Mr A Messias v Surejogi Group Ltd: 2200701/2019
JUDGMENT
Mr Messias does not win his claim for unpaid wages.REASONS
Claims
[1]Mr Messias has brought a claim for wages owed. He worked for 42 hours / week throughout his employment for an annual salary of £22,000. He says that he was only required to work 40 hours / week under his contract, so he is owed overtime for an extra 2 hours/week, totalling approximately £1500.[2]There were two witnesses, Mr Messias and the current General Manager of the Hotel, Mr Dewan. Each side brought with a set of papers for me to look at. Fact findings[3]Mr Messias applied to work for the Courthouse Hotel as receptionist/duty manager. He had an initial interview on the telephone with Mr GemmelBrown from HR. This was followed by a meeting with Mr Gemmel-Brown on 24 July 2017 and a further interview with Mr Ghosh on 28 July 2017, which Mr Sommer came into at some point. Mr Ghosh was the Front of House Manager, Mr Sommer was the General Manager at that time.[4]Mr Gemmel-Brown asked what Mr Messias had been earning in his previous job and what his salary expectations were. Mr Ghosh asked if Mr Messias could work nights and whether he would do 12 hour shifts. Mr Messias said yes.[5]Mr Messias says there was no further discussion about the pay or about exactly how many shifts and hours / week he would be doing. The Hotel says that is extremely unlikely and there must have been further discussion. Unfortunately, none of the three managers concerned appeared as witnesses at the tribunal hearing. There was an email from Mr Sommer who does not remember the particular case and simply says that 4 days on 3 shifts off was the standard shift pattern for reception managers. I think it is possible that at this stage, before any offer was made, the exact number of hours were not discussed.[6]On 28 July 2017, Mr Gemmel-Brown telephoned Mr Messias and offered him the job. He said the pay would be £22,000 per year. Mr Messias accepted. Mr Messias says there was no discussion about the exact shifts or hours. He says everywhere he had worked previously had been on 40 hours/week and he had assumed it would be the same.[7]I think it is extremely unlikely that an HR officer would offer a job without spelling out the pay and hours. I also think it is very unlikely that Mr Messias would have accepted the job without this information. Mr Messias may now have forgotten the exact conversation. It was two years ago. But I believe Mr Gemmel-Brown must have said the job was for 42 hours and Mr Messias must have accepted that.[8]Mr Gemmel-Brown told Mr Messias to report for work on 2 August 2017. Mr Messias was called to the HR Office where he was given both an offer letter and a contract of employment to sign. He signed both. He says he read the contract but not the offer letter. He was given a copy of the contract to keep but not a copy of the offer letter. The offer letter is dated 1 August 2017 and addressed to Mr Messias’s home. Mr Messias does not remember having received it.[9]The contract of employment is dated 2 August 2017. It says this about hours at clause 5: ‘Your basic working time is 40 hours per week and in accordance with the needs to the business. Please be informed that meal breaks, uniform changing time, arrival and departure to the prop, do not form part of your hours worked. You will be required to work these hours at such time and on such days … as are designated by your Head of Department/Manager….. You may be requested to work overtime, for which you will be paid or given time off in lieu. Please note that overtime is only granted/paid in lieu of time off, if it is sanctioned in advance and fully authorised and approved by the concerned Head of Department and General Manager.’[10]The offer letter is from Mr Sommer and dated 1 August 2017. It is 3 pages long. It notes the start date as 2 August 2017. It sets out matters such as the place of work, notice entitlement and holiday entitlement. It says ‘Your employment is subject to the contractual terms and conditions of employment which will be handed over to you for signature upon commencement along with your team member handbook’. At the end, above the area for signature, it says, ‘I am pleased to accept this offer of employment on the terms stated above.’ Mr Messias has signed and dated it 2 August 2017.[11]The offer letter says this about hours: ‘Your basic work pattern will consist of 4 days on 3 days off (not necessarily consecutively), 10 hours and thirty minutes per shift, exclusive of meal breaks. Hence your working time works out to an average of 42 hours per week and would be in accordance with the needs of the business.’ The paragraph then continues with the same wording as in the contract from ‘Please be informed’ to ‘and General Manager’.[12]I notice that the offer letter contains far more detail of how the hours break down than the contract of employment.[13]There is also a payroll form starter form which Mr Messias completed on the same date. At the bottom, under the Mr Messias’s signature, someone has entered annual salary as ‘£22K’ and circled the hours as ’42 HAR’. Those details were added after the claimant had signed the form.