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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bezuidenhout v Maintenance Direct Europe Ltd [2007] NIIT 2538_06 (13 March 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/2538_06.html Cite as: [2007] NIIT 2538_06, [2007] NIIT 2538_6

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THE INDUSTRIAL TRIBUNALS

CASE REF: 02538/06

CLAIMANT: Mark Bezuidenhout

RESPONDENT: Maintenance Direct Europe Ltd

DECISION

The decision of the tribunal is that the claimant's claim in respect of unpaid wages, being withdrawn before the tribunal without objection, is dismissed by the tribunal without further order, and the claimant's claim in respect of unpaid pay in lieu of notice and breach of contract is not well-founded and that claim is dismissed by the tribunal.

Constitution of Tribunal:

Chairman: Mr J V Leonard (sitting alone)

Appearances:

The claimant was represented by Ms T McKenna, Barrister-at-Law, instructed by Millar, Shearer & Black, Solicitors.

The respondent was represented by Mr M Brennan of the respondent company.

REASONS

1. By claim form dated 16 October 2006, the claimant claimed to have been employed by the respondent company on foot of contract terms as a result of which, upon being dismissed from that employment, the claimant was entitled to five months' pay in lieu of notice in accordance with contract, and also to unpaid wages in respect of one month of employment.

2. In a response dated 9 January 2007, the respondent company confirmed that the claimant had been employed by the respondent and stated that the claimant had been dismissed from employment for good cause; that the claimant had received one month's pay in lieu of notice in accordance with his contract terms; that there had been no unauthorised deduction from wages; that there had been no failure to pay notice pay in accordance with contract; and, finally, that the claimant had not raised a written grievance regarding the matter of his alleged non-receipt of the one month's salary claimed. The claimant's contentious were therefore defended by the respondent on the foregoing basis.

2. The tribunal received from the claimant's representatives a bundle of documents running to some 71 pages and from the respondent's representative a bundle of documents running to some 54 pages. In the course of the hearing there was placed before the tribunal some original documentation bearing handwritten dates, other writing, and signatures, to which the tribunal shall refer in more detail below; this was contended by the respective parties to constitute the claimant's employment contract documentation. The tribunal heard oral evidence from the claimant and, on behalf of the respondent, from Mr Michael Brennan and from Mr Frederick Sloane. Furthermore, as a particular issue emerged in the case regarding whether or not the claimant had indeed signed certain documents, the tribunal requested the claimant to place his customary signature, to hand write his name and current address in his normal handwriting, and to place his initials on a page of paper in order that that writing, executed before the tribunal, might be compared with other documentation put forward in evidence.

4. At the outset of the hearing, the claimant's representative explained to the tribunal that the claimant had recently received certain information, as a result of which he now wished to apply to withdraw that part of his claim that related to the one month's unpaid wages originally claimed by him to be outstanding. The reason for that apparently related to some earlier difficulty experienced by the claimant in reconciling bank accounts at the time the claimant had changed from one bank to another. It was stated that the claimant had not received a closing statement from the bank with whom an account had been closed, hence the difficulty in reconciliation of relevant financial information. Sufficient information had only recently been obtained as a result of which the financial position was now capable of being reconciled. Hence, such an application was now being made. Accordingly, without objection on the part of the respondent's representative, the claimant's claim for one month's unpaid wages was withdrawn before the tribunal and that claim was dismissed by the tribunal, without further order, leaving outstanding only the claimant's claim in respect of five months' pay in lieu of notice stated by the claimant to be due on foot of the relevant employment contract terms. Accordingly, the tribunal had to determine that latter claim.

THE TRIBUNAL'S FINDINGS OF FACT

5. On foot of the documentary and oral evidence adduced before it, the tribunal made the following findings of fact, on the balance of probabilities, material to the issues in the case:-

1. The respondent company is a company engaged in the sale and distribution of chemicals and lubricants, based in Northern Ireland. The claimant had a background working in industry and commerce which would have given him some degree of familiarity with the general commercial area in which the respondent did business. The claimant, who was originally from South Africa, had been resident in Northern Ireland for a fairly brief period of time when he approached the respondent in what appears to have been a rather speculative manner, seeking employment. At that time the claimant was engaged in other employment. The claimant offered his services to the respondent as a sales executive, stating that he had gained 14 years' commercial experience of a type which might be required by the respondent. That approach was made some time in January of 2006.

