Jersey Employment and Discrimination Tribunal

Transcription

1 Jersey Employment and Discrimination Tribunal Employment (Jersey) Law 2003 NOTIFICATION OF THE TRIBUNAL S JUDGMENT This award, (subject to the right of appeal to the Royal Court, as set out in the Law) is legally binding and is the final decision of the Tribunal. Each party, if applicable, is responsible for establishing their liabilities with regard to Social Security and Income Tax payments. Reference: Applicant: Respondent: [2017] TRE100 Dawn Whitcombe RM Tiago Limited t/a Sam s Bakery Hearing Date: 15 August 2017 Before: Advocate Mike Preston, Deputy Chairman Representation: The Applicant: The Respondent: In person Mr Samuel Pinto JEDT Judgment 1

2 THE TRIBUNAL S JUDGMENT 1. On 26 June 2017, the Claimant filed a complaint at the Tribunal that the Respondent had unfairly dismissed her; dismissed her in breach of contract without notice; made unlawful deductions from her wages; failed to pay wages due to her; failed to pay her holiday pay that was due; and, failed to provide her with itemized pay slips. It became apparent that the claim for unpaid wages was a duplication of the claim for compensation for unfair dismissal and so this aspect of the claim was not pursued. 2. On 28 June 2017, the Tribunal sent a letter to the Respondent enclosing a copy of the Claimant s JET1 form and an Employer s Response Form (JET2). The Respondent was required to complete and return the Response Form by 18 July 2017 if it intended to defend the complaint. 3. The Respondent made no application for an extension of time to file the Response Form under Article 11 of the Employment and Discrimination Tribunal (Procedure) Order 2016 ( Procedure Order ). The Respondent did not return the Response Form as required and the Tribunal therefore deems the Claimant s complaint to be uncontested. 4. In accordance with Article 12 of the Procedure Order, a Hearing was convened before the Deputy Chairman sitting alone today. 5. Written directions dated 27 July 2017 were sent to the parties on 28 July In accordance with Article 12(3) of the Procedure Order, the Respondent was advised that it could only participate in the Hearing with the express permission of the Chairman or a Deputy Chairman. The Respondent was advised that if it wished to participate in any capacity in the hearing it must make written submissions to the Tribunal in this regard. No such written representations were made but Mr Pinto of the Respondent attended the Hearing. JEDT Judgment 2

3 6. The Deputy Chairman heard from Mr Pinto as to why no representations had been made. Mr Pinto s position was that he had lost a great deal of money due to the failure of his business venture and he expressed himself to be too tired to deal with this matter. It was apparent that the Respondent might well have ceased trading and that if any award was made against the company the Claimant might have some difficulty in achieving any meaningful recovery. 7. The Deputy Chairman determined that in all the circumstances, he would not permit Mr Pinto to participate in the Hearing on behalf of the Respondent, it being the case that the Respondent had been given notice of the Claimant s claim, notice of the Hearing and of the need for representations to be made if it were to be allowed to participate. No good reason was shown as to why the Respondent should be entitled to participate. 8. The Deputy Chairman heard evidence from the Claimant to the effect that she had been employed by the Respondent on 17 May The Respondent ran a bakery and the Claimant was an Office Administrator earning 150 per week. On 5 June 2017, the Claimant attended work as usual and was met by Mr Pinto who told her to take 2 weeks holiday and not come back. She was paid 2 weeks wages direct to her bank account, which was the usual way that she was paid. 9. It was the case that the business was due to relocate from La Collette to new premises in the Fish Market. It had been the Claimant s understanding that she would still be employed at the new premises. However, it became apparent that this was not the case. DECISION 10. The Deputy Chairman found as a matter of fact that the Claimant was dismissed on 5 June 2017 and that the dismissal was in breach of the Claimant s right not to be unfairly dismissed under Article 61 of the JEDT Judgment 3

4 Employment (Jersey) Law 2003 (the Law ). As the Claimant had been employed for more than 1 year but less that 2 years she would be entitled to an award of 8 weeks compensation. 11. The Claimant s contract of employment provided for her to receive 1 weeks notice after her first 4 weeks of employment or such period as was provided by statute. Article 56 of the Law provides that for employment of less than 2 years, an employer is required to give 1 weeks notice. As the Claimant was dismissed without any notice, the Deputy Chairman found as a matter of fact that she had been wrongfully dismissed in breach of contract and would be entitled to an award of 1 weeks pay by way of damages. 12. In addition, the contract provided that the Claimant was entitled to 4 weeks holiday in any calendar year. The Respondent paid the Claimant for 2 weeks holiday pay commencing on 5 June The Claimant accepted that she had received payment for the years holiday entitlement and, as a consequence, no award is made in respect of holiday pay. 13. The Claimant gave evidence that she had been advised that whilst deductions had been made from her salary during 2017 for Social Security, no payments had been made by the Respondent on her behalf. As a consequence, unlawful deductions amounting to 225 had been made. The Deputy Chairman found this claim to be made out and awarded 225 to the Claimant. 14. The Claimant gave evidence that she had not been given itemized pay slips in accordance with Article 51 of the Law. It was her case that when she had asked for the pay slips, Mr Pinto had just said that he would do them but that he never did. The Deputy Chairman accepted the Claimant s evidence in this respect but noted that, despite the failure to make Social Security contributions, there was no allegation that the Claimant had ever been underpaid. JEDT Judgment 4

5 15. Article 54(1A) of the Law provides that the Tribunal may order the employer to pay compensation of an amount not exceeding 4 weeks pay in such circumstances. In the exercise of his discretion, the Deputy Chairman awards the Claimant a sum equivalent to 2 weeks wages in this respect. It was apparent that Mr Pinto managed the office himself and that he did so without any support in the sense of a Human Resources function. The office administration fell to the Claimant and whilst it was for the Respondent to comply with this particular statutory requirement, there was no suggestion that the Claimant was not paid what she was due to receive. This was an administrative failure as opposed to an attempt to deceive the employee for which 2 weeks pay was adequate compensation. CONCLUSION 16. The Deputy Chairman awards the Claimant the following; 1) 8 weeks compensation for Unfair dismissal - 1,200.00; 2) 1 weeks unpaid notice ) in respect of deductions made for Social Security contributions; and, 4) 2 weeks compensation for failing to provide pay slips The total awarded to the Claimant is 1, Signed: Advocate Mike Preston, Deputy Chairman Dated: 15 August 2017 JEDT Judgment 5