I did not know i had been finished and re-employed.

[pearce75]

Hi, I have received a copy of the ET response by a former employer. It says:

Mr Pearce75's administration role finished on the 31/9/2012 because:

• the company had already ceased trading and
  
• the company had been in run off for several months and was at a stage where the company only needed 2 administrators not 3
• the company was due to be closed down by December 2012 and
• Mr Pearce75's performance had been shown to be lacking and
  
• Mr Pearce75's services were no longer required and a more suitable role was found for him
  

Mr Pearce75's was re-employed on 1/10/2012 as an employed "odd job man" however there were no TUPE rights to be transferred.

I agreed to do some decorating/refurbishment for the company, I am a plasterer by trade, did the work over a couple of months, turned up for my desk job on the Monday and got told my work had finished the week before, they had'nt told me earlier because they did not want to spoil my weekend. I did not know anything about the ceased trading, being finished and re-instated, being a bad performer, the company was due to close down etc. How do i prove this though? The tribunal seems to be geared to me proving what i say or disproving everything they said. Can a company ceased trading and continue to employ people for several months afterwards? I had only been there approx 9 months in total so does the TUPE rights have any bearing, i am claiming for unpaid holiday pay, 2 weeks wages owing and 1 week in lieu of notice. There are also only 30 days in September. Later on in the response it says up until Dec 2012 the company had been trading from Suchandsuch address - can i ask the judge to accept this as evidence that the company was still trading - use his own statement against him. Another part of the statement reads ..... the company was simply in run off from this time forwards. This would have been plain from any employee to see. I assume they mean "for any employee", well it was not plain for me to see, should i have been notified/told of the situation, they are saying they were sub-contracted by a company (with the same director) to do the administrative roles and that this other company ceased trading before they took me on. It would be laughable if it was'nt so stressful.

Many thanks

[CleverClogs]

Re: I did not know i had been finished and re-employed.

Hi, I have received a copy of the ET response by a former employer. It says:

Mr Pearce75's administration role finished on the 31/9/2012 because:

• the company had already ceased trading and
  
• the company had been in run off for several months and was at a stage where the company only needed 2 administrators not 3

As you were employed to do some decorating and/or refurbishment work for them, it is difficult to understand why they should mention the reduced need for administrators.

Their damn-fool mistake about the date does rather suggest that it was (and remains) quite another person's performance that was/is lacking.

I expect our employment law Portia will be along later today, but I rather doubt that TUPE will have any bearing on this.

[pearce75]

Re: I did not know i had been finished and re-employed.

Yeah, i had better just explain quickly, I was originally working in the office, doing admin, for several months, i had done odd bits of decorating for them during that time, it was only a small company, director and his girlfriend, another one and myself. I was under the impression that i would be returning to normal duties after finishing the decorating. It was never stated, your job is finished, we have 2 months of alternative for you, then you are finished. The other girl in the office had been finished 2 weeks before me, they told me she was on holiday, it was only when i met her later that i found out. She also had no notice etc but has become disillusioned and wants to draw a line under the whole thing. I could possibly get a witness statement off her but she would not go to a tribunal, she does not want to take action herself. I understand because it is hard work, its not even for a lot of money, but the principle of being lied to and then lied about fuels me.

[Eloise01]

Re: I did not know i had been finished and re-employed.

In relation to the fact that this is only a claim for unpaid wages / notice / holidays, I can see no relevance or sense to the defence stated - it would make sense in relation to an unfair dismissal claim, but you don't meet the criteria for claiming that. The more relevant matter might be, if this was a limited company and the company no longer exists - against whom are you claiming because there cannot be a claim against a company that does not exist any longer? What exactly are you claiming was unpaid?

[pearce75]

Re: I did not know i had been finished and re-employed.

The holiday pay covers the 9 months i was there, so the "no TUPE rights transferred" has no relevance? He says the company ceased trading, but it had not. I know claims were still registered with lenders/fsa when i was finished. He did file for voluntary dissolution in January which i have managed to have suspended. No accounts have been filed. CH are aware that he has made a statement stating they were still trading within a 3 month period but are not willing to take action. Can i ask for audited accounts under disclosure? There is 2 weeks pay owing plus 1 week in lieu of notice, 3 weeks holiday pay based on 9 month period. I have also asked for a loss of earnings of 2/3s of wage for every week unemployed - approx 12 weeks.

