IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Miss Liliana Correia

CLAIMANT

 

AND

 

 

Mr Ivo de Castro & Mrs Lynsey de Castro trading as DC Cleaners

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:        [2018]TRE31

 

Date:                6 June 2018

 

Before:                         Mrs H G Griffin, Chairman

 

 

THE DECISION

 

 

The Respondent shall pay to the Claimant a total award of £2,161.19

 

 

THE REASONS

 

Background

 

1.       By Claim Form admitted by the Tribunal on 15 February 2018, the Claimant issued the following complaints:

a)       Automatic unfair dismissal;

b)      Wrongful dismissal (failure to give notice to terminate);

c)       Unpaid wages;

d)      Unpaid holiday pay;

e)      Failure to provide a written statement of terms; and

f)         Failure to provide pay slips

(together “Claims”).

 

2.       On 9 March 2018, the Tribunal sent a copy of the Claim Form to the Respondent.  The Tribunal’s letter complied with the provisions of Article 7 of the Employment and Discrimination Tribunal (Procedure) Order 2016 (“Procedure Order”) and notified the Respondent of:

 

a)       how to submit a response;

b)      the time limit for submitting a response, being 29 March 2018; and

c)       the consequences of failing to submit a response within the given time limit.

 

3.       The Respondent did not file a response to the Claimant’s claims within the limitation period. 

 

4.       On 3 April 2018, the Respondent sent an email to the Tribunal stating that it did not consider the Claimant to be an employee and submitting that the Tribunal did not have jurisdiction to consider the Claims.

 

5.       On 4 April 2018, the Tribunal wrote to the Respondent rejecting the Respondent’s email on the basis that it had been submitted outside the relevant time-limit.  The Respondent was given until 18 April 2018 in which to apply for a reconsideration of that decision.

 

6.       On 13 April 2018, the Respondent applied for a reconsideration of the rejection of its response under Article 10 of the Procedure Order.  The Respondent submitted that:

 

a)       Mrs Castro was upset at receiving the Claim Form;

b)      Mrs Castro unwell due to anxiety and stress arising from receive the Claim Form; and was not eating;

c)       Mr and Mrs Castro are ‘kind and honest people’ trying to help a friend; and

d)      Mr and Mrs Castro allowed the Claimant to stay with them in their rented accommodation.

 

7.       On 19 April 2018, the Tribunal wrote to the Respondent rejecting its application that the Tribunal reconsider the decision to reject the Response Form on the basis that the original decision to reject the Response Form under Article 9(1)(c) of the Procedure Order was correct.

 

8.       Consequently these proceedings became the subject of Article 12 of the Procedure Order.

 

 

 

Conclusion

 

9.       Article 12 of the Procedure Order sets out the effect of the non-presentation or the late presentation of a response.  Article 12(b) of the Procedure Order provides that:

 

“The Chairman or a Deputy Chairman must decide whether on the available material (which may include further information which the parties are required to provide), a determination can properly be made of the claim, or part of it and if so the Chairman or Deputy Chairman must issue a judgment accordingly; otherwise, a hearing must be fixed before a single member tribunal.” [emphasis added].

 

10.   I take from Article 12(b) that if I believe there to be sufficient material available to make a proper determination in the case, I must do so.   

 

11.   With the exception of the claim of Automatic Unfair Dismissal (which I address below), the Claim Form sets out the Claimant’s claims clearly and unambiguously and I am satisfied that there is sufficient material to enable me to make a proper determination in the case.  I am therefore obliged to do so without calling a hearing.

 

Automatic Unfair Dismissal

 

12.   According to the Claim Form, the Claimant was employed for five weeks between 26 January 2018 and 3 March 2018.  During that period, she worked 43 hours per week but did not receive any pay or holiday pay.

 

13.   Article 73 of the Employment (Jersey) Law 2003  (“Employment Law”) (as amended by the Employment (Qualifying Period)(Jersey) Order 2014 (“Order”) prescribes that in order to qualify for protection from unfair dismissal an employee must be continuously employed for a minimum period of 52 weeks.  In most circumstances, this means that an employee with less than 52 weeks’ continuous employment is not protected from unfair dismissal under the provisions of the Employment Law.

 

 

 

 

14.   Article 68 of the Employment Law provides as follows:

 

68        Assertion of statutory right

(1)                 Subject to Article 71, an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee –

(a)                 brought proceedings against the employer to enforce a right of the employee’s which is a relevant statutory right; or

(b)                 alleged that the employer had infringed a right of the employee’s which is a relevant statutory right.

(2)        It is immaterial for the purposes of paragraph (1) –

(a)        whether or not the employee has the right; or

(b)                   whether or not the right has been infringed,

but, for that paragraph to apply, the claim to the right and that it has been infringed must be made in good faith.

(3)        It is sufficient for paragraph (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what was the right claimed to have been infringed.

            (4)        The following are relevant statutory rights for the purposes of this Article –

(a)     any right conferred by this Law for which the remedy for its infringement is by way of a complaint or reference to the Tribunal; and

(b)     the right conferred by Article 26.

 

15.   Article 68 therefore provides that a dismissal will automatically be deemed to be unfair in circumstances where the reason for the dismissal is that the employee sought to assert a statutory right.  The employee does not have to have 52 weeks’ continuous service in order to enjoy the protection of Article 68.

