Mr H Teimouri and Mr E Adeyemi v O'Carroll Civil Engineering Ltd: 2410975/2021 and 2408556/2021
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.[1]The claims were issued in the Manchester Employment Tribunals on 23 July 2021 (1st Claimant) and 8 September 2021 (2nd Claimant). The Respondent has failed to present a valid response (on time or at all). The Tribunal Judge has decided that a determination can properly be made of the claims in accordance with rule 21 of the Rules of Procedure.[2]The Respondent entirely failed to pay the 1st Claimant and has made unauthorised deductions from the 2nd Claimant’’ wages and therefore must pay: i. The 1st Claimant £1,550 (gross); and ii. The 2nd Claimant £2,310 (gross).[3]The claims made by the Claimants against Respondent have been linked by the Tribunal and dealt with at the same time because they involve very similar facts. Each Claimant bring claims for unauthorised deduction of wages in respect of their respective employments with the Respondent.[4]The respondent has failed to respond to the Claims. The Chronology of the proceedings is: CHRONOLOGY 12 April 2021 Mr Adeyemi’s employment commenced 16 April 2021 Mr Adeyemi’s employment ended 25 May 2021 ACAS received Mr Adeyemi’s request (ACAS ref: R141260/21/33) 27 June 2021 ACAS received Mr Teimouri’s request (ACAS ref: R150664/21/78 6 July 2021 ACAS certificate in Mr Adeyemi’s claim 23 July 2021 Mr Adeyemi’s ET1 claim form (noting that it was in the name of Samuel David O’Carrol1) 8 August 2021 ACAS certificate in Mr Teimouri’s claim 8 September 2021 Mr Teimouri’s ET1 claim form (noting that it was in the name of Samuel David O’Carroll) 7 October 2021 Notice of claim addressed to both Mr Samuel David O’Carroll personally and also O’Carroll Civil Engineering Limited at an address in Hyde. 14 December 2021 A no response letter Mr Teimouri’s claim issue against O’Carroll Civil Engineering Limited c/o Mr Samuel David O’Carroll at an address in Manchester (M30) warning that a Judgement may be issued due to the lack of response. 15 December 2021 Mr Teimouri’s claim for unfair dismissal struck out by EJ Cookson (because he did not have the requisite 2 years employment history with the Respondent). Nonetheless the other claim was allowed to proceed.[5]The Respondent has not filed an ET3 form, nor communicated with the Tribunal in any way at all.[6]Before hearing the case on 9 February 2022, I checked the Court files for each case and noted that in relation to both cases, the Tribunal had communicated with the Respondent at various business and domestic addresses connected to his role as a director of O’Carroll Engineering Limited, as well as in his private capacity[7]My first decision, therefore, was whether the case could proceed under rule 21 of The Employment Tribunal Rules of Procedure 2013 (as Amended)(see Appendix 1 at the end of this Judgement). In the light of the lack of response from the Respondent, I decided that the cases should both proceed under rule 21(2).[8]Having decided that the Claims should, proceed, I had to decide the following key questions:a. Was the claim presented in time?b. Was each claimant a worker?c. Is each claim in respect of wages?d. Has the employer made a deduction in relation to each claim?e. Was the deduction authorised?f. Was it an exempt deduction?g. Does the two-year restriction apply?h. Is there any financial loss attributable to the non-payment[9]In making my decisions on each claim, I also bore in mind of the legal framework which included: S13 of the Employment Rights Act 1996 (“ERA”) (the right not to suffer unauthorised deductions); the meaning of “wages” at S27 of the ERA 1996 and the definition of employees and workers etc at S230 of the ERA 1996.[10]I heard evidence from the Claimants via video-link facilitated by the Tribunal’s virtual platform, having been provided with a file of papers on each case. The documents submitted in advance of the hearing were scant and simply consisted of the ET1 claim form for each Claimant. As noted above, the Respondent had not responded to the claims in any way, including by filing an ET3, communicating regarding the hearing fixed for 9 February 2022, nor otherwise engaged in this process. In particular, I checked the Court files and also had conversations with the Tribunal administration staff who confirmed that the Tribunal has not received any phone calls or emails from the Respondent, including any communication requesting a postponement of the case. The lack of response from the Respondent meant that there were no court bundles/files of evidence.[11]I find that neither Claimant had a written contract with the Respondent, rather the agreements between the Respondent and each Claimant were based on oral agreements. I am satisfied that both Claimants knew the role that they were required to fulfil, the work that they had to complete, and the agreed weekly rate of payment. I find that they fulfilled their work obligations and that the claimed payments remained outstanding.[12]Mr Adeyemi describes himself as a “freelance engineer”. Mr Adeyemi’s case is that he worked for the Respondent for a week 12 to 16 April 2021. He was engaged as a site engineer to work 50 hours a week. The Respondent agreed to pay Mr Adeyemi £1,550 a week gross (which the Claimant believes would have been around £1,240 net). The agreement was that Respondent was supposed to pay the Claimant on a weekly basis once the week’s work had been completed. Thankfully, when the Respondent refused to pay Mr Adeyemi at the end of his first week, Mr Adeyemi was able to secure other employment with another employer on 21 April 2021.[13]The week’s work that Mr Adeyemi completed was at TSL construction site in Luton. He emphasized to me that, in performing his unpaid week’s work, this caused him the inconvenience of travelling from Wolverhampton to Luton every day. I also noted that he claims that he was unable to pay certain bills on account of not being paid his wage for the week in April under review. However, he has never provided any details or interest or bank charges or the like that he has suffered as a result of the non-payment of wages. I therefore did not make an award in relation to this element.[14]At the hearing Mr Adeyemi confirmed that the Respondent had never paid him anything and so £1,550 (gross) remains outstanding. Given the unchallenged evidence and the fact that Mr Teimouri’s evidence of his experience (see below) essentially corroborated Mr Adyemi’s experience, I concluded that Mr Adeymi had presented his claim in time, had fulfilled his obligations to try to use ACAS to conciliate the claim (as well as having tried to contact the Respondent informally to try to get him to pay up) and I decided that the Respondent must pay Mr Adeyemi £1,550.[15]The outstanding figure claimed by Mr Teimouri was £2,310. He explained that he was engaged as a Site Engineer and due to be paid £1,680 a week by the Respondent and was supposed to be paid weekly. I accept the unchallenged evidence that Mr Teimouri had initially been put into contact with the Respondent through Mr Jarrod Holmes on 9 March 2021 and that Mr Teimouri completed his work engagement with the Respondent at the Fortel site between 9 March and 7 April 2021. I am also satisfied that Mr Teimouri had to badger the Respondent for his pay, and that he was paid for the first 9 days of work that he completed. Nonetheless, Mr Teimouri worked for a further 11 days thereafter but the Respondent failed to pay him and then ignored his communications when Mr Teimouri chased him. Thankfully, Mr Teimouri also found alterative work, on 10 April 2021. The pay owed by the Respondent for the remaining days is what was outstanding as of the date that Mr Teimouri submitted his ET1 claim. I was satisfied by his unchallenged evidence that the £2,310 claim remained outstanding as of the date of the hearing before me.[16]Given the unchallenged evidence, the fact that Mr Teimouri’s evidence of his experience is essentially corroborated Mr Adyemi’s experience (set out above), I concluded that Mr Teimouri had presented his claim in time, had fulfilled his obligations to try to use ACAS to conciliate the claim (as well as having tried to contact the Respondent informally to try to get him to pay up) and I decided that the Respondent must pay Mr Teimouri the claimed £2,310. Decision (Communicated to the Claimants at the hearing on 9 February 2022)[17]The Respondent entirely failed to pay the 1st Claimant and has made unauthorised deductions from the 2nd Claimant’’ wages and therefore must pay: i. The 1st Claimant £1,550 (gross); and ii. The 2nd Claimant £2,310 (gross). Tribunal Judge Holt Dated 20 February 2022