Mr J Temba v White Hat Traders Ltd: 3307463/2020
JUDGMENT
The respondent made an unlawful deduction from he claimant’s wages and is ordered to pay to the claimant £88REASONS
[1]This case involves a claim for £176.00 which the claimant says he is due for working two days on 30 June 2020 and 1 July 2020.[2]The reason that this claim has been brought is because the employer failed to pay the claimant for the work he did, and admits that it has failed to pay him.[3]The respondent employer in this case requires employees to have a CSCS card. A CSCS card is a card which provides proof that an individual working on a construction site has the appropriate training and qualifications for the job that they do on site. By ensuring the workforce are appropriately qualified the cards play a part in improving standards and safety on UK construction sites. However, holding a CSCS card is not a legislative requirement. It is entirely up to the principal contractor or client whether workers are required to hold the card before they are allowed on site. However, most principal contractors and major house builders require construction workers on their sites to hold a valid card and the reasons for that were explained both by Mr Kararia and by Mr Reeves. It is a matter which is of fundamental importance in relation to health and safety.[4]What happened in this case is that Mr Temba had been working on this site for a different contractor. He was then offered work with Reece Flooring. He accepted that work. He was asked to provide information by Mr Kararia. That information included providing evidence of his identity and also a copy of his CSCS card. The claimant made it clear that he did not have one but importantly he said he had passed his test before lockdown and he had “sent off for it” back in March and was still waiting to receive it. He sent a certificate to Mr Kararia. That certificate, it turns out, is a forgery. The certificate relates to a woman, not the claimant.[5]The claimant did not in fact send off for a CSCS certificate. He has never received one and he has never possessed one. He insists however that he did take a test online and was told that he had passed. However, Mr Reece informs me, and I do not know whether he is right or the claimant is right, but Mr Reece informs me that it is not possible to take the test online and you cannot get the card online as the claimant described. If I had to choose between the two versions I would be inclined to accept Mr Reece’s evidence which seems to me more reliable if for no other reason because in giving his evidence before me has maintained a consistency that the claimant did not.[6]On 30 June the claimant did a full day’s work and so he is entitled to be paid £88.00. There is no defence to this.[7]Although Mr Kararia and Mr Reece find it objectionable, for perhaps understandable reasons, that the claimant was able to inveigle his way on to the site and secure employment, the simple fact of the matter is he did do work on the site and he is entitled to be paid. There is no question about the quality of work that he did do. The basis on which he secured the work may give rise to circumstances where his employer may have a claim against him but no such claim arises here to defeat the claimant’s wages claim. Mr Temba is entitled to be paid for the work that he did and in this case, whilst understandably annoyed by the way that he has presented himself, there is nothing that prevents Mr Temba being able to claim for the work that he did and so therefore I am going to award Mr Temba £88.00 in respect of the first day worked because there is no dispute that he worked on the first day.[8]Although Mr Reece is sceptical about the hours that the claimant worked this was not raised in the response the claim by Mr Kararia who accepts that the claimant worked on the first day. I am surprised that if there was a genuine question about the claimant working on 30 June that it is not something that was set out in the response form. In the response it was Mr Kararia’s position that was willing to pay the claimant for that day but refused to pay for two. I am satisfied that Mr Temba is entitled to be paid for 30 June.[9]As to 1 July the position is that Mr Temba says, and stated this in his claim form, that he worked all day and at the end of the day he was told that he would not be allowed back the following day because he did not have the appropriate documentation. He did not have it then and he does not have it now.[10]The question for me is what work did he do on 1 July for which he is entitled to be paid? I am of the view that he is entitled to be paid for the work he did. Mr Reece tells me that the claimant did not do any work on the second day. The claimant however says he did do work on the second day. Do I accept what the claimant says, or do I accept what Mr Reece says?[11]There is a problem with the claimant’s evidence in this case and that is he has told two important things which are patently untrue. It is patently untrue that he had a CSCS certificate even though he represented that he did. It was also patently untrue that he had sent off for the card and waiting on it. Additionally he may have told third lie about having taken the CSCS test online, because Mr Reece says he could not have taken it that way. So the claimant is a person whose evidence I should treat with some caution.[12]The difficulty for the respondent is that he relies on the hearsay of Mr Reece.[13]Having considered all the evidence given by the parties I am satisfied that the claimant attended work on 1 July. I am not satisfied that he worked until 3.30 as he suggested. I am not satisfied of that because the claimant’s own evidence contradicted the fact that he worked until 3.30. He told me that he worked at least until 3.30 more or less a day and a short while later apparently referring to his friend was able to tell me that the issue about his continuing to work had already arisen and he was sending documentation to someone called Rocco at 14.58 which was 32 minutes earlier. I am quite satisfied that the claimant did not work until 3.30.[14]Did he work until 2.58? I think it is not likely that he did work until 2.58 because, as I understand what happened on 1 July is that the claimant was being asked to provide documentation at the start of the day because the documentation that he had earlier provided was not genuine. It seems to me that this is the sort of enquiry that was made start of the engagement. It requires the checking of information. Important information for the reasons explained, I think it is more likely than not that those enquiries would have been made at the first opportunity. I can understand why on the first day those requirements may not have been made but I am satisfied that those enquiries would have been made at an early stage on the second day. I am not satisfied that the claimant did any work in respect of which he is entitled to be paid on 1 July because once it was unknown he did not have the documentation he was not permitted to work and I am satisfied that occurred at the start of the 1 July as the respondent contends and not at 3.30pm as the claimant contends.[15]Therefore my judgment is that he is entitled to £88, not £176.[16]The claimant also claims that he should be awarded the sum of £150 to represent two days that have been lost as a result of bringing this case. He says that he should have a day for early conciliation. I have absolutely no idea how that arises but in any event it is not something I am going to award him. The reason Mr Temba ended up in this situation is because he chose to be dishonest with his employers. As a result they, in my view wrongly when applying the law of the land but for understandable reasons, withheld payments. That is why this case has been brought. Had Mr Temba been honest with them from the beginning he either would not have had to do a day’s work for which he had to wait many months to be paid for or he would have been employed on terms which the employer would have been happy with knowing the truth of the situation and paid as his wages fell due to be paid.[17]I am not satisfied that as a result of the failure to pay him, the claimant is entitled to recover any award under section 24(2) Employment Rights Act 1996. Section 24(2) provides: “Where a Tribunal makes a declaration under subsection (1), it may order the employer to pay the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of.” As I have said, the reason why this matter has arisen is because of the claimant’s dishonesty in presenting false information to the respondents in the first place and so it is not appropriate for me to exercise my discretion to make an award pursuant to section 24(2).[18]Finally, I think the claimant wants me to make an order for costs in his favour. The behaviour of the respondents in defending the case is understandable. They do not have a defence in law but I do understand why they adopted that position. I do not consider that they behaved unreasonably in defending this case as part of the claim was clearly not sustained and therefore I make no order for a preparation time order in favour of Mr Temba.[19]My judgment is that the respondent must pay to the claimant the sum of £88.00.