Ms S J Finlayson Sitch v Cheyne18 Ltd: 2202490/2018
JUDGMENT
[1]The respondent made deductions from the wages due to the claimant.[2]The respondent is ordered to pay to the claimant £4,166.67.[3]The respondent is ordered to pay to the claimant £3,076.96 in respect of holiday accrued but not taken by the date she left the employment of the respondent.[4]For the avoidance of doubt these 2 sums add up to £7,243.63.REASONS
[1]The respondent wrote to the Tribunal by email, below: “Re: 2202490/18 Finlay-Sitch v Cheyne 18 Ltd SK Sam Kirkwood <samkirkwood18@hotmail.com> Reply all Tue 27/11, 15:57 BRISTOLET <bristolet@Justice.gov.uk>; susanfs@btinternet.com Dear Sir/Madam, Apologies, I thought I had replied. We will not be attending court on Friday. To reiterate, the company has creased trading, is insolvent, has no bank accounts, no assets and is set to be struck off the register.” (sic) I decided to proceed in the absence of the respondent. The claimant was sworn and adopted her witness statement and gave oral evidence. I accept her evidence as truthful.[2]The claimant was managing director of the respondent. Her salary was £50,000 a year, paid monthly.[3]The major shareholder of the company Sam Kirkwood failed to pay the claimant for October 2017. When she asked for payment he said that he was investigating gross misconduct but without saying what was being investigated. He has never given any idea (not even in the response to the claim) of what was said to be misconduct, and I find there was none. This was a fabrication.[4]On 01 November 2017 Mr Kirkwood wrote to the claimant to say that he was considering making her redundant, and requiring her to have a telephone conversation about this the next day. During that call, on 02 November 2017, he gave the claimant notice of termination of employment at the end of November 2017, which the claimant was to work.[5]Mr Kirkwood then subjected the claimant to bullying and harassment to the extent that on 07 November 2017 she was signed off sick by her GP with stress anxiety and depression, her sick note being sent in on 08 November 2017.[6]The harassment did not abate but worsened, and on 16 November 2017 the claimant resigned by email for that reason.[7]Subsequently the claimant was paid the salary due for October 2017. The claimant has not been paid for November 2016.[9]The claimant had accrued 16 days holiday entitlement when she left, and has not been paid for it.[10]The claimant was initially given 1 month’s notice to expire at the end of November 2017, and then on 16 November 2017 was unfairly constructively dismissed by the respondent. She is entitled to notice pay for November 2018.[11]The respondent has subsequently paid to the claimant the salary she was due for October 2017.[12]The monthly salary due for November 2017 is 1/12 of £50,000, which is £4,166.67.[13]The holiday pay due to the claimant is £50,000 divided by 12, divided by 5 (as the claimant worked 5 days a week), and multiplied by the 16 days accrued entitlement, which totals £3,076.96.[14]I order the respondent to pay to the claimant these 2 sums, which total £7,243.63.[1]The claimant has applied for a reconsideration of the reserved judgment dated 30 November 2018 which was sent to the parties on 11 December 2018 (“the Judgment”). The grounds are set out in their letter dated 21 December 2018. That letter was received at the Tribunal office on that date because it was emailed in.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[3]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[4]The grounds put forward by the claimant are that:a. They apologised for not attending, but could not know that the claimant would mislead the Tribunal;b. They had evidence to prove that the claimant was not unfairly constructively dismissed.c. They had new evidence they wished to put before the Tribunal. They attached some of it, including witness statements from a director of the respondent, a colleague of the claimant and a human resources consultant.[5]There was no claim of unfair dismissal. The issue of unfair (or wrongful) dismissal arises only by reason of the claim for notice pay. This is apparent from the claim form (box 8.2), and in a detailed letter from the representative of the claimant (Swann Turton LLP) dated 06 December 2017 to Sam Kirkwood of the respondent. The claim form clearly stated that the claimant asserted that she had been the victim of a fabricated claim of misconduct to evade paying notice pay. The letter from her lawyer stated: “During our client’s employment, she has been subjected to unwanted conduct which has had the purpose or effect of violating her dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment. She has further been falsely accused of misconduct, in a misguided attempt to avoid paying our client the sums due to her. This has caused our client severe anxiety and as such, she has been signed off work and prescribed anti-anxiety medication. Mr Kirkwood’s conduct was so distressing and given the numerous breaches of the Employment Contract by the company, our client was left with no option but to formally resign on 16 November 2017 (“the Termination Date”); 14 days before the previously agreed date of her dismissal. Given the significant breaches of the Employment Contract and the bullying and harassment that our client has endured, she is entitled to payment in lieu of one month’s notice in accordance with the Employment Contract.”[6]Accordingly the respondent was on notice as to the matters put forward by the claimant, and why. It was the same Sam Kirkwood, to whom that letter was written who completed the response, stating that the claimant had resigned without giving notice.[7]One witness statement provided with the application for reconsideration states: “Abigail Kirkwood. I am a barrister and was a Director of Cheyne 18. I am also married to Sam Kirkwood, the Director of Cheyne 18.” There is no difficulty, then, of not seeking advice.[8]The respondent emailed the Tribunal before the hearing indicating in no uncertain terms that the respondent would not be attending the hearing.[9]The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/60 the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. This is not the case here. In addition it is in the public interest that there should be finality in litigation, and the interests of justice apply to both sides.[10]The respondent does not like the findings of fact made at a hearing which it chose not to attend, it being clear beforehand what issues were to be determined and precisely what allegations the claimant was making. That is not a good reason to seek a reconsideration.[11]Accordingly I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked. ………………………………..