2. As it transpired, and somewhat fortuitously as far as the claimant was concerned, the respondent did not at that time have any employees engaged in the capacity suggested by the claimant and the suggestion sounded like a good one. Thus the respondent looked at the possibility of engaging the claimant and gave some careful consideration to the financial and other practicalities of what had been suggested. An initial meeting was then arranged with the claimant with a view to firming-up on a possible agreement. That meeting took place on some date (the tribunal is not certain precisely when) in early February 2006. Any discussions were in general terms only at that stage.

3. The respondent then invited the claimant to attend a meeting on Tuesday 21 February 2006. In the course of that, detailed discussions took place regarding possible contract terms. The claimant made a number of suggestions for amendment to the initial proposals that were put forward to him at the meeting on behalf of the respondent. Representing the respondent at that meeting were Mr Brennan and Mr Sloane. It should perhaps be mentioned at this point that the tribunal generally accepted the evidence of both these witnesses throughout the hearing as being credible. From that evidence the tribunal accepts that there were detailed discussions between the claimant and Mr Sloane and Mr Brennan concerning various aspects of proposed contract terms. However, at no stage was there any suggestion made that the claimant would be offered a contract that included a term providing for six months' notice of termination to be afforded by the respondent to the claimant. Mr Brennan indeed contended that in his 20 years' commercial experience he had never encountered such a term in this type of contract, at this level of employment. Indeed a notice period was not mentioned at all in the course of these discussions.

4. Mr Brennan, on behalf of the respondent, then sent an e-mail to the claimant on 23 February 2006 confirming that the respondent was prepared to agree to a number of amendments to the original proposed contract terms that had been requested by the claimant. The e-mail further stated that these terms were to be reviewed on completion of six months' service with a view to reverting to the original proposal. That proposal made in the e-mail was expressly stated to precede the forwarding of the full details of the respondent's final contract offer to the claimant. There was no mention made in that e-mail of the issue of notice period to be provided for in the contract terms. That e-mail was received by the claimant.

5. On 23 February 2006 Mr Brennan created in electronic form the initial draft of the proposed contract documentation on his laptop computer. The electronic draft was not modified until after certain further discussions had taken place with the claimant, including some telephone discussions which took place on 24 February 2006 between Mr Brennan and the claimant. Further modification of the electronic form of the contract documentation took place on 25 February 2006. As this was material to a rather significant issue in this case, the tribunal is satisfied from carrying out an inspection of Mr Brennan's laptop computer records where the contract documentation is stored that there appears to have been no subsequent electronic modification of the contract documentation stored on Mr Brennan's computer, post-25 February 2006. This refers to the version of the contract documentation stated on behalf of the respondent to constitute the claimant's contract after the modification which had taken place on 25 February 2006. In that regard, the tribunal inspected both a printed “screen shot” of the relevant computer records contained in the respondent's bundle of documents and also the tribunal inspected the electronic records as displayed on Mr Brennan's laptop computer in the course of the tribunal hearing.

6. On 26 February 2006, Mr Brennan on behalf of the respondent wrote a letter to the claimant attaching the revised contract documentation as generated on 25 February 2006 and, in that letter, setting out some basic information concerning the contract offer. It was stated at the foot of the letter that the offer was subject to contract conditions and was to become valid only upon the return of one copy of the contract documents.

7. On Friday 3 March 2006 Mr Brennan and Mr Sloane were present in the respondent's premises and all or most of the other staff were absent as they had been afforded a day's special leave as a type of bonus for rewarding good performance. The claimant arrived at the premises. Regarding the events that transpired on that date, the tribunal was faced with a rather significant conflict between the evidence of the claimant and that of the respondent's witnesses. The reason for the significance of that conflict relates to the contract documentation generally, and to the completion, execution and dating of this documentation specifically, on the claimant's part.

