Mrs S Hong v Selected Property Ltd and Collect Investments Ltd: 2401488/2023
EMPLOYMENT TRIBUNALS
Case No 2401488/2023
Between
Mrs S HongClaimant1.Selected Property Limited 2 Collect Investments Limited RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge ShotterIn person for claimantDate 21 August 2023
JUDGMENT
[1]The judgment of the Tribunal is:(1) The claimant’s unlawful deduction of wages claim is well founded and the respondent is ordered to pay the claimant unpaid salary totalling £2245.55 net.(2) The claimant’s wrongful dismissal claim is well-founded and the respondent is ordered to pay damages in the sum of £1495.89 net for breach of contract 4 weeks’ contractual notice pay.(3) The claimant was paid the minimum wage and her claim that she was not is dismissed on withdrawal.(4) The respondent was in breach of contract by failing to pay to the claimant her contractual entitled to sick pay and is ordered to pay to the claimant the sum of £2683.80 net. This figure does not include statutory sick pay which has been resolved.(5) The claimant was entitled to be paid accrued holiday pay, and her claim is well founded. The respondent is ordered to pay to the claimant outstanding holiday pay in the sum of £1467.12 net. 1 of 4(6) The claimant was contractually entitled to be repaid by the respondent salary deducted from her for immigration costs and the respondent is ordered to pay to the claimant the sum of £922.20. 21.8.23[3]The judgment of the Tribunal is that the respondent’s application for a reconsideration is dismissed.
REASONS
[1]This is a reconsideration application made on behalf of the respondent, who has not attended the hearing. No explanation has been given and it is clear from the Tribunal file that the case management orders agreed with the claimant and Mr F Lau, sales director supported by IT director CY Yung have not been complied with. This is the second attempt at a reconsideration hearing and I refer to the Summary of the Preliminary Hearing and Case Management Orders agreed at the 5 December 2023 reconsideration hearing.[2]The parties were to attend today’s hearing, the date was also agreed with them at the last reconsideration hearing. The Tribunal rang the claimant this morning and received no response until 11.30am stating she was unaware there was a hearing and confirming she had provided bundles. On checking the file it appears the bundles have not been received, and the case management order provided for the respondent to provide the agreed bundle (see below). It has failed to do so. Contact was made with the respondent concerning its non-attendance this morning. The respondent has taken it upon itself via the insolvency practitioner PHCM Order 1 of 6 Expedium, to invite the Tribunal to take into account the witness statement of Alan Simon dated 16 October 2023 which was considered at the 5 December 2023 reconsideration hearing before the case management orders were agreed. The parties were also ordered to confirm by no later than 2 May 2024 that all case management orders agreed on the 5 December 2023 had been complied with and the case was ready for today’s hearing. No such confirmation was received and case management orders remain outstanding. The parties had not followed earlier case management orders and the position remains that there is no agreed bundle. At the last hearing it was noted the respondent provided one witness statement from Alan Simon dated 16 October 2023, and that Mr Lau may also wish to give evidence under oath, for example, dealing with the information that the respondent does not employ people from oversees, it has no sponsorship license or visa agreements issued through the Home Office with any employees including the claimant which appeared to one of the respondent’s main arguments as to why it was not the claimant’s employer.[3]It was also noted that the problem in this case was and remains the lack of clarity concerning the employment contract signed only by the claimant, which the respondent maintains cannot be correct as it did not agree to employ the claimant and had no part in her employment. It appears that Mr John Wu who died in March 2023 is the key. He was managing director of the respondent and sole director of Selected Property Limited, also in liquidation. The claimant relies on an exchange of emails with Mr John Wu to the effect that in his emails he refers to Collect Property group when on the face of it the claimant was emailed the employment contract which she alone signed and relies on as evidence that the respondent and not Selected Properties Limited employed her. This evidence was accepted by me at the time oral judgment was given in favour of the claimant with reasons on the 13 June 2023 with Judgment only sent to the parties on 16 June 2023, and on 4 August 2023, with the Judgment only sent to the parties on 5 September 2023.[4]The respondent has produced evidence from HMRC confirming Selected Properties Limited paid SSP to the claimant and employed her. The claimant confirmed that she will be giving evidence to the effect that as soon as she received HMRC correspondence to this effect she made contact and explained that her employer was the respondent, which HMRC were investigating as of December 2023. I have not been provided with any information concerning that investigation and Alan Simon’s witness statement does not deal with this point.[5]At the last reconsideration hearing both parties agreed that the key documents in this case which may resolve the issue of the correct respondent is the sponsorship licence, the claimant’s visa, certificate of sponsorship and Home Office confirmation that the respondent has no sponsorship licence, did not sponsor the claimant or pay for her skilled visa application, which the claimant states she was made to repay. It was agreed that once both parties have obtained all of this information, which they will copy to each other, and take a realistic view of this litigation will take place taking into account the overriding objective, the fact that both respondents are in liquidation and the unlikely event of the claimant being able to enforce any money judgment against either. This information has not been provided to me despite the case management orders that were agreed as follows which have not been complied with. In short, the position remains exactly as it did PHCM Order 2 of 6 at the last reconsideration hearing and as this is the respondent’s application it has not persuaded me that I should set aside the judgments of 13 June and 4 August 2023:[1]By 31 January 2024 the parties will exchange lists of documents and the respondent must send the claimant copies of all documents relevant to the issues including information from HMRC and the Home Office. There is no evidence that this has been done.[2]By 31 January 2024 the claimant must send the respondent copies of any other documents relevant to the issue of who the correct employer is including information from HMRC and the Home Office. There is no evidence that this has been done.