Ms R Sanchex Iza v Kristal Contracts Ltd: 3202313/2019
JUDGMENT
[1]The Respondent’s response is struck out for non-compliance with Tribunal orders.[2]The Claimant’s claims for unfair dismissal and unpaid notice pay succeed.[3]The Respondent is ordered to pay the Claimant the sum of £1385.31 in respect of her claims.REASONS
[1]The Claimant was employed as a cleaner for the Respondent from 2 June 2014 until her dismissal on 9 July 2019. She brought claims to the Tribunal for unfair dismissal and unpaid notice pay.[2]The Respondent failed to comply with Tribunal orders given on 6 November 2019 and 8 February 2020 in respect of disclosure of documents and the production of the hearing bundle. The 6 November 2019 order clearly specified, in bold type, the potential consequences of non compliance with the order.[3]On 24 January 2020 the Claimant’s representatives applied to strike out the Respondent’s response for non-compliance with 6 November 2019 order. The Tribunal order of 8 February 2020 followed this application. Mr C Fernando stated that the Respondent was a small company and was not used to Tribunal processes.[4]The Claimant is a Spanish speaker has limited understanding of English. However, no application for a court authorised interpreter had been made by her representatives.[5]Therefore matter was not in a position to proceed during the hearing.[6]I provided the parties with an opportunity to consider resolving the matters between themselves, I provided time but following discussions between them there was no accord.[7]In respect of the merits of the claims the Respondent submitted there was no time for any investigation prior to the Claimant’s dismissal and it did not deny that there was no dismissal meeting or appeal offered to her.[8]I then considered representations on the appropriate way to proceed. Ms Florea stated that the Respondent should be ‘debarred’ from taking part in the proceedings due to their non-compliance with Tribunal orders. Mr C Fernando said it was for the Tribunal to decide.[9]Given the non-compliance by the Respondent with the clearly worded orders made by the Tribunal on 6 November 2019 and 8 February 2020, I concluded that it would be appropriate to strike out the Respondent’s response pursuant to rule 37(1)(c) of the 2013 Employment Tribunal Rules (‘ET rules’). Rule 37 states: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.”[10]In deciding on strike out I had regard to the overriding objective in rule 2 of the ET Rules which states: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing; (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c)avoiding unnecessary formality and seeking flexibility in the proceedings; (d)avoiding delay, so far as compatible with proper consideration of the issues; and (e)saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the Tribunal.”[11]I was keen to ensure that the matter was determined in a way which was proportionate to the complexity of the issues, avoiding delay and saving expense, including that of further Tribunal time. I did not consider it to be in accordance with the overriding objective for the matter to be further adjourned, given the relative simplicity of the issues and the inevitable delay and costs (including interpreter costs) that would flow from a postponement.[12]The Respondent’s submissions regarding the merits of the claims led me to conclude that a procedural unfair dismissal finding would have been highly likely had they been permitted to respond. Whilst the Respondent would lose the opportunity to argue issues of contribution and what would have happened had a fair procedure been followed, the Claimant’s schedule of loss was modest and I did not consider that this disadvantage to the Respondent outweighed the disadvantages of adjourning the hearing for another date so as to be unjust to the Respondent.[13]As there was no interpreter present I decided that the matter should be considered on the basis of representations of the case being uncontested pursuant to rule 37(3) and rule 21 of the ET rules. Therefore judgment was given in favour of the Claimant that she was unfairly dismissal and not paid her notice pay.[14]I heard representations from Ms Florea, the Claimant’s representative, regarding the amounts claimed. She based her submissions on the Claimant schedule of loss and instructions she had taken from the Claimant.Remedy
[15]The Claimant earned an average of £457.16 gross per calendar month. Her gross weekly pay was therefore £105.50.[16]The Claimant’s net pay per calendar month was £440.72. This equates to a weekly net pay of £101.70.[17]In respect of notice pay the Claimant stated that there was a shortfall £119.59 for July 2019. The Respondent is ordered to pay the Claimant this sum.[18]For unfair dismissal the Claimant worked for 5 full years and is therefore entitled to a basic award of £527.50 (5 x £105.5).[19]In respect of compensatory award, it was submitted that the Claimant earned £387 net each month for August, September and October 2019 and secured higher paying employment from October 2019.[20]The Claimant therefore earned £1,161 for this period. However, the Claimant would have earned £1322.16 for this period had she not been unfairly dismissed.20.1 The Claimant’s loss of earnings is therefore £161.16.20.2 I award £300 for loss of statutory rights20.3 The total compensatory award is £461.16.[21]The total basic plus compensatory award for unfair dismissal is £988.66[22]If the claim for unpaid notice pay is combined with the unfair dismissal award the Claimant is entitled to £1108.25 (£119.59 + £988.66).[23]I award an uplift of 25% of £1108.25, namely £277.06 in respect of the Respondent’s total failure to comply with the ACAS code on disciplinary and dismissal.[24]The Respondent is therefore ordered to pay the Claimant the sum of £1385.31 in respect of her claims.