Mr S Nazary v Boutique Manufacturing Ltd: 1600648/2017
REASONS
[1]This is a claim for unpaid wages brought by Salman Nazary against his former employer, Boutique Manufacturing Limited. The Claimant was employed as a pattern cutter for a month between March and April 2017.[2]In his ET 1, the Claimant claimed to be owed £4,000 for an additional job he undertook for the Respondent. No further details were provided. In response, the Respondent denied that the Claimant had undertaken any additional work or was owed any additional wages. Rather, it was averred that the Claimant’s standard of work was not as expected and he had failed to attend work on 11th April 2017 without giving any notice. As a result, his employment was treated as terminated. The Respondent further claimed that the Claimant subsequently made nuisance calls to the Respondent’s employees, acted in a threatening manner and demanded money, resulting in the Respondent reporting him to the police. - 1 -The Hearing
[3]The Claimant did not attend the hearing on 29th January 2018. No communication had been received from him by the Tribunal and he had not sent in any evidence in support of his claim. Ms Thomas attended on behalf of the Respondent. She provided me with the Claimant’s payslips (dated 4th April and 5th May 2017). I questioned Ms Thomas about a number of items in the payslips and about the Claimant’s statutory holiday entitlement but she conceded that payroll was not her area of expertise.[4]In the circumstances, it was in the interest of justice to afford both parties an opportunity to provide any further evidence they wished to be considered on the matter of the Claimant’s payslips and holiday entitlement. As such, I issued case management directions to that end and proposed that upon receipt of any further evidence, I would determine the claim without a further hearing. Ms Thomas was agreeable to that course of action.[5]The Claimant did not respond to the further call for evidence nor did he raise any objections to the matter being determined without a further hearing. I received a witness statement from Ms Thomas, which reflected her enquiries of the payroll department.[6]In the absence of any objection from the parties, I have determined the Claimant’s claim on the documents before me.The Relevant Law
[8]Section 13 of the Employment Rights Act 1996 (‘ERA 1996’) affords a worker the right not to suffer unauthorised deductions from his wages. This involves a consideration of what sums the worker is entitled to under his contract of employment and what sums he has actually been paid.[9]For the purpose of section 13 of the ERA 1996, the definition of “wages” includes “any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise” (per section 27(1)(a) of the ERA 1996).[10]By virtue of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 SI1623, proceedings may be brought before the Tribunal in respect of a claim of an employee for the recovery of damages or any sum for breach of a contract of employment where the claim arises or is outstanding on the termination of the employee’s employment.[11]The burden of proving his claim is on the Claimant. He must prove that he is owed the sums he claims on the balance of probabilities (i.e. it is more likely than not). - 2 -Findings of Fact
[12]The Claimant has provided no evidence at all to support his bare assertion that the Respondent owes him £4,000. In contrast, the Respondent has provided wage slips and witness evidence regarding the Claimant’s employment contract and the work he undertook. I had no reason not to accept the Respondent’s evidence.[13]As such, I find that the Claimant was employed as a pattern cutter with effect from 7th March 2017. He underwent a five-day trial and commence employment at an hourly rate of £8. He was employed for 40 hours per week. He subsequently asked to be paid an annual salary which the Respondent agreed to, at £13,800. Adjustments were made to his payslips to reflect the agreed changed term of the Claimant’s employment contract.[14]During his limited employment, the Claimant requested and was granted a number of days and hours off work. The time off was equal to or in excess of his accrued holiday entitlement but no deductions were made from his wages by the Respondent.[15]The Claimant did not undertake any additional work for the Respondent outside of his contractual responsibilities.[16]The Claimant failed to attend work on 11th April 2017 and did not contact the Respondent again for a number of months. As such, the Respondent was entitled to treat his employment as terminated by resignation, with his last day of employment being 10th April 2017.[17]The Respondent paid all sums owed to the Claimant after the termination of his employment. Application of the Law to My Findings15. The Respondent paid to the Claimant everything he was entitled to under his employment contract. It follows that there were no unlawful deductions from the sums owed to the Claimant.16. For that reason, his claim is not made out and is dismissed. Order posted to the parties onFindings of Fact
