soon as possible and any monies due to you will be forwarded in due course.
I wish to take this opportunity to thank you for your service and wish you all the best in the future.
Yours sincerely,
Trevor Buckley".
- On receiving the letter of 10 January 2005, the claimant noted the reference to his having verbally resigned and went to see his solicitor who advised him to submit an originating application straight away. The claimant followed this advice and filed an originating application on 12 January 2005 in which he claimed redundancy payment, outstanding wages, outstanding holiday pay, pay in lieu of notice and unfair dismissal. The respondent subsequently submitted a notice of appearance which maintained that the claimant had been laid off, denied that he had been dismissed or resigned in circumstances that gave rise to an entitlement to a redundancy payment and claimed that he had been paid all monies that were due to him.
- On 12 January 2005, the claimant also wrote to Mr Buckley in the following terms:-
"I refer to your letter of 10 January 2005 and would confirm that you are well aware that I never resigned from my job.
You told me along with three other employees on Monday 10 January 2005 that as we were not happy with the temporary lay off that we would be paid off.
We all believed that this meant you were going to give us full redundancy payments and as you are aware I am entitled to six weeks and three days payment. This is made up of three weeks notice, three weeks redundancy payment and three days holidays.
I confirm although I was not happy being laid off as you would not let us have a time scale for same, I never refused a short term lay off".
- On 14 January 2005, Mr Buckley replied to the claimant's letter of 12 January 2005 in the following terms:-
"Further to your letter dated January 12, 2005, I wish to draw your attention to inaccuracies in the same.
1. You were offered a temporary lay off and you said that it was no good to you. Your statement was "give me what I'm owed and pay me off, I will get another job. I'm not staying around for two weeks".
2. The time scale I gave was beginning of February when the adaption contract started. Therefore, the temporary lay off period was defined. The decision to leave the company was yours and yours alone".
In his evidence to the tribunal Mr Buckley stated that he did not consider it appropriate to use swear words in formal correspondence hence the quotations in the letter of 14 January were to this extent inaccurate.
- On 17 January 2005, Mr Buckley wrote a further letter to the claimant as follows:-
"I acknowledge receipt of your letter dated 12 January and note that you state your have not resigned from my employ.
I am therefore writing to confirm that you have been placed on temporary lay off with effect from Monday 10 January 2005.
You will therefore receive the statutory payment of £17.80 per day for the first five days you are laid off. The dates of these payments were from January 10-January 15 inclusive.
May I assure you that the company is doing everything possible to increase the workload and will notify you as soon as you are required to recommence work.
As you are entitled to benefits, this letter should be taken to the Works and Pensions Department as proof of you being on temporary lay off".
While the claimant had some issues with the previous letters his evidence was that he did not disagree with anything in the letter of 17 January 2005 and he accepted the statutory guarantee payment referred to in paragraph 3 of the letter.
- On 1 February 2005, Mr Buckley wrote to the claimant and invited him to return to work as the business had now enough work on stream to make his position available again starting on Monday 7 February 2005. Mr Buckley asked for his written confirmation that he would be recommencing work on that date. Mr Buckley did not receive a reply to this letter. Mr Buckley wrote again to the claimant on 8 February 2005 asking him to make contact as soon as possible.
- In his evidence to the tribunal the claimant said that he wanted time to think about the letter of 1 February and said that he was annoyed that he had been unable to have contact with Mr Buckley on the telephone. He said that he found it difficult to go back to work for someone whom he had lost all respect for. The claimant alleged that on 7 February 2005 the rest of the work force was paid off this being the date on which work was due to resume according to Mr Buckley. In his evidence, the claimant asserted that he was contacted by friends (Jonathan Reid and Ian Hutton) on 7 February 2005, who told him they were on their way home having been paid off.
