IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

TRIBUNAL JUDGMENT

 

Reference:                            [2021] TRE 048

 

Hearing Date:                       8 September 2021

 

Before:                                   Advocate Cyril Whelan, Deputy Chairman    

                                               

Appearance:

 

For the Claimant:                                In person, assisted by Ms Louise Almeida (translator)

 

For the Respondent:           Mr Frank Ronksley & Mr Paul Bourke, Directors

 

 

DECISION

 

The claims are unsuccessful.

 

       REASONS

 

1.       The Claimant (“Mr Da Silva”) worked for the Respondent (“the company”) as a warehouseman / driver. He did so from 7 May 2018 until 13 May 2021.

 

2.       By a Claim Form presented to the Tribunal on 30 April 2021 he complained that the company owed him holiday pay and sick pay. It is not disputed that he has the necessary employment status to bring those claims.

 

3.       About holiday pay, Mr Da Silva says that the company closed down for a week in April 2020. He was paid for that idle week, but he says that the week’s pay was in fact a week’s money taken from his holiday pay entitlement. He says the company used that holiday pay without his consent or knowledge to pay his wages for the idle week i.e. the company’s April 2020 closure week. He says, therefore, that the company must reimburse him for that week of holiday pay because its use, as described, had been unknown to him, did not have his consent, and was therefore improper.

 

4.       The company resists this. It says that the use of holiday entitlement during April 2020 to combat the effects of the pandemic on the company’s business had Mr Da Silva’s advance and fully informed consent.

 

5.       In its Response Form of 19 May 2021 the company explains that so far as concerns its warehouse staff, including Mr Da Silva, there was no closure, no “idle week”. These staff members simply worked reduced hours. “Despite working reduced hours and the significant detriment that the lockdown had on our income, we did not look to revise our contracts to reduce pay to reflect the reduced hours, all staff were paid in full in accordance with pre-pandemic terms and conditions.”

 

6.       The evidence of the company was that it asked all staff voluntarily to take one week’s paid leave during April from their annual leave entitlement. It supported this evidence by producing an email of 7 April 2020 exactly to that effect.

 

7.       The evidence of the company is that having sent the email to each section of its business, it went further. Because English is not Mr Da Silva’s first language (it is Portuguese) a separate meeting was held with him (and one other, in similar case) to explain what was being requested. Moreover, further to ensure that Mr Da Silva understood what was being asked of him, Mr Fabio Calaca was deliberately present at the meeting. Mr Calaca is Mr Da Silva’s line manager and is fluent in both English and Portuguese.

 

8.       Mr Da Silva raised no objection; rather, he said he would do whatever was needed to support the company in getting through the lockdown. Accordingly, he took the 14 to 17 April, and 20 April off work as paid leave, and was paid in full for those five days. His work was covered by other members of the company, including directors. All that happened was that he was asked to take part of his paid leave entitlement at a particular time, did so, and was paid. This was to avoid a general backlog of untaken leave among the whole complement of the company’s staff building up because of the pandemic with eventual consequential logistical and financial problems for the company.

 

9.       The company says that Mr Da Silva is wrong, therefore, to say that a week’s holiday pay was apportioned without his knowledge or consent, against a week he did not work because the company was closed. The relevant section remained open, and this was no more than a week of annual leave being taken voluntarily after proper consultation attended by effective steps to ensure that despite potential language obstacles Mr Da Silva fully understood the position. I find as a fact that the division of the company within which Mr Da Silva worked did not close down, and that the position was as described by the directors who gave evidence.

 

10.    For the company, two directors appeared and gave evidence, namely Mr Frank Ronksley and Mr Paul Bourke. Mr Ronksley is the company’s managing director. They gave evidence to similar effect as follows:

(a)         the section of the company in which Mr Da Silva was employed did not close down for business during lockdown. In support, Mr Ronksley produced an email of 2 April 2020 to the relevant department of government evidencing that fact, and speaking of two delivery drivers continuing to work. Mr Da Silva was one of those drivers;

 

(b)         on advice, the company had written to all employees asking each one of them to consider taking one week’s annual leave during the month of April. An extract of the 7 April 2020 email to exactly that effect and signed by the directors was produced in evidence and contains this paragraph:

“We are proposing to pay staff in full for the month of April, including any commissions that are due, however, we do request that you consider taking one week of your paid annual leave entitlement for 2020 during the month. Without us taking such measures, we will face reopening, at a yet to be determined date, with all our staff having accrued holidays that they need to take over a reduced time period. That period, when we are looking to re-boot the business, will be key to our long-term survival.”

11.    Mr Ronksley’s evidence was that he met specifically with Mr Da Silva and another employee whose first language was not English. He ensured that Mr Da Silva’s line manager – Mr Calaca, the warehouse manager – was present because he was fluent in both Portuguese and English and able to explain the company’s proposal exactly. Mr Da Silva had confirmed that he was happy to take five days leave and even commented that he would do whatever was necessary to get the company through a difficult situation. He proceeded to take 14th – 17th and 20th April as annual leave accordingly. I was shown evidence of this from the company records and noted in particular that Mr Da Silva had done this just one week after the email on 7 April 2020 to all employees, requesting them to consider such a course. During this leave, Mr Da Silva’s section remained open and his duties were covered by two directors and Mr Calaca, the warehouse manager mentioned earlier.

 

12.    The company provided me with documentary evidence that Mr Da Silva had taken the said days in April as annual leave and had been fully paid for them.

 

13.    As to Mr Da Silva’s evidence, it is set out this way in his Claim Form: “the company closed down in April 2020 one week, of which were paid, at the time we were not informed that this week would be paid by using my holiday entitlement. It was only in September 2020 when I went to book a week’s annual leave in December that I was informed that I had no annual leave left due to them being used in April when the company was closed.” Mr Da Silva denies that the explanatory meetings with him and a colleague, as described by Mr Ronksley and Mr Bourke, had ever taken place.

 

14.    I prefer the evidence of the company’s directors because they produced documentary evidence that Mr Da Silva’s section was in fact open during lockdown, namely an email dated 2 April 2022 to the relevant government agency confirming that the company was conducting limited deliveries and sales from their Trade Centre despite their showroom being closed. Specific reference was made in that email to two delivery drivers of whom Mr Da Silva was one. It is also the case that the email dated 7 April 2020 to all staff confirms that the company was continuing with limited deliveries and sales from their Trade Centre.

 

15.    Moreover, the email of 7 April 2020 is entirely clear as to the proposal being made by the company about leave during April, and the action taken by Mr Da Silva soon thereafter is consonant with that proposal, a proposal which could easily be described as rational and fair.

 

16.    Mr Da Silva, on the other hand, provides no rational explanation for a supposed belief that a company – in troubled times – would pay him a full wage for absenting himself from work for a week by agreement, while others, including two directors, did his work, and that in addition he would receive his full complement of leave with pay. These factors and the demeanour of the witnesses lead me to prefer the evidence of the company.

 

17.    It might reasonably be said that much turned on whether or not the explanatory meeting described by the company ever took place. It would have been helpful to have heard from either or both of the other people said to have been present at the meeting, namely the other driver for whom the first language was not English, and Mr Calaca, the warehouse manager who was also Mr Da Silva’s line manager and fluent in both English and Portuguese.

 

18.    I am satisfied that the company took the presence and written and oral evidence of two of its directors to be sufficient to respond to the claim being made; I remain unclear as to why Mr Da Silva did not exercise his option to call either or both members of staff to whom reference is now being made to support his assertion that the meeting in question did not take place. On the preponderance and quality of the evidence which was before me I find as a fact that the meeting in question did take place.

 

19.    In short on this head of claim I accept the position advanced by the company, and am in no doubt that it owes nothing to Mr Da Silva under this head, which fails accordingly.

 

20.    I turn next to the history of Mr Da Silva’s claim for sick pay. His Claim Form simply recites that he was off sick for an unspecified period and was contractually entitled to be paid for that period. However, the company did not pay him, that omission was unlawful and the company should be ordered to pay him his entitlement in this regard.

 

21.    Again, the company resisted the claim. It says that Mr Da Silva had exhausted his entitlement to contractual sick pay by receipt of a payment earlier in the relevant contractual cycle, so that there was no extant entitlement against the company.

 

22.    Mr Da Silva confirmed at the Case Management Hearing that he no longer intended to pursue this head of claim and, with his consent, it was dismissed accordingly. In summary, both heads of claim advanced by Mr Da Silva have been unsuccessful.

 

 

 

 

FOOTNOTE

 

By way of a footnote, I observe that Mr Da Silva did not engage closely with the Tribunal process. He did not produce a statement as required by a Case Management order, nor did he furnish himself with a copy of the hearing file in advance of the hearing. Nevertheless, I note Mr Da Silva’s apparent conviction that the justice of the case was with him; it appeared to me to be a genuine but mistaken belief.

 

Equally, I note the restraint with which the company responded to the claim, and the helpful nature of the file which it put together for the hearing. The evidence left me in no doubt that, in this matter, this was a caring and responsible employer which managed fairly to maintain its business – and therefore preserve jobs - throughout unusually testing trading times.

 

 

 

 

Advocate Cyril Whelan, Deputy Chairman                                                                     Date: 9 September 2021