Jersey Employment and Discrimination Tribunal
Employment (Jersey) Law 2003
NOTIFICATION OF THE TRIBUNAL’S
(Jersey) Services Limited
27 NOV 2017
Mrs Hilary Griffin,
For the Applicant:
Mr M Pal, Director
For the Respondent:
Ms Edyta Buard, Polish Cultural Centre
THE TRIBUNAL’S JUDGMENT
This case originally formed a counterclaim to Mr Gil’s employment claims for unpaid wages and unpaid
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.
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
This hearing was therefore convened only to consider the
Claimant’s claims for breach of contract by Mr
The Claimant provided me with a small file of documents,
running to 24 pages. This file included:
witness statement of Mr M Pal;
timesheets for hours claimed for by Mr
two invoices; and
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.
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 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
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
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:
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:
Mr Pal had to undertake remedial work after Mr Gil had completed the job; and
Mr Gil took too long on the project, although Mr Pal acknowledged that he did not give the client a
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.
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.
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
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.
22. Based on the
evidence before me, I made the following further findings of fact:
The Claimant employed Mr Gil.
The Claimant was suffering from acute cash-flow
difficulties and was struggling to pay its employees.
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.
Mr Gil spent much of his time under the supervision of Mr Pal in the workshop.
He worked largely unsupervised on site.
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
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.
Mr Gil was never the subject of any formal or informal
capability procedure to manage his performance.
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.
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.
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.
23. I carefully
considered all of the evidence before me and have no hesitation in dismissing
the Claimant’s claims on the following grounds:
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
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: