and Discrimination Tribunal
27th October, 2017.
Advocate C R Davies, Deputy Chairman
Mr S Cross, panel member
Alfredo Da Costa Rebelo
For the Claimant:
The Claimant appeared in person
(assisted by his interpreter)
For the Respondent
Mr H. Hiller (Director).
THE TRIBUNAL’S JUDGMENT
The Tribunal finds that the
Claimant is not entitled to the sum of £10,648 in unpaid wages (or any
other sum in that respect).
The claim is dismissed.
been complex proceedings which were issued for the first time in 2015. Originally the Claimant brought a number
of claims related to discrimination, dismissal and other matters. All of these claims were eventually
withdrawn and a new claim form issued for unpaid wages only. This application fell under two heads:
amounts due for work done between April 2010 and January 2013 (£6,336)
when the Claimant was working a 5 ½ day week, and amounts due for work
done between 14th January 2013 and the end of the employment (£4,312)
when the Claimant had been reduced to a 3-day week as a cost saving
measure. The Claimant was employed
as a kitchen porter in the Respondent’s restaurant.
Respondent is insolvent albeit that it has not yet been “struck
off”. There have been no
bankruptcy proceedings because the major creditors of the company have had the
benefit of personal guarantees from the directors. The company has not traded
since October 2016. The company has no funds from which to pay Mr Rebelo, but Mr Hiller defended the claim in any event and
has gone to considerable pains to comply with directions issued by the
this case was about Mr Rebelo’s contract. When the Respondent bought the
restaurant business in 2010, Mr Rebelo was already
employed as a kitchen porter. Mr Rebelo was given a
new contract with the new employer.
The intention was that Mr Rebelo’s basic
wage would be the same as it had been under the previous employer. However, the new contract stated that Mr
Rebelo would be paid a basic wage of £324 per
week. This would have put him on
the same wage as the head waiter, and a higher wage than the restaurant manager
and one of the directors of the company.
The Respondent’s case was that this was purely, and obviously, a
typographical error. Mr Rebelo was never paid £324 per week; he was paid
£298.80 per week for a 48 hour week, plus overtime if he worked it.
times became hard for the restaurant and in February 2013 Mr Rebelo was reduced to a three-day week. He was given verbal and then written
notification of the change. A new
contract was issued to him showing the correct weekly wage but it was not
returned. From then on he was paid
£149 per week with overtime if he had worked more than the contracted
August 2013 the Unite Union contacted the Respondent to query the amount being
paid to Mr Rebelo. The Respondent explained that there was
a typographical error in the 2010 contract, and explained the reduction in
hours. In June 2014 a law firm
contacted the Respondent with a similar query, and the Respondent again
explained that there had been an error in the 2010 contract. On both occasions,
the Respondent felt that the explanation had been accepted. They had spoken to Mr Rebelo and apologised for the mistake.
Mr Rebelo’s application was an attempt to obtain payment
of back wages for a six year period based on the amount stated in the April
provided us with a bundle of documents. We make reference below to the
documents that we found to be particularly relevant to the case.
evidence from the Claimant. For the
Respondent, we heard evidence from Mr Hiller, Mrs Hiller, Mr Gianpiero Mattioli and Mr Oscar Soup.
summarise below the relevant points from the evidence that we read and heard;
and set out what we find to be the relevant facts:
10. Mr Rebelo had worked
for the restaurant business for some time before it was purchased by the
11. We had sight of the contract issued in 2010,
and the notice to Mr Rebelo of the change to his
hours in 2013. We saw a selection of payslips issued to Mr Rebelo
showing that his basic weekly pay before 2009/2010 was £297.87 but that
he worked regular overtime which brought his take home salary up to £330
most weeks. From April 2010 the
payslips show that the basic pay of £298 continued, but the overtime
largely stopped. From 2013 the basic pay is shown to fall to £149.40.
12. We had sight of correspondence with the Unite
Union in 2013, and the law firm in 2014.
The Witness Evidence
13. In his JET1 Form Mr Rebelo
stated that he should be paid the amount in his contract. He did not accept the reduction in his
working hours. He had been unable
to complain because his English was not good enough to communicate with Mr
Hiller. He stated that he had
worked longer hours than he had been paid for.
14. Mr Rebelo gave two
witness statements and gave further evidence on oath. We would summarise the
following points from his written and oral evidence as being relevant to the
(a) He worked long hours, longer than Mr Hiller had
claimed. He worked from 9am until 3pm and from 6pm until late. He had worked Sundays. He had not been paid the overtime he was
(b) He felt Mr Hiller had discriminated against
him, and taken advantage of his inability to speak English. He had not queried
his pay with Mr Hiller;
(c) His wages were reduced from £330 per week
in April 2010, to £324 to £280 for no reason. It was pointed out to Mr Rebelo that his pay slips showed that his basic wage in
March 2010 had been £280, but that his wages were higher because of the
overtime that he worked for the last owner of the business;
(d) He had complained to other members of staff,
and they agreed with him but would not help him.
