Ms V Kotseva v Hickory Dickory Dock Day Nursery Ltd and M A Chand: 1300258/2024
JUDGMENT
The Tribunal’s findings in respect of this claim are:[1]The claimant’s claim for unlawful deduction of wages pursuant to s.23(1)(a) of the Employment Rights Act 1996 succeeds. The respondents are to pay £10.42 x 54 hours = £569.16 gross to the claimant and deduct the appropriate tax and national insurance.[2]There is a 10% ACAS uplift on these sums of £56.92 due to the respondents failing to deal with the claimant appropriately when she attempted to provide information as to unpaid wages she was owed.[3]The total sum owed by the respondents to the claimant is £626.08. In respect of the case management applications made prior to the hearing commencing the Tribunal amended the following: 1. The respondent’s name in this matter has been clarified by the appellant further to Tribunal correspondence on the issue. On the 3 June 2024 the appellant confirmed the respondent to be Hickory Dickory Dock Day Nursery Ltd (Company Registration No: 06732078) and the director of the company to be Michael Allen Chand. The respondent’s details have been changed to(1) Hickory Dickory Dock Day Nursery Ltd and(2) Mr Michael Allen Chand.REASONS
[1]The claimant confirmed that she understood the Bulgarian interpreter (Ivanka Almeida).[2]The respondents did not attend the hearing and the Tribunal had no method of contacting them and all notices were sent to them by post, but the respondent had not engaged with the proceedings including responding via an ET3 to defend or concede the claim against them.[3]I have considered the Tribunal Rules and Presidential Guidance and in light of the respondents non-engagement with these proceedings it is in the overriding objective to continue with the hearing on absence of the respondent. Length of Hearing[4]The Tribunal had afforded some time for the respondent to join before determining if the hearing could proceed. The claimant had said that she did not know how long such a hearing would take and needed to go to work by 11:15.[5]The Tribunal gave a time estimation and given the claimant needed to go to work it was agreed the judgment would be reserved. Claims and Issues[6]The claimant confirmed the issues for the hearing which were: 6.1 Whether the claimant was owed unpaid wages for 54 hours work after the first respondent closed down on 8 November 2023.Evidence
[7]The claimant’s oral evidence can be summerised as follows: - The claimant set out what had changed in November 2023 for her not get paid, after getting home around 5p.m. she received a WhatsApp message from the respondent at 7p.m. to say Michael had decided to close the nursery. - There was a lot of discussion in the WhatsApp group between the respondent and staff members. The claimant queried why the nursery was closing. The nursery closed on 8 November 2023. - The claimant confirmed that she was missing a payment from September – October 2023 for 23 hours, and then from 31 October – 7 November 2023, the total being 54 hours. - The respondent had sent the staff details of where they could send details of missing unpaid wages to. The claimant sent details of what she was owed to this email address but never received a response. - The claimant agreed she did not send evidence of any of this to the tribunal for this hearing as she did not realise she was supposed to. She has been using google translate to understand correspondence and what she should do for these proceedings but the language barrier meant she did know what she needed to provide. - As far as the claimant knows none of her colleagues were paid the wages they were owed despite contacting the email address provided by the respondent. - The claimant broke down the wages owed from October -November 2023: 10 Oct 8:30-5, 11 Oct 8:30-5, 12 Oct 08:30-5, 13 Oct 08:30-5, 18 Oct 08:00 – 4:30, 20 Oct 08:00-4:30, 23 Oct 08:30-5, 24 Oct 11:00-4, 25 Oct 08:30-5, 26 Oct 08:30-5, 27 Oct 08:30-5, 31 Oct 08:00-13:00, 02 Nov 08:00-1, 03 Nov 08:00-1, 06 Nov 08:30-5, 7 Nov 08:30-5. - The missing additional payment was 23 hours from September- October 2023 which the claimant contacted her manager about on 27 October 2023 and provided pay slips showing she was 23 hours short. This combined with the 31 hours totals 54 hours owed. - The claimant confirmed her hourly rate was £10.42 before tax and she would get an itemised pay slip every month. - On 31 May 2024 the claimant said the respondent, via the claimant’s manager Jade, wrote the following (which the claimant read out from her WhatsApp chat) “Hey I phoned you today there is nothing we need to do with what has been given, once we’ve calculated, we will send another letter, the figure may not match what has been provided. Once liquidated you will receive another letter as to how to claim”. - There was also some chat between employees and Jade about liquidation and when this would happen. - The claimant does not understand what is going on and she has taken all the steps the respondent advised her to. - The claimant’s evidence was that she spoke to her manager (Jade) and the lady from finance (Jamie) who both agree she is owed 54 hours. She never spoke to the owner Michael about this, she had never met him.[8]The claimant made closing submissions and stated she had documentary evidence that supported her claim that could be sent to the tribunal. It was explained it was now too late to do this and a decision would need to be made on what was before me. Fact Findings Is the claimant owed wages from September to October 2023 of 23 hours?[9]The claimant has agreed that she provided no documentary evidence to support her claim but that this was because she is not legally represented, and English is not her first language – she has been using google translate to try and engage with these proceedings. An interpreter was used for this hearing to assist the claimant.[10]The respondent has failed to engage with the proceedings and filed no defense to the claimant’s claim she is owed wages.[11]The claimant, when giving evidence, was permitted to read out messages from WhatsApp from the respondent’s manager Jade to employees about the closure of the nursery. I accept the nursery was closed in the manner described by the claimant and that the claimant and others were informed to submit details of wages owed to them, as they were not fully paid until 7 November 2023 when the nursery closed suddenly.[12]However, the 23 hours are prior to the nursery closing down and appears to be a dispute the claimant was dealing with, in that one of her itemised pay slips was 23 hours short. She referred this to finance on 27 October 2023 but did not provide a copy of this correspondence. Due to when this was referred to finance it would have been resolved in the November 2023 pay but was not done so as the nursery had closed prematurely.[13]I found the claimant to be a credible witness and bear in mind that English is not her first language, and she is a litigant in person. It is unfortunate that the claimant, who clearly had all the evidence on her phone, but had failed to send this to the Tribunal. I am able to consider her oral evidence and the fact the respondent chose not to respond and participate in these proceedings. I find that based on this evidence that the claimant was short of 23 hours in her pay slip and that this was raised towards the end of October 2023, so the respondent was unable to correct this in November 2023. Is the claimant owed wages from October to November 2023 of 31 hours?[14]Given my findings above I have accepted, given the messages read out from WhatsApp from the respondent, that the respondent suddenly closed the nursery on 7 November 2023 without paying the claimant for hours worked in October up until 7 November 2023.[15]I also note the detailed evidence the claimant gave as to the days she worked in October and November 2023 including the hours. I find I accept this evidence in absence of the respondent responding to this claim and the claimed wages she is owed.[16]I find that the claimant has not been paid for 31 hours of work for the respondent from October to 7 November 2023.