Mr J Nwosu v L J Health and Wellbeing Ltd: 2412092/2023
JUDGMENT
[1]The claimant’s complaint of unauthorised deduction from wages succeeds.[2]The respondent is ordered to pay to the claimant £ 444.85 made up as set out below.[3]The claimant’s complaint of unfair dismissal is dismissed on withdrawal as he did not have two years’ service.REASONS
[4]By a claim form dated 27 November 2023 the claimant brought complaints for unauthorised deduction from wages and unfair dismissal. The unfair dismissal complaint has been dismissed today because he did not have two years service. The respondent was sent notice of the claimant given until 25 January 2024 to submit its response. The respondent failed to submit a response on time. On 31 January 2024 the respondent sent a response form, out of time and without an accompanying application to extend time setting out the grounds for that application including the reasons why the form was sent late.[5]Notice of today’s hearing was sent to the claimant and respondent by post on 27 March 2024. It was sent to the address given in the claim form which was the same address confirmed by the respondent in the response form that was submitted late. The respondent failed to attend today’s hearing. Efforts were made to contact the respondent by email contact to its website, it had not provided a direct email address in its response form sent late, and by telephone. The respondent did not respond. I decided it was in the interests of justice to proceed with the hearing in the respondent’s absence.[7]I had regard to Rule 18 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and decided to reject the response because it was received late and was not accompanied by an application for an extention of time.[8]I then clarified the claim with the claimant. He was able to quantify his claim by oral evidence and documents sent to the tribunal; three timesheets and copies of payments received from the respondent on his banking app. As the claim was quantifiable I decided it was in the interests of justice to proceed to determine the complaint today. I converted the hearing to a public hearing for the purposes of determining the complaint.[9]I heard oral evidence from the claimant on oath. I made the following brief findings of fact: the claimant was employed by the respondent limited company for around three months in summer 2023. He worked as a care support worker under supervision from the senior nurse on shift. If he worked weekdays he was paid the hourly rate of £10.50, if he worked weekends was paid the hourly rate of £11.20. Each time he worked he completed a timesheet and had it signed off by the senior nurse on shift. He was paid by direct bank transfer to his bank and the payments appeared as receipts from LJ Health and Well-being Limited. He was paid two weeks in arrears. On Tuesday 22 August 2023 the claimant worked a 7 hour shift and on Sunday 27 August the claimant worked a 6 ½ hour shift . Both those shifts appeared on a timesheet which he had signed by senior nurse Diane Wycherley. On Saturday 26 August the claimant worked 14 hours which appeared on a timesheet signed by senior nurse A Backhouse. On Tuesday, 29 August 2023 the claimant worked an 8 hour shift and on 1 September 2023 he worked a 5 ½ hour shift both of which shifts appeared on a timesheet signed by senior nurse Johnson. I saw the three timesheets attesting to those hours of work signed by the senior nurses. 1 September 2023 was the last shift the claimant worked for the respondent and the date on which his employment with them came to an end. The claimant pursued the respondent for payment of his outstanding shifts. His calls went unanswered. He attended at the Dunkirk Drive address for the respondent at Ellesmere Port and met with the mother of the person he understood to be the director of the business, Mr Liam Jackson. Mr Jackson’s mother telephoned Mr Jackson with whom the claimant spoke. Mr Jackson asked him to send the timesheets by screenshot on the phone and assured the claimant he would be paid for them. The claimant sent the timesheets that day and has not been paid. His calls to Mr Jackson go unanswered. On 10 November 2023, having still not been paid, he contacted ACAS and entered a period of early conciliation. He achieved an early conciliation certificate on 27 November 2023 and commenced proceedings in the employment tribunal that same day. When he commenced proceedings he forgot to put the word limited at the end of the respondent’s title. He was at all times employed by LJ Health and WellBeing Limited. The claimant seeks £444.85 unauthorised deduction from wages properly payable to him.[10]The relevant law was contained in section 13 Employment Rights Act 1996 and in applying the law I had regard to the overriding objective in rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. In deciding whether or not to proceed to give judgment today I had to balance the rights of the respondent with those of the claimant and consider flexibility in proceedings, proportionality and the appropriate use of judicial time. Given that the respondent had failed to respond in time, failed to make an application for an extension of time in which to file its response and in the late response it filed indicated that it was not refusing to pay but that it had not had timesheets, I decided to proceed to judgment today. I determined that the appropriate respondent is LJ Health and Well-being Limited and amended the respondent’s title to these proceedings accordingly. The company search revealed Mr Jackson to be a director of that company and gave a registered office address. The respondent’s position in not having had a chance to protest about the amounts the claimant claims (to any extent that it would be permitted to do so by a judge), is protected in that it may seek reconsideration of this decision and I direct that my administrative colleagues please include with this judgment, as usual, notes on applications for reconsideration. I have provided these written reasons for my decision of my own volition so that the respondent, who chose not to attend, can see what happened today in its absence.[11]In applying the law on unauthorised deductions I find that the claimant was due wages properly payable to him for the following shifts at the following rates giving a total of £444.85 which I have ordered the respondent to pay to the claimant. Tuesday, 22 August 2023 7 hours at £10.50 £73.50 Sunday, 27 August 2023 6 ½ hours at £11.20 £72.80 Saturday,26 August 2023 14 hours at £11.20 £156.80 Tuesday, 29 August 2023 8 hours of £10.50 £84.00 Friday 1 September 2023 5 ½ hours at £10.50 £57.75 = £ 444.85[12]There is a history of failure by the respondent to respond to tribunal correspondence in time. I am therefore directing that this judgment be sent to the address given in the claim form at 2 Dunkirk Drive Ellesmere Port, and also to the registered office address for the respondent limited company for the attention of Mr Liam James Jackson at first floor management suite, brought shopping Park, Bretton, Chester, England CH4 0DE.