8. The proposed contract documentation consisted of four separate documents or parts. Each of these concluded with the provision of a place for the claimant to write in his residential address details and to sign and date each part of the contract documentation.

9. Looking at the specific documents of note, the document entitled, “VAN SALES – Contract No. VO1”, on the version adduced in evidence by the claimant contained the following on the final page:-

“Notice period

You shall give and be entitled to receive six months notice of termination of your employment.”

The document seen by the tribunal at the final page purports to have been signed by the claimant with the claimant's name written in and his residential address written in manuscript below that and the document bears the written date, “20 March 2006”.

(j) In contrast to that, in the document adduced in evidence on behalf of the respondent the final page states as follows:-

“Notice period

You shall give and be entitled to receive 4 weeks notice of termination of your employment”.

In this case that document purports to bear the claimant's signature with his name and his residential address written in manuscript below that and the document bears the written date “3/3/06”. The tribunal noted that in that latter document the residential address town is incorrectly spelt, “Magherefelt”, whereas the town is correctly spelt, "Magherafelt", in the document dated 20 March 2006.

(k) The significance of the distinction in the printed parts of these two documents of course relates to the quite different contractual notice period provided for by each of the two versions. In the claimant's case, that notice period is six months and in the respondent's case the notice period is four weeks.

(l) The claimant in his evidence stated that certain other signatures on the other parts of the documentation bore a resemblance to his signature. However, specifically in regard to that part of the contract relating to the respondent's travel and expenses policy, the claimant contended that his signature on that document “didn't quite look right”, as the claimant put it. Furthermore, the claimant stated to the tribunal that he had certainly not completed the document entitled “Guide to Equal Opportunities within Maintenance Direct Europe Ltd” in the way in which that document was placed in evidence before the tribunal on behalf of the respondent. That document bore what purported to be the claimant's signature and the date “3/3/06”. In the residential address section the house number as originally written in appears to have been number “12”. That number seems then to have been deleted and the (correct) number “3” written in next to that deletion. Then there seems to be an initialling of the foregoing amendment. In his evidence to the tribunal the claimant was most insistent that he had certainly not made such an error in his house number, had not then corrected that error, and had not then initialled any such amendment. The claimant therefore endeavoured to cast into doubt entirely the provenance of the completion in manuscript and the execution of that particular document.

(m) The tribunal examined these documents and compared the parts completed in manuscript with the signature, the initialling, and the printed name and address that had been provided to the tribunal by the claimant in the course of hearing.

(n) Turning then to other matters, as at the 3 March 2006 the claimant was still in the employment of another firm, an engineering company, and the claimant had to provide to that firm one week's notice of leaving. It was agreed with the respondent that the claimant would commence employment on 20 March 2006. The claimant's evidence to the tribunal was that he attended the respondent's business premises on 20 March 2006 and that he was provided with two copies of the contractual documentation. He stated that he completed and signed one of the copies fully (the four documents) and that he completed and signed the first of the other four documents, these latter being for his own retention. According to the claimant's evidence it was for that reason that only one of the four documents which the claimant put forward in his evidence as being the true contract documentation was completed and was signed by him, that being the document which bore the date 20 March 2006. It was of course that particular document which provided for the notice period of six months.

(o) In contradiction of the claimant's evidence, the respondent's evidence was that the contract documentation had been signed by the claimant and dated 3 March 2006 and that this had been provided to the respondent on that date, 3 March 2006, when the claimant had attended the business premises. There had been no mention whatsoever made of contract matters on 20 March 2006 and there had been certainly no documentation signed by the claimant on 20 March 2006. The respondent's witnesses contended that the first time they had been made aware of any contract documentation signed supposedly on 20 March 2006 and providing for six month's notice was when they had received discovery of documents a short time before the hearing of this matter.

16. As this is a significant issue in the case, the tribunal shall mention its further findings of fact in the part of this decision which records the tribunal's conclusions and the reasons for such conclusions.