[1]By a reserved judgment with reasons promulgated on 15th April 2018, I dismissed the Claimant’s claim for unlawful deductions from his wages, following a hearing at Carmarthen Civil Justice Centre on 29th January 2018. The Claimant’s application for a reconsideration of that judgment was received by the Tribunal on 19th April 2018. The application was referred to me as the judge who presided over the hearing on 29th January 2018 and reached the said judgment.[2]The Claimant had indicated when he applied for the reconsideration that he would be sending in further information in support. I gave the Claimant until 4th May 2018 to send in anything else he wished to rely upon. Further submissions and evidence was received from the Claimant by the Tribunal on 25th April 2018.[3]The hearing on 29th January 2018 was to determine the Claimant’s claim that he was owed £4,000 by the Respondent for a particular job he had undertaken. As recorded in my reasons of 15th April 2018, no further details were provided by the Claimant in his claim form. The Claimant did not attend the hearing or adduce any evidence. The Respondent did. - 1 - Since issuing his claim, the Claimant had failed to communicate with the Tribunal or adhere to the case management directions issued. On the basis that there was nothing before me to suggest that the Claimant was not aware of the hearing, I concluded that it was in the interest of justice to proceed in his absence. The Claimant did not suggest in his application for a reconsideration that he was unaware of the hearing or that he took issue with it proceeding in his absence. He does not explain why he chose not to attend.[4]After hearing evidence on behalf of the Respondent, I adjourned the hearing on 29th January 2018 and afforded both parties an opportunity to submit further evidence regarding the Claimant’s payslips and holiday pay. The Tribunal received further evidence from the Respondent but again heard nothing from the Claimant.[5]It follows that when I determined the Claimant’s claim, there was no evidence from the Claimant, save for a bare assertion in his claim form that he was owed £4,000. In contrast, I had witness statements and documents from the Respondent, which confirmed that the Claimant had been paid all the sums believed to be owed to him. There was nothing before me to suggest that the Claimant had undertaken additional duties or was specifically owed £4,000.[6]The Claimant has provided what he claims are two letters written by him to the Respondent on 3rd May and 17th August 2017 (after his employment had ended). In 3rd May 2017 letter, he asked the Respondent to pay him his wages for his employment (which lasted from 7th March to 11th April 2017). In 17th August 2017 letter, a request was again made for his unpaid wages plus a further £800 for work undertaken outside of his contractual hours (which was itemised).[7]The Claimant also provided a covering letter addressed to the Tribunal. In it, he claimed that he was never paid anything for his employment by the Respondent and was owed £1,891.[8]Rules 70 to 73 of the Tribunal’s Rules of Procedure 2013 deal with reconsideration of judgments.[9]Rule 72 states that if it is considered that there are no reasonable prospects of the judgment being varied or revoked, the application must be refused.[10]In my judgment, that is the case here. The Claimant has provided no explanation for why, after issuing his claim in August 2017, he failed to adhere to the Tribunal’s case management directions, failed to submit any evidence in support of his claim, failed to attend the hearing of his claim in January 2018 and failed to take the opportunity to supply further evidence after the hearing.[11]If the letters he now relies upon are genuine, why did he not submit them previously when given clear opportunities to do so? There is nothing to - 2 - prove that the letters were written at the time claimed or sent to the Respondent. To that end, they are self-serving and do nothing to advance his application. If anything, they undermine the credibility of his account, since they do not accord with the £4,000 sum claimed in his August 2017 claim form. In addition, the Claimant questioned the absence of bank statement evidence from the Respondent but singularly failed to disclose his own statements to evidence non-payment of his wages.[12]In contrast, I received both documentary and witness evidence from and on behalf of the Respondent, who also attended the hearing on 29th January 2018 to have that evidence tested.[13]I was given no basis not to accept the Respondent’s evidence and nothing at all to support the Claimant’s claim. In my judgment, and for the reasons set out above, the two letters now relied upon by the Claimant do not undermine that conclusion. The onus was on the Claimant to prove his case. He failed to do that and his claim was dismissed as a result. The evidence he now relies upon does not undermine that finding. In addition, he failed to explain why the amount he now claims he is owed is different from the sum advanced in his claim form.[14]For all those reasons, I am satisfied that there is no reasonable prospect of the judgment of 15th April 2018 being either revoked or varied. As such, the application for a reconsideration is refused.[15]As the application was refused pursuant to Rule 72(1) Tribunal’s Rules of Procedure 2013, it was not necessary to invite the Respondent’s response to it or consider listing the application for a hearing. However, both parties must be informed of the outcome and as such, a copy of this determination will be sent to the Respondent, in addition to the Claimant. Judgment posted to the parties on ………11 May 2018…………. ……………………………………….