 

16.   In her Claim Form, the Claimant only stated that she was dismissed without notice and that she did not receive various statutory payments.  The Claimant did not specify:

 

a)       whether she raised the question of her statutory rights with the Respondents; and

b)      whether her dismissal was as a result of her raising the issue of the breach of her statutory rights with the Respondents.

 

17.   Article 12 of the Procedure Order provides that a Chairman may request further information from parties if appropriate.

 

18.   On 18 April 2018, the Tribunal wrote to the Claimant requesting that she provide further details in relation to her automatic unfair dismissal claim as soon as possible.  The Tribunal recommended that the Claimant seek advice from JACS, CAJ or another professional adviser.

 

19.   On 23 April 2018, the Claimant wrote to the Tribunal requesting that the Claims be struck out.  She provided no further details of her claim of automatic unfair dismissal.

 

20.   On 24 April 2018, the Tribunal wrote to the Claimant notifying her that her application to strike out could not be considered because she had failed to file a response form.

 

21.   On 1 May 2018, the Claimant’s friend contacted the Tribunal on behalf of the Claimant.  The Registrar reminded her that the Claimant was required to provide further information regarding her automatic unfair dismissal claim.  As requested, the Registrar then re-sent the email of 18 April 2018 to the Claimant’s friend.

 

22.   The Tribunal received no response to either the email of 18 April 2018 or the email of 1 May 2018.

 

23.   On 22 May 2018, the Tribunal sent an email to the Claimant attaching an Unless Order on the grounds that, contrary to the provisions of Article 24(1)(d) of the Procedure Order, the Claimant had failed to actively pursue her claim of automatic unfair dismissal.  The Unless Order stated as follows:

 

“ORDER

 

THE FOLLOWING ORDER IS AN UNLESS ORDER

Pursuant to Article 25 of the Employment and Discrimination Tribunal (Procedure) Order 2016, unless the Claimant complies with the Order by the date specified, the Claimant’s claim will be struck out without further order of the Tribunal.  The Respondent is to notify the Tribunal of any non-compliance with the Order.

 

IT IS HEREBY ORDERED that, UNLESS the Claimant provides to the Tribunal the grounds upon which she claims automatic unfair dismissal by midday on Tuesday 29 May 2018 her claim of automatic unfair dismissal shall be STRUCK OUT of the Register of Complaints maintained by the Registrar without further notice.”

 

 

24.   The Tribunal again recommended that the Claimant seek advice on the contents of the Unless Order.

 

25.   The Claimant failed to comply with the Unless Order.  Consequently, her claim of automatic unfair dismissal is struck out.

 

Wrongful dismissal – failure to give statutory notice to terminate

 

26.   The statutory minimum notice by an employer to terminate the employment of an employee who has been continuously employed for less than two years is one week.  The Claimant was employed for five weeks and was entitled to receive one week notice.

 

27.   The Claimant worked 43 hours per week at a rate of £7.18 per hour.

 

28.   I therefore award the Claimant one week’s pay as damages for breach of contract for the Respondent’s failure to give statutory notice to terminate the Claimant’s employment.

 

29.   The Respondent shall pay to the Claimant the sum of £308.74 by way of damages for wrongful dismissal.

 

Unpaid wages

 

30.   The Claimant claims for 215 hours worked at £7.18 per hour. 

 

31.   The Respondent shall pay to the Claimant the sum of £1,543.70 by way of damages for breach of contract.

 

Unpaid Holiday Pay

 

32.   The Claimant claims for one day of unpaid holiday.

 

33.   The Respondent shall pay to the Claimant the sum of £61.75 for unpaid holiday pay.

 

Failure to provide written statement of terms

 

34.   Article 3 of the Employment Law provides that an employer shall provide the employee with a written statement of terms of his or her employment.

 

35.   Article 8 of the Employment Law provides that the Tribunal may order the employer to pay compensation to the employee of an amount not exceeding 4 weeks’ pay.

 

36.   Given the Claimant’s very short period of employment, I award the Claimant one day’s pay for the Respondent’s failure to provide her with a statement of terms.

 

37.   The Respondent shall pay to the Claimant the sum of £61.75 for failing to provide a statement of terms in accordance with Article 3 of the Employment Law.

 

Failure to provide itemised pay statements

 

38.   Article 51(1) of the Employment Law provides that:

 

“An employee must be given by his or her employer, at or before the time at which any payment of wages is made to the employee, a written itemised pay statement.”

 

39.   Article 54 of the Employment Law provides that the Tribunal may order the employer to pay compensation to the employee of an amount not exceeding 4 weeks’ pay.

 

40.   Given the Claimant’s short period of employment, I award the Claimant three days pay for the Respondent’s failure to provide her with itemised pay statements.

 

41.   The Respondent shall pay to the Claimant the sum of £185.25 for failing to provide a statement of terms in accordance with Article 51 of the Employment Law.

 

Summary of Award

 

Damages for wrongful dismissal

£308.74

Damages for unpaid wages

£1,543.70

Damages for unpaid holiday pay

£61.75

Compensation for failure to provide statement of terms

£61.75

Compensation for failure to provide itemised pay statements

£185.25

TOTAL AWARD

£2,161.19

 

 

Mrs H G Griffin, Chairman                                                                       6 June 2018

 

 

…………………………………………………

 

           


Page Last Updated: 09 Oct 2018