16. A meeting took place between the respondent's management and the claimant on 28 July 2006 at which, in short, management informed the claimant that due to his underperformance his contract was being terminated with one month's salary in lieu of notice in accordance with his contract terms. During the course of the meeting it seems that the claimant raised no issue regarding the period covered by the pay in lieu of notice. The explanation provided by the claimant was that he was quite taken aback by this turn of events; it was the “least thing on his mind”, as he put it to the tribunal. Accordingly the contract was terminated with effect from 28 July 2006 and the one month's salary in lieu of notice was paid to the claimant.

16. Examining all of the evidence, the tribunal finds that the termination of the contract did not come as a matter of complete surprise to the claimant. He was quite aware of concerns having been expressed by management for some weeks before this regarding his performance in his post. He must certainly have been aware that his job depended on satisfactory sales performance and that management was unhappy with the results achieved by him.

THE APPLICABLE LAW

6. The claimant's claim in respect of wages deduction made under Article 45 of the Employment Rights (Northern Ireland) Order 1996 having been withdrawn, the tribunal is left with a claim for pay in lieu of notice, that constituting a breach of contract claim. In regard to the claimant's breach of contract claim, under Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring proceedings before an Industrial Tribunal for the recovery of damages or any other sum if the claim is within the jurisdiction of the Industrial Tribunals (Northern Ireland) Order 1996 and one which a Court in Northern Ireland would have jurisdiction to hear and determine, and the claim arises or is outstanding on the termination of the employee's employment.

THE TRIBUNAL'S CONCLUSIONS AND DETERMINATION

7. This is a case where the tribunal is faced with two entirely conflicting contentions regarding what constituted the contractual notice required to be provided by the respondent to the claimant in the matter. It is regrettable that the tribunal is tasked with reaching a determination between two such entirely conflicting versions of the contract. Both such purport to bear the claimant's signature in his own hand and to have otherwise been completed in manuscript by the claimant. However at the material part providing for contractual notice, both documents diverge, and both also bear dissimilar dates. This being so, the case may now be resolved by the tribunal determining the relative credibility of the witnesses and determining which version of the contract is to be deemed satisfactorily to stand up to scrutiny.

8. The claimant's case is that on 20 March 2006, on his first day of employment with the respondent, he received the contract documentation and he completed and signed in four places the four contract documents to be provided to the respondent and he handed these to the respondent's management. These documents bore the date of that day and his residential address. As far as his own copies of this documentation were concerned, he signed and dated the first of the four documents and he allowed the other three documents to remain blank and took all four of these documents into his possession.

9. The respondent's case is that the claimant arrived on 3 March 2006 at the respondent's premises with the contract documentation which had been posted out to him a short time before that. Thus, on 3 March 2006 he produced to the respondent's management the signed and completed contract documentation bearing the date 3 March 2006. The claimant has challenged the provenance of that documentation and has endeavoured to call into question whether this bears his true signature and also challenged the date and the alteration of the address number and the initialling of that alteration. The respondent has put forward the case that the document produced by the claimant to the tribunal that purports to be signed by the claimant and bears the date 20 March 2006, and records the contractual notice as being six months, must be disregarded as it has in some manner been created in aid of the claimant's case, but does not represent the true contract terms agreed.

10. It is a matter of concern to this tribunal that it has to adjudicate between these two entirely different contentions. In carrying out that task, the tribunal has given careful consideration to all of the evidence. The tribunal is required to reach its determination in this case on the balance of probabilities. On balance, the tribunal concludes that the documentation adduced in evidence and purporting to be signed by the claimant and dated 3 March 2006 is accurate and is correct. Materially for the purposes of this case, this documentation provides for a contractual notice period of four weeks to be provided by the respondent to the claimant. Having reached that conclusion, the tribunal cannot attach any weight to the documentation adduced in evidence by the claimant which purports to provide for a contractual notice period of six months.