[3]By 28 February 2024, the claimant and the respondent must agree which documents are going to be used at the hearing and have obtained the necessary information from the Home Office and HMRC. There is no evidence that this has been done.[4]The respondent must prepare a file of those documents with an index and page numbers. They must send an electronic and hard copy to the claimant by 16 March 2024. The respondent/claimant] must bring three more copies of the file to the hearing for the Tribunal to use by 9.30 am on the first morning together with electronic copies. This has not been done.[5]The claimant and the respondent must prepare witness statements for use at the reconsideration hearing. Everybody who is going to be a witness at the hearing, including the claimant, needs a witness statement. There may be three witnesses, one for the claimant, two for the respondent. There is no evidence that this has been done.[6]A witness statement is a document containing everything relevant the witness can tell the Tribunal. Witnesses will not be allowed to add to their statements unless the Tribunal agrees.[7]Witness statements should be typed. They must have paragraph numbers and page numbers. They must set out events, usually in the order they happened and will be limited to dealing with the issue of which company was the claimant’s employer. If the witness statement refers to a document in the file it should give the page number. This has not been done.[8]At the hearing, the Tribunal will read the witness statements. Witnesses may be asked questions about their statements by the other side and the Tribunal.[9]The claimant and the respondent must send each other copies of all their witness statements by 6 April 2024. There is no evidence that this has been done.[10]The claimant and the respondent must both bring copies of all the witness statements to the hearing for their own use. This has not been done. PHCM Order 3 of 6[11]The respondent must bring four more copies of the witness statements to the hearing for the Tribunal to use by 9.30 am on the first morning. This has not been done.[12]No later than the 30 April 2024 the claimant and respondent will set out their arguments in respect of this reconsideration in written submissions limited to the issue to be decided. The claimant will not produce pages of information as she has done in the past, and she will limit her witness statement and written submissions to the one issue, which is the correct respondent/employer in this case. This has not been done.[13]The claimant and respondent will send a joint letter to the Tribunal attaching the agreed preliminary hearing bundle, witness statements and written submissions no later than 1 May 2024 and marked for the urgent attention of EJ Shotter. This has not been done.[14]The respondent must provide to the Tribunal electronic pdf copies of the agreed hearing file and witness statements no later than 1 May 2024. This has not been done. Law 6. Rules 70–73 of the Employment Tribunals Rules of Procedure (‘the Tribunal Rules’), contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 SI 2013/1237 (‘the Tribunal Regulations’), set out the procedure for tribunals to ‘reconsider’ judgments. 7. A tribunal dealing with the question of reconsideration should be guided by the common law principles of natural justice and fairness and must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ — rule 2 including; ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues; and saving expense. Interests of justice as a ground for reconsideration relate to the interests of justice to both sides. In Redding v EMI Leisure Ltd EAT 262/81 the claimant argued that it was in the interests of justice to do so because she had not understood the case against her and had failed to do herself justice when presenting her claim. The EAT observed that: ‘When you boil down what is said on [the claimant’s] behalf, it really comes down to this: that she did not do herself justice at the hearing, so justice requires that there should be a second hearing so that she may. Now, justice means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in the situation.’ 8. Under Rule 70 of the Employment Tribunal Rules a judgement can be reconsidered where it is necessary in the interests of justice to do. There is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation and reconsiderations are a limited exception to the general rule that judgements should not be reopened and relitigated. It is not a method by which a disappointed party to proceedings can get a second bite of the PHCM Order 4 of 6 cherry. In Stevenson v Golden Wonder Ltd 1977 IRLR 474, EAT, Lord McDonald said review provisions that they were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’. I take the view that the respondent has had a number of “bites of the cherry.” It has failed to appear today and provide persuasive evidence sufficient for me to reopen this litigation. 9. In AIC Ltd v The Federal Airports Authority of Nigeria [2020] EWCA Civ 1585 the Court of Appeal provided guidance on the correct approach the courts should take when determining an application to reconsider. Coulson LJ held that there were two distinct questions which the court must ask itself. The first was whether the application to reconsider should be entertained in principle; if the court answered the question in the negative, that was the end of the matter. Coulson LJ provided further guidance on first question when he said: ‘In my view, the court should be looking for a sufficiently compelling reason that may justify reconsideration; something which might outweigh the importance of finality and justify the opening up of a question or questions which, following the pronouncement of the order in open court, appeared to have been finally answered…the court should instinctively be looking for something which has been missed or otherwise gone awry: a mistake or a fundamental misapprehension; a fundamental piece of evidence or a point of law that was overlooked. The court’s undoubted jurisdiction to reconsider its earlier order cannot be permitted to become a gateway for a second round of wide-ranging debate.’ I took the view that the respondent’s application to reconsider should be entertained in principle, and yet the respondent has failed to follow this up despite being given a number of opportunities to do so, and comply with agreed case management orders. 10. When considering an application to reconsider, the courts need to ensure that their jurisdiction must, as Coulson LJ put it, be ‘carefully patrolled’ so that the principle of finality in litigation is not undermined. By failing to prepare its application, comply with case management orders and appear today, the respondent has not provided a sufficiently compelling reason to justify taking their application for a reconsideration any further and setting aside the judgments referred to above. Litigation requires finality. It is not in the interests of justice for the Tribunal to list this matter for yet another reconsideration hearing and the respondent’s application for a reconsideration is dismissed on the basis that as matters stand at the present, there is no reasonable prospect of the original decision being varied or revoked.