Employment and Discrimination Tribunal

 

Case number:

[2016]TRE141

 

 

Date:

27th October, 2017.

Before:

Advocate C R Davies, Deputy Chairman

             Mr S Cross, panel member

 

 

Claimant:

Alfredo Da Costa Rebelo

Respondent:

Lorhans Limited

 

 

For the Claimant:

The Claimant appeared in person (assisted by his interpreter)

For the Respondent

Mr H. Hiller (Director).

 

 

THE TRIBUNAL’S JUDGMENT

THE DECISION

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.

THE REASONS

1.        These have 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  All of these claims were eventually withdrawn and a new claim form issued for unpaid wages only.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.

2.        The 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 Tribunal.

3.        Ultimately 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. 

4.        Unfortunately, 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 hours.

5.        In around 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.

6.        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 2010 contract. 

7.        Each party provided us with a bundle of documents. We make reference below to the documents that we found to be particularly relevant to the case.

8.        We heard evidence from the Claimant.  For the Respondent, we heard evidence from Mr Hiller, Mrs Hiller, Mr Gianpiero Mattioli and Mr Oscar Soup.

9.        We summarise below the relevant points from the evidence that we read and heard; and set out what we find to be the relevant facts:

The Documents

10.      Mr Rebelo had worked for the restaurant business for some time before it was purchased by the Respondent.

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 case:

(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 entitled to;

(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 week;

(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;

(f)        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 follows:

(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 previous owner;

(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 union.

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.

Conclusions

25.      We set out above the relevant facts and our findings. 

26.      We find that no sums are due to the Claimant and we dismiss his claim.

Dated 8/11/17

 

 

 

 


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