11. The reasons for the tribunal's conclusions are as follows:-

(a) To reach any other conclusion than the conclusion reached would require the tribunal inevitably to conclude that four of the signatures and other writings placed on the printed documents inspected by the tribunal in original form were forgeries of the claimant's hand made by or on behalf of the respondent. That would require a certain degree of expertise to be applied in achieving a result which, when subjected to the albeit inexpert scrutiny of the tribunal, does appear to bear a strong similarity to the unchallenged writing of the claimant, including the claimant's own signature and other writing executed in the presence of the tribunal. The tribunal would wish to record that it reaches its view in respect of this by merely applying a commonsense approach to the matter, in the absence of any expert evidence being called in that regard.

(b) The tribunal has noted Mr Brennan's evidence regarding the creation of the electronic version of the contract documentation on 23 February 2006 on Mr Brennan's laptop computer, and the electronic modification of that on 25 February 2006 made by him just prior to the dispatching of “hard copies” of that documentation by post to the claimant on 26 February 2006. No expert evidence was called in respect of this, but once again applying what is hoped to be a commonsense approach to the matter, the tribunal notes the evidence recorded on Mr Brennan's computer that the modified contract documentation dated of 25 February 2006 was indeed not subject to any further amendment or revision at any later date, otherwise that would have been recorded as such on the computer records. From the tribunal's inspection of the electronic documents stored on Mr Brennan's laptop computer, the material contract terms provide for a notice period of four weeks, not six months.

(c) Mr Brennan conceded in evidence that access to this documentation was password-protected. Only he and certain other members of the respondent's management would have had access to the document. The tribunal notes the point made in submissions by the claimant's representative that it would have been thus quite impossible for the claimant to have had electronic access to the document in order to make any amendments. It is certainly improbable that the particular electronic contract document inspected on the laptop computer by the tribunal could by any means have been extracted from Mr Brennan's computer and thereafter amended by the claimant, had he chosen to do so. However, the claimant had certainly been provided with a “hard copy” of the contract documentation. The tribunal further notes the submission made on behalf of the respondent that, with contemporary technological systems that are readily available, the task of generating an electronic copy of the “hard copy” of the documentation and amending all or part of the draft contract would not have been a difficult one. Therefore it would not have been necessary for the claimant, had he wished to amend the contract, to have had access to the original electronic version stored on Mr Brennan's laptop computer. Mere possession of the “hard copy” would have been sufficient for such a purpose.

4. It is a fact that the claimant appears to have raised no issue on the date of his dismissal regarding what he would have seen as the “short notice” provided for in the pay offered to him by the respondent in lieu of notice. His stated reason for that is that he was so taken aback by the turn of events that this “short notice” was the least of his concerns. The tribunal does not readily accept that explanation. The claimant must have been fully aware that there were considerable difficulties at the time being perceived by his employers regarding his job performance. The tribunal accepts the evidence of the respondent's witnesses and is thus of the view that it would have come as no great surprise to the claimant that matters had reached a point where the termination of his contract was under discussion. Then to be made an offer of pay in lieu of notice which deprived the claimant effectively of five months' salary to which he would have been otherwise entitled (on the claimant's version of the contract) must have been of great significance to him. To refrain from making any observation at the time or to hold back under these circumstances from raising any dissent about this significant departure from his contractual entitlement is an improbable course to take for any person in the claimant's position.

4. Finally, in reaching its conclusions the tribunal noted carefully the demeanour of the respondent's witnesses. The tribunal found the evidence from both witnesses, Mr Brennan and Mr Sloane, to be credible and consistent in regard to the material issues. That credibility included the specific evidence with regard to the creation and amendment of the contract documentation and with regard to the presentation of these completed and signed documents to the respondent by the claimant on 3 March 2006.

12. Having reached the conclusion that the true contract terms agreed between the claimant and the respondent provided for a period of notice to be given of four weeks only, and not six months as contended on behalf of the claimant, the tribunal therefore concludes that the claimant was fully paid his pay in lieu of notice by the respondent. There was no breach of contract. The claimant's claim in respect of five months' pay in lieu of notice is not made out.

13. Accordingly, the claimant's claim for pay in lieu of notice is not well-founded and is dismissed by the tribunal.

Chairman:

Date and place of hearing: 21 February 2007, Belfast

Date decision recorded in register and issued to parties: