Mr A O'Gorman v UK Cargo Logistics Ltd: 2403483/2022
JUDGMENT
The complaint of unfair dismissal is struck out.REASONS
[1]By a letter dated 21 June 2022 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the complaint of unfair dismissal should not be struck out because• Under section 108 of the Employment Rights Act 1996 claimants are not entitled to bring a complaint of unfair dismissal unless they were employed for two years or more except in certain specific circumstances which do not seem to apply in the claimant’s case.[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The complaint of unfair dismissal is therefore struck out.[3]The claimant’s remaining claim(s) remains listed for hearing on 24 October 2022 Employment Judge Holmes Date: 14 September 2022[1]The name of the Respondent is amended to UK Cargo Logistics Services Limited.[2]The Claimant’s claim for unlawful deductions from wages is well-founded and succeeds. The Respondent shall pay to the Claimant the sum of £4,661.40 gross.[3]The Claimant’s claim for breach of contract is well-founded and succeeds. The Respondent shall pay to the Claimant unpaid night allowances, unpaid meal allowances and unpaid expenses totalling £2,011 net.[4]The Respondent has failed to pay the Claimant’s holiday entitlement and shall pay to the Claimant the sum of £408 gross.[5]The Claimant’s application for a preparation time order is refused.[6]The total amount payable to the Claimant pursuant to paragraphs 2, 3 and 4 above is £7,080.40 and must be paid by the Respondent by 4pm on 14th November 2022. Case No: 2403483/2022[1]This matter was listed for a video hearing following the striking-out of the claim for unfair dismissal but with directions having been given for the remaining claims to be heard. There has been no response from the Respondent throughout the proceedings and, as such, only the Claimant attended the hearing.[2]I noted from the papers that the name of the Respondent thus far has been UK Cargo Logistics Limited; however, a Companies House search suggests that the correct name is UK Cargo Logistics Services Limited. UK Cargo Logistics Services Limited has the same correspondence address as that provided in the ET1 claim form and the sole director is named as David Gallagher. The Claimant confirmed that this was, to his knowledge, the address of his employer and that Mr Gallagher was the person with whom he dealt on a day-to-day basis. As such, I granted the Claimant’s application to amend the name of the Respondent to UK Cargo Logistics Services Limited.[3]Given the absence of the Respondent, I considered the application of Rule 21 of the Tribunal Rules. I was satisfied that, in the circumstances outlined above, despite the need for a typographical amendment of the Respondent’s name, the Respondent was, on the balance of probabilities, likely to have been aware of the claim as the correspondence address of UK Cargo Logistics Services Limited is the same as that provided in the ET1 claim form and the contact name is that of Mr Gallagher. I noted especially that a letter dated 3rd August 2022 was sent to UK Cargo Logistics Limited at the correspondence address notifying them that, as no response had been received, a Rule 21 judgment may be made in due course. I was therefore satisfied that it was in accordance with the Overriding Objective to proceed in the Respondent’s absence.[4]The Claimant confirmed that he had provided the Tribunal with both an electronic bundle and a paper bundle, both of which I had before me. The electronic bundle contained various documents and appears to have been provided pursuant to the direction of Employment Judge Holmes dated 13th September 2022. The Claimant also confirmed that the paper bundle was hand-delivered to the Tribunal last week. The most relevant documents in the paper bundle were:a. the Claimant’s covering letter dated 19th September 2022; Case No: 2403483/2022b. a table of the sums claimed with a breakdown of what had been paid to the Claimant and what, on his case, remains outstanding;c. a copy of the Claimant’s work diary from 17th January to 25th March 2022 inclusive;d. a copy of one payslip dated 28th January 2022; ande. a copy of the Claimant’s bank statement covering 3rd January to 1st April 2022 inclusive.[5]The Claimant took the affirmation and confirmed that he understood that he was giving all further evidence in that context. He confirmed the truth and accuracy of the documents listed at paragraph 4 above and confirmed that he wished to rely upon them as his evidence. I took the Claimant through these documents and he explained how the evidence was said to support his claim. I was satisfied on the balance of probabilities that the totality of this documentation supported the claims made for unpaid wages, unpaid holiday pay, unpaid night allowances, unpaid meal allowances and unpaid expenses.[6]The claims for night allowances, meal allowances and expenses were allowed on the basis that, in the absence of any evidence to counter the Claimant’s assertions under affirmation that the Respondent had agreed to pay an allowance of £25 per night spent away from home, a meal allowance of £12 per day and relevant expenses such as parking, there was such a contractual agreement. I also found that, as the Claimant set out in his oral and written evidence, none of the relevant allowances or expenses had been paid by the Respondent in breach of that contract. I allowed the claims for unpaid wages and holiday pay (pursuant to Section 13 of the Employment Rights Act 1996) on the basis of the Claimant’s uncontroverted evidence that his agreed hourly rate was £17 and that he had worked the hours set out. I therefore awarded the sums outlined in the body of the judgment.[7]The Claimant made an application for a preparation time order. He confirmed that the sole basis for this application was the Respondent’s apparent failure to respond to the claim at all or to take any part whatsoever in the proceedings. I was not satisfied that this was sufficient to meet the test set out at Rule 76 of the Tribunal Rules and therefore refused the application. Case No: 2403483/2022