Mr S Karpovich v Kisiel Ltd: 2306007/2021
JUDGMENT
[1]This claim was issued in the Employment Tribunals (London South) by the Claimant on 22 December 2021. The claim comprises headings of unfair dismissal, breach of contract and claims for holiday pay and unpaid wages/unlawful deductions from wages.[2]By letter dated 13 January 2022, the Tribunal gave the Respondent notice of this claim and directed them to respond - if they wished to defend the claim - by 11 February 2022.[3]By letter of 27 June 2022, the Tribunal warned the Respondent that because a response had not been received, a judgment could now be issued against them and they would be unable to participate in any hearing save to the extent granted by the presiding Judge.[4]On 4 July 2022, the Respondent’s representatives contacted the Tribunal (not copied to the Claimant) to apply for an extension of time, under rule 20, to file their response and for any default judgment to be set aside under rule 20(4). They explained that the Respondent, whilst in receipt of the letters of 27 June 2022, had not received any prior correspondence in respect of this claim.[5]On 5 August 2022, the Tribunal wrote to the Respondent confirming that an extension of time had been agreed by a Judge. They were given until 2 September 2022 to file their response to the claim.[6]By further email from the Respondents representatives, 16:44 2 September 2022 (again not copied to the Claimant), the Respondent seeks a further 7 day extension for submission of their response. They state that it is in the interests of justice and that the Respondent has an arguable defence, that liability is contested, that the Claimant would benefit from a windfall if there is no response and that such an extension is in accordance with the Tribunal being flexible in its approach (per rule 2(c) of the Rules of Procedure).[7]I find it interesting that the Respondent, in making their further application for an extension of time, seeks to rely on rule 2(c) and the avoidance of unnecessary formailty and seeking flexibility. This is a case where, on any reading, the Respondent has had since January 2022 to file their response. Even accepting that they might not have received correspondence prior to the letter of 27 June 2022 (despite all correspondence being sent to the same address in Sandiford Road, Sutton), they have now had a further period of time to prepare a response and have not capitalised upon it. 2306007-2021 Mr Siarhei Karpovich -v- Kisiel Limited: 08-09-2022 Judgment Page 1 of 2[8]It is unacceptable - moreso where, as here, the Respondent is professionally represented - for any party to simply presume that the Tribunal will routinely accede to requests to extend time. Flexiblily is one thing, this is something entirely other.[9]The Respondent’s application for an extension of time is refused. There having been no valid response received in time in accordance with rule 16, despite a generous extension of time granted previously, I have to consider whether there is sufficient material/evidence upon which I could fairly decide the claims under rule 21(2)[10]The Claimant has, in response to a letter sent to him (also on 27 June 2022 a copy which the Respondent acknowledges receiving), provided a detailed schedule of loss dated 27 June 2022. I am satsified that this appears to be reasonable and properly calculated save that he has claimed for 2 years unpaid holiday when the maximum he could properly claim would be 1 year.[11]RULE 21 JUDGMENT I am satisfied, in the circumstances, that there is sufficient evidence upon which I can dispose of this claim.[12]All claims made by the Claimant succeed. The Respondent shall pay to the Claimant the sum of £23,238.49 forthwith.[13]Breakdown (£) Basic award: 1,088.00 Compensatory (immediate loss): 4,731.46 Compensatory (future loss): 5,883.28 Loss of statutory rights: 350.00 ACAS code uplift (25%): 2,741.19 Unpaid wages: 3,724.82 Unpaid holiday (1 year): 2,406.82 Document failures: 2,312.92 Judge M Aspinall on Thursday, 8th September 2022 2306007-2021 Mr Siarhei Karpovich -v- Kisiel Limited: 08-09-2022 Judgment Page 2 of 2 Reference number(s) 2306007-2021 EMPLOYMENT TRIBUNALS London South Employment Tribunal on 7th October 2022 Claimant Between Respondent Mr Siarhei Karpovich & Kisiel Limited Before Appearances Judge M Aspinall (Sitting as an Employment Judge) None - interlocutory APPLICATION FOR RECONSIDERATION Judgment[1]By an application received, via email, at 14:08 23 September 2022 the Respondent has applied for reconsideration of my judgment in this claim.[2]My primary judgment was entered on 8 September 2022 and issued to the parties on 22 September 2022. I allowed the claim pursuant to Rule 21 of the Employment Tribunals Rules of Procedure and ordered payment of appropriate sums to the Claimant.[3]The Respondent provided, with their application, a copy of an email sent to the Tribunal on 2 September 2022 which provided their response to the claims made by the Claimant. 2 September 2022 was the deadline for their submission of a response.[4]Unfortunately, that submission was not before me on 8 September when I made my decision under Rule 21 which disposed of the claim.[5]In fact, the Respondent had complied with their obligation to provide their response by 2 September 2022. It is unfortunate that they did so at the last minute and that this meant that it had not been processed by the Tribunal by the time the claim came before me 6 days later.[6]In the circumstances, it would clearly be an affront to justice if the claim were to be summarily decided against the Respondent when they had - in fact - complied with the deadline (which had been extended already) to submit their response. It was, as I have said, somewhat at the last minute, but it was within the deadline.[7]For those reasons, I do reconsider my decision made on 8 September 2022. It is not appropriate to make a Rule 21 finding in these circumstances, so I revoke my previous decision. The claim will continue, and the Tribunal will issue standard case management orders for its progress to a final hearing. Judge M Aspinall on Friday, 7th October 2022 2306007-2021 Mr Siarhei Karpovich -v- Kisiel Limited: 08-09-2022 Judgment Page 1 of 2 2306007-2021 Mr Siarhei Karpovich -v- Kisiel Limited: 08-09-2022 Judgment Page 2 of 2