[14]Mr Messias says there was no discussion about shifts and hours after he started work. He says he was expected just to look at the rotas posted on the wall.[15]Mr Messias was rostered to work 42 hours throughout his employment and he did so. He worked four 12 hour shifts with one and a half hours unpaid breaks on each shift. All the other receptionist/duty managers who he ever worked with had the same hours and shift pattern. By contrast, in the Concierge department, they worked only 40 hours and recouped the extra 2 hours by time off in lieu. When Mr Messias heard about that, he wanted to know why he also was not given time off in lieu.[16]The first time Mr Messias made any written complaint that his hours were 40 not 42 and that he should be paid for the extra 2 hours or given time off in lieu was on 27 November 2017 when he wrote to the then General Manager, Mr Schultheis. The letter, which is copied to Mr Ghosh, says: ‘More than two weeks had passed without having a reply from you regarding my pension Scheme refund and my overtime working hours payment/lieu days. I have spoken this previous week with Debalika from HR in regards to these issues and she didn’t seem aware of the situation or familiar with the terms of my contract…. I have left wondering if you have discussed or approached HR in regard to these matters.’[17]The claimant says he raised it verbally many times before that with Mr Ghosh and other managers, but he was afraid to make too much fuss because he did not yet have two years’ service which would protect him from unfair dismissal. Mr Messias could not remember the date when he first spoke to any manager about the hours and the letter does not read as if he had spoken to anyone else, other than HR in the previous week. It is possible that Mr Messias cannot remember now, but without any detail, I will assume the first time he raised the issue was in early November 2017.[18]On 4 December 2017, Mr Schultheis emailed Mr Messias to say that 40 hours was written in the contract of employment by mistake and that the offer letter said 42 hours. Mr Messias said he could not find the offer letter in his records. On 6 December 2017, Mr Messias was sent a copy of the offer letter.Conclusions
[19]I have to decide what was in fact agreed between Mr Messias and the Hotel. The offer letter, once signed, is a contractual agreement. It says 42 hours. The document entitled ‘contract of employment’ says 40 hours. They were both given to Mr Messias to sign at the same time. Clearly one of them is a mistake.[20]I think it is clear that the Hotel believed it had agreed 42 hours. The offer letter and the starter form both say 42 hours. Mr Messias was rostered on 42 hours from the start and throughout his employment. All other employees in his role were on 42 hour contracts. This also made mathematical sense, because four 12 hour shifts less one and a half hours unpaid breaks works out as 42 hours / week. Though on this point I accept that the Concierge department had a way of using time off in lieu to recoup the extra two hours / week. The only indication of 40 hours at all is in the ‘contract of employment’. That is the one which is out of line and it is clearly a mistake in the paperwork. I also note that far more detail of how the shifts worked was set out in the offer letter. That was where the Hotel had given the most careful attention to what was written down.[21]Of course legally, the question is not what the Hotel intended. The question is what was actually agreed. I believe that Mr Messias and the Hotel did agree that his contractual hours were 42 for the following reasons. First, as I have already said, I believe they did discuss and agree the hours when the telephone offer was made. Since I am sure the Hotel had 42 hours in mind, I believe that is what was discussed.[22]Second, Mr Messias must have found out somehow that his breaks were unpaid. This would either have been in a discussion or from glancing at the offer letter when he signed it, even if he cannot now remember doing that.[23]Third, Mr Messias worked 42 hours as a matter of routine rostering throughout his employment. There were no special arrangements for authorising overtime as required under the contract.[24]Fourth, as Mr Messias knew, his colleagues with the same job as him also worked 42 hours / week.[25]Fifth, Mr Messias did not query his hours until early November 2017, roughly three months after he started. This seems to have been prompted by finding out the Concierge department worked 40 hours / week and had time off in lieu to make that happen. This led him to look at his own contract. By this time, he would not accurately remember his initial discussions with the Hotel. He did not have a copy of the offer letter. What he had was a contract of employment which contained a mistake.[26]For these reasons I believe that Mr Messias’s contractual hours were 42. His pay for 42 hours/week was £22,000 as agreed. He was not underpaid and his claim fails.[27]As a final comment, I would like to say that I have considerable sympathy for Mr Messias. Although I have found his memory was inaccurate on certain points, I do not believe that was deliberate. This whole misunderstanding came about because the Hotel made a careless mistake in the documentation.