Dev Bahadur Khadka v Saiham & Soikat Trading Ltd: 1403083/2019
JUDGMENT
ON RECONSIDERATION The judgment of the Tribunal is that the Respondent’s application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked.REASONS
[1]The Respondent applied for a Reconsideration of the Judgment of 09 October 2019 by email dated 11 November 2020. That email stated that the Claimant had manufactured evidence by manipulating a text message, altering its date from 14 December 2018 to 24 January 2019. No evidence of this allegation was provided. No text message of either date features in the judgment.[2]The application states that the reason the application is made is that trade is bad by reason of Covid 19 restrictions. That is not relevant to liability.[3]The application also states that Enamul Kabir is a manager not a director of the Respondent, and that is also a reason why reconsideration is sought. He attended to represent the Respondent, and whatever his status within the Respondent may be that is no reason to reconsider the Judgment.[4]The relevant procedural rules are in Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. Those relevant Rules are as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. Reconsideration by the Tribunal on its own initiative 73. Where the Tribunal proposes to reconsider a decision on its own initiative, it shall inform the parties of the reasons why the decision is being reconsidered and the decision shall be reconsidered in accordance with rule 72(2) (as if an application had been made and not refused).[5]The application was made promptly. The Claimant has not made any observations on it: but it appears that the Respondent did not send a copy of the application to him. It was not properly constituted.[6]The application has no merit. Accordingly I decline to reconsider the judgment, as the application is no more than a wish to avoid payment.[1]Mr Khadka had requested a Nepali interpreter, but none was available. He was given notice of some days before the hearing but wished to proceed without one. He was accompanied by a McKenzie friend, Nicola Jepp, who had also assisted him before the hearing. I checked with her periodically that there was no further assistance she felt Mr Khadka needed, and there was not.[2]No-one from the Respondent attended at 10:00. I told Mr Khadka that I would delay the start of the hearing from the scheduled 10:00 am start to 10:15 in case they were delayed and checked with the Employment Tribunal’s Bristol office whether there had been any email or telephone call from the Respondent. There had not. There had been an email on 08 October 2020 from the office to Mr Khadka about the absence of an interpreter, asking him whether he wished to proceed. This had been copied to the Respondent. Mr Khadka had replied that he wished to proceed and that also had been copied to the Respondent. Mr Kabir then arrived at 10:10.[3]Mr Khadka filed his claim on 26 June 2019. At a hearing on 07 October 2019 Mr Khadka withdrew a claim of discrimination on the grounds of religion or belief, and EJ Goraj dismissed claims of sex discrimination and for paternity pay.[4]The remaining claims are for notice pay and for pay for holiday accrued but not taken. These were out of time, but EJ Goraj decided that it was not reasonably practicable for them to be presented in time and that they had been presented in a further period that was reasonable, and so permitted them to proceed.[5]The claim for holiday pay requires me to decide how much holiday had accrued and what was taken, and if not all the entitlement had been taken to calculate the value of the holiday accrued and untaken.[6]There were no witness statements and no documents. Both Mr Khadka and Mr Kabir gave oral evidence. Each produced documents as they went along. There were text messages to and from the two of them, and the P45 was on Mr Khadka’s mobile phone. Mr Khadka produced his payslips to December 2018. As all these were to or from the two witnesses and to one another, and not disputed, I allowed them as evidence. I declined to read documents from both which were prepared after the hearing before EJ Goraj which were attempts to settle the matter. Findings of fact[7]On 01 May 2018 the Claimant started his employed by the Respondent in its restaurant in Babbacombe, Torbay. The restaurant is run by Mr Kabir.[8]Mr Khadka’s wife gave birth to their son on 11 December 2018.[9]Mr Kabir states that Mr Khadka ceased attending work on 08 December 2019, but that they paid him to 31 December 2019. Mr Kabir says that he asked Mr Khadka to work a Friday and Saturday (25/26 January 2019) and then finish, but that he did not work those dates.