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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mulholland v Finucane & Toner Solicitors [2013] NIIT 00103_13IT (28 March 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/103_13IT.html Cite as: [2013] NIIT 103_13IT, [2013] NIIT 00103_13IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 103/13
CLAIMANT: Ciaran Mulholland
RESPONDENT: Finucane & Toner Solicitors
WRITTEN REASONS FOR DECISION
Constitution of Tribunal:
Vice President (sitting alone): Mr N Kelly
Appearances:
The claimant was represented by Mr D McKeown, Barrister-at-Law, instructed by Joe Mulholland & Company, Solicitors.
The respondent was represented by Mr I Skelt, Barrister-at-Law, instructed by the respondent company.
1. The claims lodged in relation to notice pay, arrears of pay, holiday pay and breach of contract were dismissed for want of jurisdiction in an oral decision, given with a brief summary of reasons. This document represents the written reasons for that decision.
2. The claimant was initially employed as a trainee solicitor by a solicitor with no involvement in this claim for a two year fixed-term from 22 July 2010, The training contract was on the standard Law Society form. The contract was later assigned to the respondent company with effect from 9 January 2012, again using the standard Law Society form. That assignment of contract stated:-
“The assignor hereby assigns the within-written Contract of Apprenticeship and all his interests therein and the benefit of all covenants therein contained to the New Master for all the residue now expired of the said term of two years … .”
3. The claimant gave evidence to the tribunal and alleged that, at the start of January 2012, he had been given a separate employment contract by the respondent company. He alleged that this separate employment contract would have commenced from the completion of the training contract which, as indicated above, was contained in a standard Law Society format. The claimant’s evidence was that this collateral contract had been oral and that it had contained no provision for matters such as wages, holidays, etc. The respondent company denied that such a contract was entered into orally at any stage, but particularly in January 2012.
4. I conclude that it was inherently unlikely that such a contract was entered into at that date, as alleged by the claimant, because:-
(i) The alleged collateral employment contract, despite its obvious importance to the parties and despite the fact that it was alleged to be binding as a matter of contract on both parties, had not been reduced at that stage or at any later stage to writing.
(ii) The alleged contract was, even on the claimant’s evidence, utterly unspecific and incapable of legal performance. No mention was made, on the claimant’s own evidence, of pay, holiday pay, holiday entitlement, career progression, responsibilities, pension provision, etc. The parties to any such alleged contract would have struggled to find something with which they could or should comply. I do not find it at all arguable that a solicitor and a trainee solicitor agreed in January 2012 to bind themselves to an employment contract, which would only have taken effect on a date some eight months into the future and without agreeing basic issues such as pay.
(iii) The claimant was, in January 2012, facing criminal legal charges which were initially framed in terms of perverting the course of justice and were subsequently downgraded to obstruction. In such circumstances, I would regard it as highly improbable that, before the relevant criminal issues were resolved, anyone in their right mind would then have entered into a contract of employment with the claimant in the manner alleged by him.
5. I therefore concluded that no oral, collateral, contract of employment was reached in January 2012 as alleged by the claimant.
6. There was a dispute before the tribunal about whether the claimant had been absent from work on the ground of illness at the start of August 2012 or at the end of August 2012. The respondent company asserted the former. The claimant asserted the latter. It does not appear to matter. The claimant was advised in plain terms by the respondent company in an e-mail dated 8 September 2012 that:-
“Please also note that your Trainee Solicitor Contract finished on 1 September 2012 and we therefore have no need for any medical documentation.”
The claimant asserted that he felt confused by this e-mail. I do not accept that evidence. If an employer states in plain terms that a contract has ended and that no further medical documentation is required to support an absence, it is perfectly plain that the employment relationship is at an end. I therefore conclude that the claimant knew at the latest by 8 September 2012 that his employment had ended on 1 September 2012 and that that was the position taken by the respondent company.
7. Having listened to the claimant’s evidence and to the submissions made by both parties, my conclusion is that the claimant knew in advance of 8 September 2012 that his training contract would have ended in the natural course of events at the end of July 2012 in accordance with the plain terms of the assigned contract and that there was nothing in place either orally or in writing to replace that training contract in terms of an employment contract. The fact that, for the month of August 2012, there was a brief overrun, complicated by some absence on the ground of ill-health, is not enough, in itself, to establish the existence of a second contract of employment which would have followed on from the training contract. I have already concluded, that the claimant was wrong to assert that an existing collateral contract had been in existence from January 2012 waiting to take effect at the completion of the training contract. I further conclude that it is not possible for the claimant to argue that the first contract had been extended by some form of inaction or implicit agreement on the part of the respondent company. The first contract had been a training contract for specific purposes and was incapable of extension for an entirely different purpose. A further contract as a trained solicitor or in some other capacity would have required, if not a written contract, some level of clear agreement about basic issues such as pay and an intention to be bound. This clear level of agreement was notably absent.
8. My decision is therefore that employment ceased by 1 September 2012, or, if a fair degree of charitable inference were to be employed, and it is not, by 8 September 2012. The claims before the tribunal were not lodged until 20 December 2012. On either date of termination, the claims were therefore not lodged within the relevant three month time-limits set out in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, the Employment Rights (Northern Ireland) Order 1996 and the Working Time Regulations (Northern Ireland) 1998.
9. It was clearly practicable for the claimant to have met the relevant three month time-limits for the lodgement of his claims. The claimant had been able to write to the respondent company in detail setting out his version of events and he was also clearly able to attend a detailed meeting with partners on 30 September 2012. He was also able to take up employment in the legal field with his current employer. Vague and unsupported allegations about ill-health cut no ice with this tribunal. The time-limits are clear and are laid down in legislation. They are meant to be met by any would-be claimant. A trainee solicitor, who at the relevant time period had completed his training, is unlikely to be able to establish that it had not been reasonably practicable or reasonably feasible for him to have met the relevant time-limits. He is equally unlikely to be able to make out any case for an extension of the time-limit.
10. The claims are clearly outside the relevant statutory time-limits and no reasonable explanation has been furnished for the claimant’s failure to meet those time-limits and equally no case has been made out to this tribunal for an extension of those time-limits.
11. My decision is therefore that the claims are dismissed for want of jurisdiction as being outside the relevant time-limits in circumstances where those time-limits could not properly be extended by this tribunal.
Vice President:
Date and place of hearing: 26 March 2013, Belfast
Date decision recorded in register and issued to parties:
