IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
J.C.F CLEANERS CO LTD
MR IVO DUARTE ABREU DE CASTRO
12 TRIBUNAL JUDGMENT
H G Griffin, Chairman
Claimant’s claim for breach of contract against Mr de Castro is rejected.
Claim Form admitted by the Tribunal on 21 March 2018, the Claimant (in this
case an employer) issued a breach of contract claim on the grounds that its
employee, Mr De Castro, failed to give contractual notice to terminate his
22 March 2018, the Tribunal sent a copy of the Claim Form to Mr De Castro. The Tribunal’s letter complied
with the provisions of Article 7 of the Employment and Discrimination Tribunal
(Procedure) Order 2016 (“Procedure Order”) and notified Mr De Castro
to submit a response;
time limit for submitting a response, being 11 April 2018; and
consequences of failing to submit a response within the given time limit.
De Castro did not file a response to the Claims within the limitation period.
13 April 2018, having spoken to the Registrar and been notified that any response
would be rejected, Mr Castro sent an email to the Tribunal explaining the delay
in submitting the Response Form. He
explained as follows:
During the time I received the documents, I was not thinking straight as
I was not sleeping, eating or drinking due to stress and depression. I was sighed [sic] off work and I
didn’t realise the dates. I
would like to ask if the case would be reconsidered.”
16 April 2018, Mr Castro submitted a completed Response Form.
19 April 2018, the Tribunal wrote to Mr De Castro rejecting his application for
a reconsideration of 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.
these proceedings became the subject of Article 12 of the Procedure Order.
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
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.
sought additional information from the parties, 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.
De Castro’s contract of employment (“Contract”) provided that
he was required to give two months’ notice to terminate his employment
after five years’ service. I
was somewhat surprised to see that the notice provisions were markedly more
onerous for Mr De Castro than for the Claimant. Indeed some of the notice provisions for
the employer did not comply with the statutory minimum notice periods as
provided under Article 56 EJL 2003;
parties confirmed that wages were paid to Mr De Castro fortnightly in arrears
and that the last salary payment was made on Friday 12 January 2018. Mr De Castro failed to attend work on
Monday 15 January 2018.
13. In Polar Auto Refurbishment Centre
Limited v Mr Dumitru Lulian llie JEDT103/16, the Tribunal set out the
circumstances in which an employer is able to successfully claim damages for an
employee’s failure to work their notice.
14. In Polar Auto, the Tribunal
quoted with approval from the Employment Appeal Tribunal case of Li v
First Marine Solutions Ltd UKEAT/0045/13, in which Langstaff P
commented that if an employee does not work out a portion of the notice
required, the wages for that period will be deducted from what would
otherwise be payable for that notice period. In the First
Marine Solutions case, the parties did not argue this
point. However Langstaff P stated obiter that had they
done so, the £5,000 for time unworked by that employee would only have
been deducted from the £5,000 which the employee would normally
have earned had she worked the notice period.
15. When one applies these comments to this
case, the result is that the Claimant was entitled to deduct £2,860 (ie.
Mr De Castro’s eight week notice pay) from the amount which Mr De Castro
would have earned had he worked his notice period (ie. £2,860).
This reflects the normal employment expectation of “no work, no
16. As the Claimant paid wages in arrears,
Mr De Castro only received payment for hours worked up to and including 12
January 2018. He did not receive
any payment in advance for the period from 15 January 2018. As the Claimant made no payments to Mr
De Castro for the period after 12 January 2018, the Claimant suffered no losses
in this regard.
claim for damages for breach of contract therefore fails.
Mrs H G Griffin, Chairman
7 June 2018