IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
Jose Rodrigues Camacho
DH Construction Limited
Hearing Date: Thursday, 4th October 2018
Deputy Chair M. Salter
For the Claimant: in person, assisted by Mr. M. Lopes, interpreter
For the Respondent: Advocate M. Palmer
References in square brackets below are unless the context suggests otherwise to the page of the bundle. Those followed by a with a § refer to a paragraph on that page and references that follow a case reference, or a witness’ initials, refer to the paragraph number of that authority or witness statement.
References in round brackets are to the paragraph of these reasons or to provide definitions.
These are my reasons for the above judgment provided in accordance with Article 38 of the Employment and Discrimination Tribunal (Procedure) Order 2016.
The Claimant’s case as formulated in his claim form
The Claimant’s complaint, as formulated in his claim form, presented to the tribunal on 23rd July 2018 is, in short, whilst employed by the Respondent he was not provided with a written statement of terms and conditions of employment nor was he provided with payslips.
The Respondent’s Response
In its response form, received by the tribunal on 1st August 2018, the Respondent denied the Claimant’s claim stating he had received the contract of employment and refused payslips.
Relevant Procedural History
The matter came before Mrs Griffin, the Chair on 14 August 2018 for a Case Management Meeting at which a list of issues was produced and today’s hearing was ordered.
The matter came before me for Final Hearing. The hearing had a one-day time estimate. The Claimant represented himself, and the Respondent was represented by Advocate Palmer.
List of Issues
The list of issues was set out in paragraph E(a) to (i) of the CMM Order and is as follows:
Statement of employment terms
Was there a statement of terms/contract of employment which set out the terms of the agreement between the Claimant and the Respondent?
If so, at any stage during his employment, did the Claimant have sight of that statement of terms?
Was the statement of terms signed by one or both parties and, if so, on what date?
Did the Respondent give a copy of the statement of terms to the Claimant, and if so, when?
Were there any mitigating circumstances to explain any failure to provide a written statement of terms?
Itemised pay statement
Did the Respondent complete itemised pay statements for the Claimant?
Did the Respondent provide itemised pay statements to the Claimant before or at the time of paying his wages?
If not, on what dates did the Respondent fail to provide itemised pay statements to the Claimant?
Were there any mitigating circumstances to explain any failure to provide itemised pay statements to the Claimant?
Particular Points that were
Litigant in person
The Claimant is a litigant in person. I explained to him that I was unable to run his case for him and what was expected of him as a litigant. When it came to cross-examining Mr. Harkins, Mr. Camacho indicated he had no questions for him. I therefore, explained to him the necessity of putting his case to a witness, after which he did put his case to Mr. Harkins who denied it.
DOCUMENTS AND EVIDENCE
The bundle as presented to the tribunal in accordance with the Orders of The Chair, was exceedingly modest, running to some 7 pages (2 of which were witness statements). However late last week and at the beginning of this week the Respondent produced more documents, including a contract of employment and payslips for the years 2016, 2017 and 2018.
Mr. Camacho did not object to these documents being admitted and, them clearly being relevant to the issues I have to decide, I admitted them in, even though they are incredibly late.
I heard evidence from the Claimant on his own behalf and from Mr. David Harkins the Respondent’s director.
All witnesses gave evidence by way of written witness statements that were read by me in advance of them giving oral evidence. Both witnesses were cross-examined
To assist me in determining the application I have before me today an agreed bundle consisting of some 7 pages prepared by the Claimant although as I say above other documents were added at the outset of the hearing.
In brief submissions the Claimant indicated he was not at the tribunal for any money and that if he is to win or not is a matter for the tribunal.
The respondent contended that I:
“had heard the evidence before you today and aware of the articles he brings the claim under, in all the circumstances the case I do not believe that compensation should be awarded and that it is refuted that the Claimant has not just brought the case for the paperwork, that is denied it is clear the documents were never requested despite being offered and the Claimant was aware that copy contract was available on request.
The only earnings details requested were end of year for tax. The first request from C was the unsigned letter of 5th July, in which there was no mention of asking for this beforehand.
The Claimant was Aware of JACS from his previous ET experience. The Respondent was saddened by the claim in light of the relationship you have heard about in cross.
Claim is financially motivated, that is not the purpose of the change in the law, therefore consider if the Claimant is to be believed what possible benefit is there to the Respondent not providing the documents, especially as the Respondent is well aware that C brought the claim against a previous employer.”
From the evidence and submissions I made the following finding of fact. I make my findings after considering all of the evidence before me, considering relevant documents where they exist, the accounts given by Mr. Camacho and Mr. Harkins in evidence, both in their respective statements and in oral testimony. Where it is has been necessary to resolve disputes about what happened I have done so on the balance of probabilities considering my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence including the documentary evidence. In this decision I do not address every episode covered by that evidence, or set out all of the evidence, even where it is disputed. Rather, I have set out my principle findings of fact on the evidence before me that I consider to be necessary in order to fairly determine the claims and the issues to which the parties have asked me to decide.