- The claimant took up employment with a company called HEAT on 7 February 2005. He told the tribunal that he had not been seeking work during the intervening period but that he was contacted by a Mr Ian Hunter who was a foreman in HEAT. The new position offered him an annual salary of £13,500.00 gross. After a couple of days he accepted this offer. Since then his salary has risen to approximately £15,000.00 per annum together with additional bonuses and exceeds the £16,325.00 salary he received from Buckley Services.
- At the hearing, a letter was produced by Mr Buckley dated 14 February 2005 which is as follows:-
"To Whom It May Concern
As of today, February 14th 2005 T Buckley Services has closed the disabled adaption and part of the electrical business. As a result employees have been laid off. This letter is to confirm the situation which has been brought about by poor cash flow and lack of profitability of work. The holder of this letter is one of the employees that has been laid off.
Yours Sincerely
Trevor Buckley "
Mr Buckley claimed that the references to employees being "laid off" were an error on his part and the employees had in fact been made redundant. This would appear to be consistent with the reference to part of the business being closed. He also pointed out that due to cash flow problems he was unable to fulfil the new contracts. Having been shown this letter the claimant accepted that he was wrong about the date and he accepted that the business did not close until 14 February 2005.
- The claimant's contract of employment incorporated the company handbook which contained a section entitled 'Shortage of Work' which provided as follows:
"If there is a shortage of work for any reason, the utmost endeavour will be made to maintain your continuity of employment even if this necessitates placing you on short term or having to lay you off work without pay other than statutory guarantee pay".
- The net factual issue for the tribunal to determine was whether the claimant was laid off temporarily or dismissed by reason of redundancy. There was no dispute that Mr Buckley called the meeting in order to advise the work force of temporary lay offs and there was clear provision in the company handbook for lay offs to take place in the event of a shortage of work. The situation that prevailed on 10 January was clearly unhappy and no doubt harsh words were spoken. The claimant and his fellow workers expressed their displeasure in no uncertain terms and demanded to be paid off. The tribunal is satisfied on the balance of probabilities that Mr Buckley in the heat of the moment and under considerable pressure from his work force did tell the claimant that he would pay him off. No doubt realising his folly Mr Buckley took immediate steps to correct himself and wrote to the claimant later that same day. In this letter Mr Buckley asserted that the claimant had resigned in response to the offer of a temporary lay off. As appears from the correspondence, the claimant denied that he had resigned, maintained that Mr Buckley had said that he would pay him off and significantly stated that he had never refused a short term lay off. In the correspondence that ensued Mr Buckley accepted that the claimant had not resigned, maintained that he had been temporarily laid off and advised him that he would receive the statutory guarantee payment for the first five days of lay off, which he did. The claimant did not respond to any of this correspondence. He alleged that he made a number of phone calls to Mr Buckley which were not returned but given that Mr Buckley was at this time in regular written contact with the claimant, the tribunal considers that this is highly unlikely. All the evidence in relation to the respondent's difficulties in January 2005 points clearly and consistently towards staff being laid off rather than a redundancy situation. In view of the clearly demonstrated intention of the respondent to lay off staff in accordance with the procedure set out in the company handbook, the prompt action taken by the respondent to inform the claimant in writing that what was on offer was a temporary lay off and the claimant's assertion that he had never refused a short term lay off, the tribunal is satisfied that the claimant was laid off rather than dismissed on the basis of redundancy.
- However, the tribunal was not impressed by the manner in which Mr Buckley handled the situation and considers that the dispute with the claimant could have been avoided by better industrial relations both in terms of prior consultation and need for clarity and consistency in the provision of information to employees. In addition, the tribunal notes that when the firm encountered further difficulties in February 2005 and was forced to make staff redundant due to the closure of parts of the business, the letter issued to employees on 14 February incorrectly referred to employees being laid off rather than being made redundant.
- In all the circumstances the tribunal is satisfied that the claimant was laid off due to a temporary shortage of work. All of the claimant's complaints are therefore dismissed.
Chairman:
Date and place of hearing: 10 June 2005, Belfast.
Date decision recorded in register and issued to parties:
