IN THE JERSEY EMPLOYMENT AND
DISCRIMINATION TRIBUNAL
IN THE MATTER:
|
BETWEEN
|
Maria de
Sousa
|
CLAIMANT
|
|
|
AND
|
|
|
|
Danny Yau
Limited t/a Princess Garden
|
RESPONDENT
|
TRIBUNAL JUDGMENT
Reference: [2017] TRE173
Hearing Date: 13
March 2018
Before: Advocate
Mike Preston, Deputy Chairman
Appearance:
For the Claimant: in
person
For the Respondent: Mr
Danny Wan
JUDGMENT
1. By a JET1
form dated 10 October 2017, the Claimant sought statutory compensation from the
Respondent for unfair dismissal of £1,890; damages for wrongful dismissal (4
weeks’ notice) of £945; outstanding holiday pay of £607.25; outstanding pay for
public holidays of £202.50; and, a claim for compensation for failing to give
the Claimant written pay slips of £945 (4 weeks’ wages) (together the
“Claims”).
2. By a JET2
form dated 17 October 2017, the Respondent denied the Claims, asserting that
the Claimant simply went on an arranged holiday and did not return. As the
Respondent believed that the Claimant had resigned and was not coming back to
work, it employed someone else to carry out the Claimant’s role. It denied that
it owed the Claimant any sums or that it had failed to provide written pay
slips.
3. The finding
of the Tribunal is that the Claimant resigned or that the Respondent was
reasonably entitled to treat her conduct as a
resignation. As such, the Claimant was not unfairly dismissed and that her
claim is not successful; the Respondent did not wrongfully dismiss the Claimant
in breach of contract and so no notice was due; the Claimant failed to prove
that she was owed any holiday pay or pay in respect of Public Holidays; and,
the Respondent did provide written pay slips and so no compensation was payable
in this respect. As a consequence, no award is made in her favour.
The Evidence
4. By
its nature, this can only be a summary of the evidence that was given before
the Tribunal but the Deputy Chair carefully considered all of the evidence
given both orally and by way of documentation filed. He also had the benefit of
seeing and assessing the witnesses who gave evidence on oath.
5. The
Respondent operates a Chinese restaurant in St Helier. The Claimant gave evidence on her own behalf to the effect that she was
employed as a kitchen porter/cleaner in June 2016. During 2016 she worked on
Friday, Saturday and Sunday from 6.00pm for 4 to 5 hours at a rate of £7.00 per
hour. In January 2017, the hourly rate of pay increased to £7.50. In January
2017 the Respondent gave the Claimant a written contract of employment for 16
hours per week at £7.50 per hour. The Claimant then worked every evening from
6.00pm until 10.30pm and on occasion until 11.00pm.
6. The
Claimant claimed that in about the last week of July 2017, she told Mr Danny
Wan (“Mr Wan”) that she was going on holiday to Madeira on 1 August and that
she would be returning “towards the end of September”. The reason for the
extended holiday was that she was visiting her family who had travelled to
Madeira from Venezuela. In addition, she said that she would be spending time
with her brother who was suffering from a terminal illness. It was the Claimant’s
case that Mr Wan agreed to this arrangement, no doubt because of the terribly
sad reason for the extended break. The Tribunal noted that there was no mention
of the reason for the extended visit in either the JET1 form (produced it
seemed by an English qualified legal adviser with whom the Claimant had since
fallen out) or in the Claimant’s typed witness statement. This was surprising
as was the description of such a visit as a “holiday”.
7. The
Claimant went to Madeira and returned to take up her position on 19 September.
On her return she was told by Mr Wan that she had been replaced by a member of
his family and that her job was no longer available. Therefore, it was the
Claimant’s case that she was summarily dismissed without notice or any, let
alone a fair, process. As a result, she was entitled to compensation for unfair
dismissal and damages for wrongful dismissal.
8. In
addition, the Claimant argued that she had never taken any holidays whilst
employed by the Respondent and she had worked all Public Holidays that the
Respondent was open without receiving any time off in lieu or any additional
payment. As her contract provided for her to have 15 days’ holiday entitlement,
she claimed payment for 15 days in respect of such “untaken” holidays. As to
Public Holidays, she argued that she was entitled to pay in respect of the 6
days that she claimed to have worked on such holidays.