My understanding is that i need to get the judgement of what is owed and then can pursue it agains the director directly, if it can be proved he acted improperly. Even though the company is limited.

[Eloise01]

Re: I did not know i had been finished and re-employed.

So - you had a desk job with Company A? Why did you work for as a plasterer? And why would you have agreed to move from office based work to being a plasterer (regardless of your background - that wasn't what you were employed to do)? Eaxctly why did you return to the desk job - were you told to?

I suspect that this is not going to be easy to unravel on the internet - there seem to be a number of variables which are unclear.

And no, disclosure does not include the right to demand company accounts.

[pearce75]

Re: I did not know i had been finished and re-employed.

Mmmm, see what you are saying. I did get a letter off the company when I finished blaming the loss of their claims management authorisation as the reason for being finished. In the response though, he claims i requested that letter in order to commit benefit fraud, (????), he feared i would act violently if he did'nt, this is what i was saying earlier about having to prove everything i say and disprove what he says. I didn't see the variables. I have worked in small companies before, pubs, hotels etc and doing other jobs is part of the course. The building work i did was the installation of one bathroom and refurb of another one. The first bathroom was adjacent to what was going to be the new office space in the loft and the other was rejuvenated for customer/rep/staff use. Completely valid reasons to me, an opportunity to earn some extra money before Christmas, i had done bits before and received additional payments on payslip. I still did bits and pieces in the office, i would pop in and check emails/post etc. There was absolutely no reason to suspect any of this was going to happen.

[CleverClogs]

Re: I did not know i had been finished and re-employed.

If he runs/ran a claims management company, then he is probably a congenital liar.

[pearce75]

Re: I did not know i had been finished and re-employed.

I know that now, i have never come across it before though.

[pearce75]

Re: I did not know i had been finished and re-employed.

xxxxx

[Eloise01]

Re: I did not know i had been finished and re-employed.

Mmmm, see what you are saying. I did get a letter off the company when I finished blaming the loss of their claims management authorisation as the reason for being finished. In the response though, he claims i requested that letter in order to commit benefit fraud, (????), he feared i would act violently if he did'nt, this is what i was saying earlier about having to prove everything i say and disprove what he says. I didn't see the variables. I have worked in small companies before, pubs, hotels etc and doing other jobs is part of the course. The building work i did was the installation of one bathroom and refurb of another one. The first bathroom was adjacent to what was going to be the new office space in the loft and the other was rejuvenated for customer/rep/staff use. Completely valid reasons to me, an opportunity to earn some extra money before Christmas, i had done bits before and received additional payments on payslip. I still did bits and pieces in the office, i would pop in and check emails/post etc. There was absolutely no reason to suspect any of this was going to happen.

I suspect that there is no answer to this possible - it is going to come down to what the employment tribunal believe based on whatever law here is relevant. But the fact that you went from claims management to spending two months doing manual labour does tend to support their argument that you were finished at the office work, and they just gave you some odd jobs to "set you on" until you could find other work. And that letter probably won't help either, since it does appear that there is contemporaneous evidence, no matter why it was produced, that says your job was finished - the reason it was finished isn't relevant because this is not an unfair dismissal claim. So the pay in lieu of notice may, in fact, be rather precarious. I am not sure what the claim for two weeks unpaid wages is about as you haven't explained that. The holiday pay may be better, but again if you worked nine months (or possibly seven???) are you saying that you took no holiday whatsoever - not even bank holidays?

So I think in the final analysis, the judges will have to unravel what they believe there is evidence to support.

[pearce75]

Re: I did not know i had been finished and re-employed.

What does contemporaneous evidence mean? The 2 weeks covers the last 2 weeks that i worked, i still have not been paid for that. Yes i had the bank holidays but nothing else, i based that on 20 days per year plus bank holidays, 3/4s of the year worked, 15 days. He does'nt actually say he told me, just it would be plain to see. I can see i am going to struggle.

[Eloise01]

Re: I did not know i had been finished and re-employed.

It means evidence that happened at the time that something happened. So he sent you a letter saying your job was ended, at the time it ended.