judicial greffe


Jersey Employment and Discrimination Tribunal


Employment (Jersey) Law 2003

NOTIFICATION OF THE TRIBUNAL’S JUDGMENT

 

Reference:

[2017]TRE080                                                  

 

 

Applicant:

General Carpenters (Jersey) Services Limited

Respondent:

Mr Slawomir Gil

Hearing Date:

27 NOV 2017

Before:

Mrs Hilary Griffin, Deputy Chairman

 

 

For the Applicant:

Mr M Pal, Director

For the Respondent:

Ms Edyta Buard, Polish Cultural Centre

 

THE TRIBUNAL’S JUDGMENT

 

1.    This case originally formed a counterclaim to Mr Gil’s employment claims for unpaid wages and unpaid holiday pay.

 

2.    On 5 June 2017, at the same time as submitting its Response to Mr Gil’s claims, the Claimant filed a Form JET3 claiming damages for breach of contract.

 

3.    At a Case Management Meeting on 22 September 2017, the Claimant admitted to owing unpaid wages and unpaid holiday pay to Mr Gil.  Accordingly, I issued a judgment and also issued Case Management Orders to assist the parties in their preparation for the hearing of the Claimant’s breach of contract claim.

 

4.    This hearing was therefore convened only to consider the Claimant’s claims for breach of contract by Mr Gil. 

 

5.    The Claimant provided me with a small file of documents, running to 24 pages.  This file included:

a)    JET3;

b)    witness statement of Mr M Pal;

c)    timesheets for hours claimed for by Mr Gil;

d)    two invoices; and

e)    a statement by JD, a client of the Claimant.

I also considered Mr Gil’s JET4 Response to Counterclaim together with attachments, being photographs taken by Mr Gil of his work.

 

6.    I heard witness evidence under oath from Mr M Pal on behalf of the Claimant and from Mr Gil.

 

7.    The Claimant alleges that, in breach of contract, Mr Gil failed to perform his duties to the minimum standard required of a carpenter/improver and that consequently the Claimant suffered losses of £2,006.00.

 

The Evidence

 

8.    The Claimant employed Mr Gil as a carpenter between 31 October 2016 and 30 March 2017 when his employment terminated following Mr Gil’s resignation with notice.

 

9.    There was no dispute between the parties that at this time the Claimant was suffering from cash flow difficulties and that the Claimant asked its employees (including Mr Gil) to agree that payment of their wages be delayed and paid in instalments until the Claimant had received payment for outstanding invoices.

 

10.  Upon termination of his employment, Mr Gil was yet to receive monies owed to him. However he gave evidence that he departed on good terms with Mr and Mrs Pal and Mr Pal did not dispute this.

 

11.  The Claimant identified three projects where it submits that it suffered losses arising from the Claimant’s poor performance.  Jobs 1 and 2 were for the same client:

 

 

 

Job 1

12.  The Claimant claims £456, being the sum which the Claimant charged its client for the hours worked by Mr Gil.

 

13.  The grounds for claiming this sum from Mr Gil are that:

a)    Mr Pal had to undertake remedial work after Mr Gil had completed the job; and

b)    Mr Gil took too long on the project, although Mr Pal acknowledged that he did not give the client a specific time-scale.

 

14.  Mr Pal gave evidence that the Claimant sent an invoice to the client on 17 February 2017 but the client refused to pay the invoice because the work took too long.  The Claimant became aware of this refusal shortly after submitting the invoice and while Mr Gil remained employed.

 

15.  Mr Pal sought to negotiate with the client but, despite the work having been completed to a high standard, the client refused to pay.

 

16.  After approximately two months of seeking to negotiate with the client about payment of the invoice, Mr and Mrs Pal decided to cancel the invoice and to effectively write off the sums owed to the Claimant.  In his evidence, Mr Pal agreed that this was a ‘business decision’ taken by the Claimant’s Directors in order to retain the goodwill of the client who was a significant provider of work.  Mr Pal gave evidence that he could have brought a claim against the client in the Petty Debts Court to recover the sums owed, but he decided not to do so because he would have lost the prospect of any further work from a lucrative client.

 

Job 2

 

17.  The Claimant claims £1,300, being all of the hours worked by the Claimant on this contract.

 

18.  Mr Gil accepted in his evidence that his work on this matter required remedial action.  When Mr Pal raised the issue with Mr Gil, Mr Gil returned to site immediately and, with the help of Mr Pal, corrected the error.  Mr Gil agreed not to be paid for the four hours it took to remedy the situation.

19.  Despite the problem being quickly remedied and the client not being charged for Mr Gil’s remedial work, the client again refused to pay the Claimant for the work done. As with Job 1, the Claimant eventually decided to cancel the invoice.

 

Job 3

20.  The Claimant claims £250 for alleged ‘wasted time’ on this project.  Mr Pal gave evidence that he calculated this sum by adding up all of the hours worked by the three employees (including Mr Gil) on the project over the week, dividing the total number of hours by three and then calculating Mr Gil’s share of the hours worked.  Mr Pal did not provide any evidence to support the Claim in this regard and there was no suggestion that the client in this project refused payment.

 

21.  Both parties agreed that there were problems on this project due to lack of materials, and that Mr Pal did tell all three employees to work more quickly and if there were no materials, to carry out other jobs at the site.

 

Facts

 

22.  Based on the evidence before me, I made the following further findings of fact:

a)    The Claimant employed Mr Gil.

b)    The Claimant was suffering from acute cash-flow difficulties and was struggling to pay its employees.

c)    Mr Gil was inexperienced in the role and at the start of his employment only had a basic knowledge of carpentry.  He had no experience of joinery and ‘learned on the job’ through watching Mr Pal in the workshop.

d)    Mr Gil spent much of his time under the supervision of Mr Pal in the workshop.  He worked largely unsupervised on site.

e)    Mr Gil’s timesheets were signed off by Mr Pal before being submitted for payment.  Mr Pal continued to sign off Mr Gil’s timesheets despite allegedly receiving complaints of slow work and/or poor performance.

f)     Mr Pal spoke informally with Mr Gil about increasing his work rate after receiving a number of complaints about low productivity from clients and other workers.

g)    Mr Gil was never the subject of any formal or informal capability procedure to manage his performance. 

h)    Except regarding problem in Job 2, Mr Gil was not aware of any issues with his workmanship.  He was only aware that Mr Pal wanted him to work more quickly.

i)      Mr Pal did not tell Mr Gil that the non-payment of Jobs 1 and 2 was due to Mr Gil’s workmanship and low productivity.

j)      the Claimant did not seek recovery of any sums from Mr Gil until it received Mr Gil’s Tribunal claim for unpaid wages and unpaid holiday. 

 

Conclusion

 

23.  I carefully considered all of the evidence before me and have no hesitation in dismissing the Claimant’s claims on the following grounds:

a)    I saw no evidence to suggest to me that Mr Gil was in breach of contract in the performance of his duties.  This was not a commercial contract; it was an employment contract between an employer and an employee.  Mr Pal’s evidence unequivocally showed that he was aware of low productivity levels and below-standard workmanship from as early as January 2017, and yet he did not seek to manage Mr Gil’s performance or to supervise him more closely. 

 

b)    In order to successfully claim for damages for breach of contract in these circumstances, the Claimant would have to show that Mr Gil’s conduct was negligent.  I saw no evidence to suggest this to be the case.  At worst, this was a performance issue which required management from the employer.

 

c)    The reason that the Claimant did not receive payment for Jobs 1 and 2 was not because of Mr Gil’s poor performance but because Mr and Mrs Pal took the commercial decision not to pursue the client for the unpaid invoices in the Petty Debts Court. In his evidence, Mr Pal freely acknowledged that he could have recovered the sums in the Petty Debts Court but did not want to risk losing the client relationship.  It was a commercial decision to write off the debts and the losses suffered flow from that decision and not from any action on the part of Mr Gil.

 

d)    With regards to Job 3, the Claimant failed to provide any evidence of loss.

 

24.  The Claimant's claim for damages for breach of contract therefore fails.

 

Mrs Hilary Griffin, Chairman                                                                Date:

……………………………………………..

 


Page Last Updated: 30 Nov 2017