Is a construction company. Mr. Harkin’s is its director. MR. Harkin’s wife is the company secretary.
The Claimant was employed by the Respondent as a carpenter from 1 December 2013 until he resigned effective on the 5th June 2018. There is no claim for constructive unfair dismissal and the Claimant commenced alternative employment on the 7th June 2018 [Box 8 claim form].
The relationship between the Claimant and Mr. Harkins was a good one with the Claimant going on holiday with Mr. Harkins and his family to Scotland and attending social events at Mr. Harkins’ house.
Mr. Camacho signed a contract of employment with the Respondent. The contract is dated by both parties and bears the date 2nd December 2013.
Mr. Camacho says that this was not signed until many months later; whilst Mr. Harkins says that this was the date it was signed. In evidence for the first time the Claimant contended that this contact was signed at a hotel in Southampton. This detail had not been provided in any way prior to the hearing and, whilst I do not think the omission of this fact is particularly important it is telling that in his claim form there is no mention at all about signing a contract, indeed in his letter to the Respondent on 5th July 2018 (that is prior to the presentation of his claim) is there any mention of signing a contract.
The letter of 5th July 2018 makes no mention of requesting a contract of employment and it being refused on grounds that the Claimant may take the contract to JACS, a point raised for the first time in the Claimant’s witness statement.
I reject the claimant’s contention that he asked for a contract of employment. The relationship between Mr. Harkins and him was a warm one and I do not consider it credible that it would have remained like this if Mr. Harkins had refused to provide the contract because, if he did do so, Mr. Camacho may go to JACS, as is alleged. I also do not find Mr. Camacho’s account for why he did not request this contract in writing, whilst employed, to be persuasive bearing in mind he had made written requests for documents from a previous employer after receiving advice from JACS.
Doing as best as I can on the very limited evidence I have before me I find that the date the contract purports to be signed was, in fact, the date it was signed. I do so bearing in mind that the burden of proof rests on the claimant and that I do not consider that against these issues I have with the Claimant’s evidence the Respondent has nothing to gain by not providing a statement of terms and conditions of employment to the Claimant.
As far as the payslips are concerned, again the burden of proof here rests on the Claimant. The Claimant contends he was not provided with written payslips for the duration of his employment. I have before me three years’ worth of payslips and an explanation as to why pay slips for before that period of time are not available (the Respondent’s computer on which these payslips were stored had broken). The Respondent denies that the Claimant was not offered payslips and contends that he, in fact, refused them when provided.
Again, here the evidence is limited.
I note there is no claim presented by the Claimant that he had, in fact, not been paid appropriately for his time with the Respondent. I do not consider that the Claimant has satisfied me that he requested these documents and was refused them. Mr. Harkin denies that they were requested and, I can again, see no reason for him to refuse to provide them, when the Claimant seemingly had not challenged the level of his wages and appears to accept he had been correctly paid his wages.
Article 3 of the Employment (Jersey) Law 2013 (“the
E(J)L”) provides an employee with the right to receive a written statement of terms and conditions of employment. Article 7 of the E(J)L states:
References to the Tribunal
Where an employer does not give an employee a statement as required by Article 3 or 4 or where the statement the employer gives does not comply with what is required, the employee may require a reference to be made to the Tribunal to determine –
What particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned; and
Whether any compensation should be paid by the employer to the employee (and if so, subject to Article 8(1)(b), the amount of such compensation) by reason of the employer’s failure to comply with such requirements.
And a similarly worded provision applies in relation to itemised payslips in Article 53. The right to payslips is contained in Article 51.
CONCLUSIONS ON THE ISSUES
Having regard to the
findings of relevant fact, applying the appropriate law, and taking into account the submissions of the parties, I have reached the following conclusions on the issues the parties have asked me to determine.
Contract of employment
I have decided that the Claimant had signed a contract of employment with the Respondent on the 2nd December 2013 and that he was offered a copy of it, on balance I find that the Claimant has not satisfied me that he was not offered it and the inconsistencies in his accounts lead me to refer the Respondent’s evidence as to the contract.
I consider that the Respondent has complied with its obligations under the
E(J)L in relation to the payslips it was obligated to provide to the Claimant. I have seen a considerable number of these payslips and their authenticity has not been disputed by the Claimant.
The account for why no payslips have been presented before 2016 is credible and was not challenged. I can also see no reason for the Respondent not to provide payslips, there appears to be no benefit to them.
Accordingly I do not consider that the Claimant has shown, on the balance of probabilities, that these were not provided to him when he requested them as he alleges.
Conclusions on the Complaints of
The Claimant’s claims are, therefore, dismissed.
Mr M Salter, Deputy Chairman Date: 5 October 2018