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

 

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Page Last Updated: 08 Oct 2018