9. Finally,
the Claimant claimed that she had not been given written pay slips and so was
entitled to compensation of 4 weeks’ pay under Article 54 of the Employment
(Jersey) Law 2003.
10. For
the Respondent, Mr Wan gave evidence as did Miss Sin Joyce Li (“Miss Li”). Mr
Wan said that the Claimant did not work the hours that she claimed. She worked
between 6.00pm and 9.00pm on Sundays; between 6.00pm and 10.00pm on Fridays and
Saturdays; and, for 2 ½ hours for 2 other evenings in the week, giving a total
of 16 hours as per the contract. Mr Wan was clear that the Claimant told him
that she would be on holiday from 1 August until 1 September. There had been no
mention at all of the fact that the Claimant’s brother was terminally ill. The
Claimant did not return on 1 September or contact him at all and so he thought
that she was not coming back. Mr Wan said that he had tried telephoning the
Claimant but had not been able to get hold of her. It had been very difficult
to cope in the Claimant’s extended absence and so the Respondent had employed a
replacement.
11. Miss
Li gave evidence that she worked at the restaurant between March and October
2017. Her hours were roughly between 5.30pm and 10.30pm on 6 days of the week
and she confirmed Mr Wan’s evidence with respect to the hours worked by the
Claimant. Miss Li also gave evidence to the effect that she was present when
the Claimant told Mr Wan that she would be going on holiday from 1 August until
1 September. Miss Li said that there had been no mention of the reason for the
holiday and that she was not aware of any contact from the Claimant to the
Respondent until 19 September.
12. As
to holiday pay and payment for working on Public Holidays, it was the
Respondent’s position that whilst the Claimant was entitled to holidays, if she
chose not to take them, that did not give the Claimant a right to be paid
extra. Indeed, the contract provided that if an employee failed to take holiday
during a holiday period then they could not take them at a later stage nor
would they be paid for unused holiday. The same applied to Public Holidays and
the Respondent denied that the Claimant was entitled to any payment in this
respect, not least because it was denied that she worked on the Public Holidays
as she claimed.
13. As
to the provision of pay slips, Mr Wan filed several typed pay slips that he
said had been provided to the Claimant. Some of those pay slips had been signed
by the Claimant herself, which the Respondent claimed completely undermined her
claim in this respect and also reflected upon her evidence as a whole. The
Claimant claimed that the explanation for having signed these documents was
that she had not understood what she was signing. These documents had been
presented to her at a time when the Respondent was trying to show to the Social
Security Department that its affairs were in order when, in fact, they were not.
14.
It was the case that the Tribunal
preferred the evidence of the witnesses for the Respondent in all material
respects as it found the evidence of the Claimant to be unreliable.
The Law
15.
Article
61 of the Employment (Jersey) Law 2003 (the “Law”) states that an employee has
the right not to be unfairly dismissed. However, this is a case where the
questions posed by the Law as to the fairness or otherwise of a dismissal are
only engaged if the Tribunal finds that there was a dismissal as opposed to a
resignation.
16.
As
to a claim for wrongful dismissal, that is, a dismissal in breach of contract,
it is again first necessary to establish that the employee was dismissed. If
the employee resigned then the question would be whether they might have done
so without giving adequate notice. In this case there was no claim by the
employer for damages in that regard.
The Decision
17.
As indicated above, the Tribunal
preferred the evidence of the Respondent to that of the Claimant. The Tribunal
finds as a matter of fact that the Claimant told Mr Wan that she was going away
for the month of August and that there was no mention of the fact that the
Claimant’s brother was ill. When the Claimant did not return, without giving
any information to the Respondent, Mr Wan reasonably assumed that she had
resigned and was not returning. There was evidence that he had tried to contact
her without success. On the facts, this was a case where the Claimant resigned
and was not dismissed. As such, her claim for unfair dismissal fails. In
addition, given that the finding of fact is that this was a case of
resignation, the claim for wrongful dismissal also fails.
18.
The claims for holiday pay were
misconceived. The contract provided that if the employee failed to take holiday
then they could not take them at a later stage nor would they be paid for
unused holiday. The Claimant did not prove that she had worked on the Public
Holidays that she claimed and so, even if there was some statutory or
contractual basis for such a claim, she cannot be due any payment in that
respect.
19.
In all the circumstances, the Claims
are dismissed and as a consequence no award is made in the Claimant’s favour.
Advocate
Mike Preston, Deputy Chairman 10
September 2018
…………………………………………………