Mr A Koonjbeharee v Rowena House Ltd and Ms F Cader: 2300022/2024
JUDGMENT
The claims are dismissed in their entirety given the lack of any supporting evidence.REASONS
[1]These written reasons are provided at the request of the claimant following oral reasons given earlier today. As usual some editing has taken place for the sake of clarity, and here and there some points are expanded, so these written reasons shall stand as the final version.[2]By way of background, Mr Koonjbeharee worked for the company as a Team Leader at the respondent’s care home, Rowena House. Page 1 of 5[3]As stated in the headline judgement, this case came before us today with little or no supporting evidence and so we have considered how that situation came about. This is a claim which was brought on 1 March, 2024 against both Rowena House Ltd and against Mrs Cader, a director and owner of the company. The claim form explains that Mr Koonjbeharee was with the company for over four years, working very long hours. The actual number of hours is variously stated as 52, or 55 or 60 per week. It states that he was unfairly dismissed, suffered discrimination on grounds of age, race and sex, that he was entitled to a redundancy payments then various separate sums including notice pay, holiday pay and arrears of pay. There is also mention of periods of sick leave during the covid pandemic but the gist of the matter is that it was unfairly dismissed when the care home closed. The unfairness presumably relates to the procedure followed, which, it states, involved being dismissed by text, since it is also clear that everyone else works there was also dismissed at the same time.[4]The response form agrees that Mr Koonjbhearee was made redundant but it also says that he was recruited by his brother-in-law and worked the hours that he chose, also taking long periods of holiday, and in fact was absent from work from 21 July 2023 onwards before getting in touch again on 5 September 2023, after his employment had come to an end, to say that he was back in the country and ready to resume work.[5]The response also says that the last resident left the care home in October 2023 and the company went into voluntary liquidation, after a long period of attempts to fend off such a process, in November that year.[6]In our efforts to find documents relating to this case we were able to obtain the last CQC inspection report for Rowena House Ltd which shows that it was inadequate in all respects. The inspections were carried out in October 2022 but the report was not issued until March 2024, by which time the home had closed.[7]It also appears from the response that the owner was hoping that a new company would come in and take over the business, and Mr Koonjbeharee told us today that this eventually happened and that the care home is being run under this new management. However the new company has not been identified and no claim has been brought against them.[8]Following the exchange of those initial forms a case management hearing was arranged for 16 January 2025, when for one reason or another neither party attended. It appears that Mrs Cader was telephoned by a tribunal clerk and then put the telephone down when she heard what the call was about. The claim was allowed to continue the further preliminary hearing was rearranged for 7 April 2025 when further directions were given for a final hearing. Page 2 of 5[9]Employment Judge Beckett obtained some further information from Mr Koonjbeharee, who explained that he had in fact received a salary of about £30,000 a year given all the extra hours that he worked but that Mrs Cader had only declared that it was about half that amount to HMRC, or possibly to the Redundancy Payments Service. This seems to have been the main area of dispute and on that basis, because Mrs Cader had under-declared his salary, he is seeking the extra £15,000 or so per year, going back over the entirety of his employment. There seems no logical basis to that claim since he was, he tells us, earning at that level throughout and there was no shortfall in wages, save possibly in respect of occasional incentives which Mrs Cader promised but did not make good. Again, we have no way of quantifying that amount.[10]Directions were given for exchange of documents and witness statements. Clearly that may have left Mr Koonjbeharee in some uncertainty about what to do in the absence of any involvement from his former employer but the opportunity was there for him to assemble any documents related to these matters, just as he had done in relation to his claim to the Redundancy Payment Service, and either send them to the Tribunal or have them available for the hearing. Similarly, a witness statement setting out what he wanted to tell the Tribunal could have been provided. In the event, during the course of today, he provided a three-page statement from his former supervisor at the care home but this does not take as much further. It effectively confirms that he worked there, his role and dates of employment. In addition there are two payslips and a timesheet from late 2020, the significance which is unclear.[11]Turning to the factual claims, those of discrimination are entirely unclear. They are the only claims for which Mrs Cader could be personally liable. With regard to race discrimination, according to information the claim form Mrs Cader is of the same ethnic origin as Mr Koonjbeharee. No further information is provided, so again it is difficult to understand what the discrimination involves. It is not clear whether it is suggested that the dismissal itself was an act of discrimination that seems unlikely given that everyone left at the same time.[12]There is a complaint about having to work so frequently on Sunday which interfered with his Christian worship but there is no claim here of discrimination on grounds of religion. The basis of the complaints of age discrimination and sex discrimination are completely obscure.[13]We note that after the claim form was received a letter was sent by the Tribunal at the behest of Employment Judge Evans, asking Mr Koonjbeharee to identify the acts of discrimination question but no response has been received. Page 3 of 5[14]On the face of it there may well be a potentially valid claim for unfair dismissal but it is also clear that this was a redundancy situation which and there is a dispute between the parties as to whether or not Mr Koonjbeharee was even coming to work over the last month or two of his employment and so any failure of consultation may not have been on the part of his employer. In any event, the redundancy payment service operates a process to compensate for statutory redundancy payment and arrears of notice pay, wages, holiday and notice pay. We are not provided with any documentary evidence of that process of the amounts obtained, which Mr Koonjbeharee said were about £1400 or £1500. Clearly if there was a dispute in that process about the amount of work done, it does not follow that the Redundancy Payment Aervice would simply accept what the employer had to say. Mr Koonjbeharee would have had the opportunity to challenge the amount of hours and wages in question.[15]Equally we have not given any information about his efforts to find alternative employment or when his new employment began, so even if that claim were amplified with further evidence it is far from clear that any compensation is in fact due, putting to one side the difficulty of enforcement against a company in liquidation.[16]In all the circumstances it seems to us that the choice was between adjourning the hearing again, possibly following further efforts of case management to identify these various unlawful acts, or deciding it on the evidence presented. Any such further hearing would not be viable until at least another year. We have been able to see the statement of account provided by the liquidators online, from December 2024, which shows that there are still some amounts in dispute. They say that a further report be made within two months of the next anniversary, i.e. by January 2026. It is most unlikely that any further hearing could be arranged before then and so the overwhelming likelihood is that the company would have been dissolved by that point in time.[17]However, the practicalities and likely prospects of enforcement are not the decisive considerations. Any such decision has to be made in accordance with the overriding objective of dealing with cases justly and fairly. The respondent’s interests do not weigh at all in the balance given that they too have taken little or no part in these proceedings.[18]On the other hand the interests of other Tribunal users do have to be taken into account, given the pressure on the Tribunal system. There have already been two preliminary hearings, plus other efforts to identify the issues in this case and little or no work done on the part of Mr Koonjbeharee to explain and evidence the claims. There is, for each type of claim, a requirement to explain the nature of the claim and a burden on him to provide some supporting evidence. Indeed it seems to us Page 4 of 5 that in important respects he has misunderstood what he may be entitled to. No real explanation has been given for the failure to comply with those directions, save that Mr Koonjbeharee has been very busy dealing with his application for a visa. Overall, we are not satisfied that Mr Koonjbhearee can identify a valid claim here, and may simply be pursuing matters on the basis that he hopes that further sums may be due to him, but we cannot see that there are any.[19]In all the circumstances we do not accept that it would be in the interests of justice to adjourn the case again and on the basis of the evidence presented we have no alternative but to dismiss the claims.