Canning v Colm Joseph McGurk and Patrick... Omega Mechanical Services Limi... Colm Joseph McGurk and Patrick... Omega Mechanical Services Limi... [2012] NIIT 00181_11IT (28 February 2012)

Canning v Colm Joseph McGurk and Patrick... Omega Mechanical Services Limi... Colm Joseph McGurk and Patrick... Omega Mechanical Services Limi... [2012] NIIT 00181_11IT (28 February 2012)

The tribunal found, on the balance of probabilities, that the claimant's contract was tainted by illegality up to and including 1 October 2010 due to his knowledge and participation in a scheme to under-declare wages and defraud HMRC. This illegality rendered the contract unenforceable and barred the claimant from pursuing claims for unfair dismissal, notice pay, holiday pay, or compensation for failure to inform and consult under TUPE.

Citation
[2012] NIIT 00181_11IT
Parties
Claimant: Joseph Canning; First Respondent: Colm Joseph McGurk and Patrick Pearse Moore t/a McGurk and Moore; Second Respondent: Omega Mechanical Services Limited
Jurisdiction
Northern Ireland
Judgment Date
28 February 2012
Procedural Posture
Industrial Tribunal (employment) / Final Merits Hearing and Decision
Outcome
Claims dismissed
Legal Topics
Illegality of Contract, Unfair Dismissal, Transfer of Undertakings (tupe), Holiday Pay, Notice Pay, Obligation to Inform and Consult, Service Provision Change
Employment Law Illegality of Contract Unfair Dismissal Transfer of Undertakings (tupe) Holiday Pay Notice Pay Obligation to Inform and Consult Service Provision Change

Case Brief

Summary, issues, holding and outcome

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Parties

Joseph Canning

Claimant

Colm Joseph McGurk and Patrick Pearse Moore t/a McGurk and Moore

First Respondent

Omega Mechanical Services Limited

Second Respondent

Procedural Posture

Industrial Tribunal (employment) / Final Merits Hearing and Decision

Legal Issues

  1. 1 Was the claimant's contract of employment tainted by illegality?
  2. 2 If so, for what period?
  3. 3 Did a service provision change occur under TUPE?

Ratio Decidendi

The tribunal found, on the balance of probabilities, that the claimant's contract was tainted by illegality up to and including 1 October 2010 due to his knowledge and participation in a scheme to under-declare wages and defraud HMRC. This illegality rendered the contract unenforceable and barred the claimant from pursuing claims for unfair dismissal, notice pay, holiday pay, or compensation for failure to inform and consult under TUPE.

Court Disposition

Claims dismissed

Orders

  • All claims by the claimant are dismissed on the ground that the contract was tainted by illegality up to and including 1 October 2010.