Mr S Zaltieri v Southern Street Ltd: 2206687/2018
JUDGMENT
The Respondent is ordered to pay the Claimant the following sums and subject to clause 2 below.(a) £340 representing a net underpayment of wages for May, June and July 2018(b) £1,586.44 representing net monies due for August 2018(c) £714 representing non net payment of accrued holiday amounting to 10 days net pay A total of £2,640.44 with the Respondent accounting to the Revenue for any and all tax under PAYE and NI due as set out in the Reasons and Findings below.REASONS
[1]The Claimant was employed by the Respondent working as a sous chef in its Southern Street restaurant from 20 February 2018 to 3 September 2018. He resigned on 20 August 2018 giving two weeks notice as per his contract of employment but claims an underpayment of salary in respect of May, June and July 2018 and that he was not paid at all in August 2018 and for 1 and 2 September. He is also owed eleven days holiday.[2]The Claimant gave evidence as to his claims and provided documentation in particular to support his unauthorised deduction from wages claims. The Respondent did not appear and an issue arose as to service. The Respondent traded from 36 Golborne Road, London W10 5PR which is the address the Claimant used on his ET1 lodged on 18 November 2018. However, at some point the Respondent ceased trading from that address. Its registered office from March 2018 has been Regina House, 124 Finchley Road, London NW3 5JS. In addition, it is unclear whether the restaurant 108 Garage (also in Golborne Road W10) is owned by the Respondent or not. I mention this as Southern Street was the follow up restaurant to 108 Garage and appeared to have the same owners. But in any event Southern Street is now permanently closed according to its website whilst 108 Garage continues to operate.[3]I find that the Claimant was employed by the Respondent and entitled to a pay increase under his contract from £26,000 to £28,000 as of 1 May 2018. I find having seen his payslips that he was not paid such increase and accept he was not paid for August. His resignation letter is clear and sent by e-mail to Ivan Betteli Project Manager of Silvia Cebernik Jasiak, accountant. Although the Respondent’s restaurant at Southern Street closed from 10 August to 5 September (partly prompting the Claimant’s resignation) the Respondent was not entitled to stop the Claimant’s pay and as the Claimant was prepared to work out his notice the Respondent should have continued to pay him during August (pro rata) based on £28,000 per annum. September 1 and 2 was a weekend and he would not normally have worked then. Finally, as to his claims I accept his undisputed evidence that he did not have any holidays in the six months he worked there and that he is therefore entitled to ten days pay by way of accrued holiday payment. He was not required to work after 20 August and so further holiday pay does not accrue after that date.[4]Although the Respondent was not served at its registered office (it now is) I cannot accept that it did not receive the Claimant’s claims either at the time of posting or being forwarded on. If my belief is incorrect then the Respondent is invited to seek a reconsideration of the judgment under Rule 71 of the ET (Constitution of Rules of Procedure) Regulation 2013 giving written reasons for any application together with supporting documents if any. Subject to that and having heard the Claimant’s evidence the judgment stands. In addition, as the Respondent’s defence to the claims being made seems to have no reasonable prospect of success, if this case does come back for a rehearing the Respondent is warned as to a possible costs order against it and or its advisers under reference by Rules 74-80 of the ET Rules if it is then found there is indeed no arguable case to the claimed unauthorised deduction of wage/holiday and notice pay claims.[5]The Claimant’s loss is calculated as follows Claim Gross Net A Salary due for May, June, July 2018 at £500 £340 £166.66 (underpayment) per month B Non payment August 2018 (to include notice £2,333 £1,586.44 period from 20 August 2018) C Non payment of holiday accrued10 days 20 £1,050 £714 February 2018 to 20 August 2018 based on salary of 26,000, 260 day working year from 20 February 2018 to 1 June 2018 and £28,000 for 1 June to 20 August 2018. TOTAL £3,883.00 £2,640.44 The net sum is calculated by deducting tax at the basic rate of 20% and National Insurance at 12%.[6]If the Respondent company is or may be insolvent the Claimant may be able to recover monies from the National Insurance Fund hhtps://www.gov.uk/your-rights-if-your-employer-is-insolvent _