THE INDUSTRIAL TRIBUNALS

CASE REF:	2255/11

CLAIMANT:			Hugh David Albert Cameron 

RESPONDENT:		 Department for Employment and Learning

DECISION 
The appeals are dismissed.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Buggy

Appearances:
The claimant appeared in person.

The respondent Department was represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitors Office.

REASONS

1.	At the conclusion of the hearing, I announced my decision.  At the same time, I gave oral reasons for that decision.  Accordingly, what follows is by way of summary only.  The claimant worked in Glover Site Investigations Ltd (“the Company”) for many years.  The Company entered into a corporate voluntary arrangement.  The Company then purported to dismiss the claimant from a contract of employment.

2.	The claimant made applications to the respondent Department (“the Department”) in connection with that purported dismissal, in respect of holiday pay, notice pay and redundancy pay.  All of those applications were unsuccessful.  In these proceedings, the claimant, in effect, appeals against those decisions of the Department.

3.	It was clear to me, and it was agreed between the parties, that the appeals had to be successful if the claimant was, at all material times, an “employee” of the Company, and that the appeals had to be unsuccessful if he was never an “employee” of the Company.  (In the present context, the term “employee” means a person who works under a contract of service).

4.	By the time of this hearing, the claimant was asserting that his contract of employment with the Company consisted of a written document, which, according to the claimant, had been signed (by the claimant and on behalf of the Company) on or about 6 July 1997.

5.	It is now clear law a tribunal is entitled and obliged to regard a purported contract of employment as being legally ineffective if the tribunal is satisfied that the parties never intended to conduct their working relationship pursuant to it.  (See paragraphs 94 and 96 of Clark v Construction Initiatives Ltd [2008] IRLR 364, paragraph 76 of Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld [2009]  EWCA Civ 280, and paragraphs 31 and 32 of the judgment of the Supreme Court in Autoclenz Ltd v Belcher [2011] UKSC 41).

6.	Applying those principles to the facts of this case, I was satisfied as follows.  First, I was satisfied that the document dated 6 July 1997 was not signed on or about that date, and I had no credible evidence as to the date in which in fact it was signed.  Secondly, I was satisfied that the document did not, in reality reflect the relationship between the claimant and the Company.  (In that connection, I noted that, at the time the claimant presented his claim in the present proceedings, he was asserting that he had never been subject to any written contract of employment, and I noted that he was also under the impression that his sick pay entitlements were very much more generous than the sick pay entitlements which were provided for “July 1997” document). Against that background, I was satisfied that, in reality, the claimant and the Company never intended that the purported written contract would constitute any part of the framework for the relationship between the claimant and the company.

7.	The Department has made an application for costs against the claimant.  That application will be considered during the course of a hearing which will held on Friday 23 March 2012 at 2.00 pm.

Chairman:

Date and place of hearing:	13 February 2012, Belfast.	

Date decision recorded in register and issued to parties: