Below is a summary review of a recent case before the Tribunal:-
Date: 25 May 2018 (JEDT)
Claimant – Mr Claudio Nascimento Andrade
Respondent – Mr Ivo de Castro & Mrs Lynsey de Castro trading as DC Cleaners
The Claimant submitted to the Tribunal a claims form which 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 the “Claims”).
The Respondent did not file a response to the Claimant’s claims within the limitation period (being 29 March 2018) but sent an email response in a few days late.
The Tribunal wrote to the Respondent rejecting the Respondent’s email response 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.
On 13 April 2018, the Respondent applied for a reconsideration of the rejection of its response under Article 10 of the Employment and Discrimination Tribunal (Procedure) Order 2016 (“Procedure Order”) and gave various personal reasons why their response had been late.
The Respondents appeal for a reconsideration by the Tribunal was refused.
Under Article 12 of the Procedure Order, it states that:
“The Chairman or a Deputy Chairman must decide whether on the available material 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”.
With this in mind, it was decided that the Claim Form set out the Claimant’s claims clearly and unambiguously and the Chairman was satisfied that there was sufficient material to enable them to make a proper determination in this case.
Awards and Conclusion
Unfair Dismissal
The Claimant was employed for 22 weeks between 1 October 2017 and 3 March 2018. The Claimant therefore did not have the length of continuous employment with the Respondent to meet the criteria which would have enabled him to his unfair dismissal rights. Article 68 of the Employment Law, 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, regardless as to length of service. In his Claim Form, the Claimant identified a clear link between his request for payment of the minimum wage and his dismissal. Article 16 of the Employment Law provides that employees must be paid at least the minimum wage, this being a statutory right. Held: the Respondent dismissed the Claimant because he requested payment of the minimum wage and that under the provisions of Article 68, the dismissal was unfair.
The Claimant was awarded three weeks’ pay for his automatic unfair dismissal.
Wrongful dismissal – failure to give statutory notice to terminate:
The statutory minimum notice required to be given by an employer to terminate the employment of an employee who has been continuously employed for less than two years is one week. The Chairman therefore awarded 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.
There were various other successful claims for unpaid holidays and unpaid wages.