15. In the JET2 Form, in his witness statement and
in his oral evidence Mr Hiller gave his version of events on behalf of the
Respondent which we summarise as follows:
(a) When his company bought the business they
intended to keep all staff at the same basic wage. Mr Rebelo was
no different. From what he had
heard Mr Rebelo was also being offered considerable
overtime by the previous owner.
That overtime did not continue;
(b) There had been a mistake with the contract in
2010. It had the wrong figure in it
(the head waiter’s salary).
It had gone unnoticed for some years because Mr Rebelo
did not return the contract, but Mr Rebelo had always
been paid the right amount;
(c) Mr Rebelo worked from
10am to 2.30pm and from 6pm until closing.
The restaurant normally closed at around 10pm. No time records were kept. If the restaurant was quiet, the staff
were sent home and no deduction was made from their wages. In the busy season the restaurant was
also open on Sunday evenings. The
staff worked no more than an average of 45 hours per week.
(d) Mr Rebelo’s
hours were reduced in 2013 and he was working no more than 21 or 22 hours per
(e) Mr Hiller had dealt with queries about the
contract when they were finally raised by Unite and by a law firm in 2013 and
2014. A new, correct contract had
been issued but not returned;
Mr Rebelo had not worked long hours. When the restaurant was quiet he would
be sent home early with no reduction in pay. Mr Rebelo had
not wanted to work Sundays after the drop in his working hours;
16. We received a witness statement and heard oral
evidence from Lorraine Hiller. We
found Mrs Hiller to be a credible and honest witness. We would summarise her evidence as
(a) Mrs Hiller had worked within the business in
the early days, and had set up the staff contracts. She had no office experience;
(b) The Respondent wanted to retain staff and had
decided to keep the basic wages at the same level as had been paid by the
(c) She had used an old template to produce Mr Rebelo’s contract. She had left the wrong number in his
contract. As soon as the error was
brought to her attention by the union in 2013 she had explained the error,
apologised to Mr Rebelo and told him that it would
have been rectified had he pointed it out before. Her explanation had been accepted by the
17. We also heard evidence from Mr Soup and had a
witness statement from him. Mr Soup told us that Mr Rebelo
did not work many Sundays with him.
He understood that Mr Rebelo did not want to
work Sundays. When Mr Soup had
worked overtime, he was paid.
18. Mr Mattioli told us that he had also worked for
the previous owner of the business.
His wages had stayed the same following the sale, and he was always paid
for any overtime he worked – although he didn’t work much
overtime. Mr Rebelo
did not often work overtime and was paid when he did. Mr Rebelo did
not generally work on a Sunday. Mr Rebelo had never
complained to him about his wages.
19. All of the Respondent’s witnesses were
clear about the working hours of the staff which were fairly regular. The restaurant was generally open Monday
to Saturday from 10am to 2pm and from 6pm until around 10pm. At busier times of the year the
restaurant would also open on a Sunday evening. Mr Soup was generally the last person in
the kitchen. The hours worked out
on average at around 45 per week for full time staff. If they were sent home early, no pay was
deducted. If they worked unusual hours, they were paid overtime.
20. Clearly, there are some disputed facts. Having heard the witnesses on oath, it
seems to us that these are mostly the result of a misunderstanding on the part
of Mr Rebelo as to what his basic wage was in March
2010 before the Respondent acquired the business. The Tribunal prefers the evidence of the
Respondents’ witnesses to the extent that there was a difference in their
recollection of events. The
Tribunal has found as follows:
21. The figure of £324 in the 2010 contract
was a typographical error;
22. Mr Rebelo’s
basic wage was £298.80 a week or less when the Respondent took over his
employment. It was agreed that this
pay would be maintained by the Respondent, but they offered Mr Rebelo less overtime each week and it was as a result of
this that his net wages fell;
23. Mr Rebelo did not
approach his employer with a query or complaint about his wages for some three
years. Whilst we accept that there
was a language barrier Mr Rebelo was able to take
advice from a union and from a lawyer, and was able to instruct them to write
to Mr Hiller. Those complaints
having come to nothing, Mr Rebelo continued working
for the business until it closed;
24. In February 2013 Mr Rebelo
was put onto a three-day week and given a new contract with a basic weekly wage
of £149.40 per week. Mr Rebelo accepted this change by continuing to work for more
than three years. He worked
overtime in addition for which he was paid. Mr Rebelo
stopped working on a Sunday in 2014, but was paid for the Sundays he worked.
25. We set out above the relevant facts and our
26. We find that no sums are due to the Claimant
and we dismiss his claim.