[10]Mr Kabir’s accountant provided a P45 to Mr Khadka. It is dated 24 January 2019 and shows a leaving date of 31 December 2018.[11]Mr Khadka says that in his claim form he put that date as the last date he was employed because he followed the P45, but that he had about a week off when his son was born, and then worked until he got the text message on 22 January 2019.[12]The text messages support Mr Khadka’s case. The message of 22 January 2019 is one of dismissal. It said: “I am sorry to hear that you were having problems for your son’s health. Anyway you are very much in tension with work and family, so if you can do this Friday and Saturday and finish this week. Thanks” I find that Mr Kabir dismissed Mr Khadka on 26 January 2019.[13]I accept Mr Khadka’s evidence that he worked for all of the time save a short period of paternity leave, for which he was entitled to be paid. My reasons for so finding are the various text messages saying that Mr Khadka would not be in work, for example by reason of his baby son being in hospital, or because he had a cold. There are no messages from Mr Kabir asking where he is or why he is not at work. There were no rotas showing the people who were working at the restaurant. Mr Kabir simply accused Mr Khadka of lying and said that because he (Mr Khadka) had produced no supporting evidence that he was working he should not be believed. Mr Khadka gave evidence on affirmation – there was a case to rebut, but Mr Kabir provided no evidence at all to do so. Mr Kabir’s oral evidence was that he dismissed Mr Khadka as he found him unreliable. Mr Khadka had made himself unavailable for some shifts, and this was indeed the reason for the dismissal. There was no overall reduction in hours worked. No payslip was provided for January 2019.[14]Mr Kabir did not lead any evidence that Mr Khadka had taken any paid holiday, and I accept that none was taken. Holiday pay[15]Mr Khadka was employed for 9 months (01 May – 26 January 2018), which is 3/4 of a year. His gross pay was £1017.90 a calendar month. That means his yearly pay was 12 times that amount, which is £12,214.80. His weekly pay was 1/52nd of that amount, which is £234.90. The whole year’s entitlement is 5.6 weeks holiday. 3/4 of that is 4.2 weeks. 4.2 x £234.90 is £986.58. Notice pay[16]Mr Khadka was paid monthly and so was entitled to a month’s notice. He was paid £1017.90 a month and so this is the amount of his claim for notice pay.[17]Mr Kabir does not say that there was any gross misconduct by Mr Khadka. The response form is far from easy to understand, and in it the Respondent states that Mr Khadka was rude to customers and there is reference to staff taking home fish from the restaurant, and that this was not permitted. This was not developed at all in the hearing – it was solely the issue of non attendance. In oral evidence Mr Kabir said that it was the tandoori chef who had been taking the fish and Mr Kabir had dismissed him. I find that there was no gross misconduct by Mr Khadka.[18]Accordingly Mr Khadka was entitled to notice. Mr Kabir says that Mr Khadka was working at the Curry Lounge and not at his restaurant but provided no evidence of this. He says that Mr Khadka stopped attending for work and that he paid Mr Khadka to the end of December 2018 as he had a new baby. I found for Mr Khadka in this conflict of evidence, for the reasons given above.[19]Four days’ notice was given, on 22 January 2019 by the text message. Mr Khadka says that notwithstanding the absence of a payslip he was paid in cash for the work he did in January 2019 (as he was all the time, weekly, with payslips at the end of the month) so that he had only arrears of pay when he got the text message, which was paid. There was no written contract of employment (no claim was made about this). The payslips are monthly, and both Mr Khadka and Mr Kabir referered to monthly pay in the claim and response forms. I find that Mr Khadka was entitled to a month’s notice. He was not paid for the four days to 26 January 2019, so his notice pay is the one month’s pay, which Mr Kabir gives as £1017.90.[20]Accordingly I order the Respondent to pay to the Claimant the sum of £968.58 holiday pay and a further £1017.90 notice pay. The total is £1986.48. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the Reserved Judgment sent to the parties on 27 September 2018, is corrected, as below: The total award is £1986.48, not £2000.48, both in the judgment and in paragraph 20 of the reasons. The amended figure is in bold type on the attached copy of the judgment. Employment Judge Housego Date 08 January 2021 21st January 2021 By Mr J McCormick Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing.