J H B D Macedo v City Recycling and Storage Ltd: 3314936/2023
JUDGMENT
[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in November 2023.[2]The respondent shall pay the claimant £2,039.43, which is the net sum deducted. The respondent is responsible for the payment of any tax or National Insurance.REASONS
[1]Full reasons for the decision were given to the claimant at the hearing. However, as the respondent was not represented at the hearing, the reasons for the Tribunal’s decision to proceed with the hearing in the respondent’s absence and the reasons for the award made are summarised below. Non-attendance of the respondent[2]No representative for the respondent attended the hearing. Mindful of Rule 47 of the Employment Tribunal Procedure Rules 2024 (copied below for reference) the Tribunal clerk telephoned the contact number provided by the respondent. There was no answer and the call diverted to voicemail. The clerk also checked the Tribunal inbox to ascertain whether the respondent had sent an email to explain its absence at the hearing. The last communication from the respondent was 13 January 2025 advising the Tribunal that: “As of 13/10/2024 Mr David N McDowell took over as director on this company” and providing contact details for Mr McDowell. The telephone number in this email was the number the Tribunal used to contact the respondent today. It is noted that the respondent delayed in sending this information to the Tribunal: the appointment was October 2024; the respondent did not notify the Tribunal until January 2025. Non-attendance 47. If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.[3]At 10.10am the respondent’s representative had still not attended the hearing. I have seen a copy of the notice of hearing dated 25 October 2024. It was sent to both parties informing them that a final hearing would take place by CVP on 28 February 2025. In October 2024 Cara-Anne McDowell was the respondent’s contact. I find that the notice of hearing was properly served on the contact provided by the respondent at the time. Therefore, I find the notice of hearing complied with Rule 56 of the Employment Tribunal Rules of Procedure 2024 (copied below for ease of reference). It was incumbent on Ms McDowell to notify a responsible person in the company of the hearing when she resigned in October 2024. That it seems she did not do so is a matter for the respondent. Notice of final hearing 56.—(1) The Tribunal must give the parties not less than 14 days’ notice of the date of a final hearing. (2) Notice of a final hearing may be given before the date that the response is to be presented under rule 17(1) (response), or a reply is to be presented under rule 26(1) (replying to an employer’s contract claim) provided the date of the hearing is no sooner than 14 days after the date on which the response or reply is to be presented to the Tribunal in accordance with each of those rules.[4]In these circumstances I conclude that it is just and fair to proceed with the hearing in the absence of the respondent.The claim
[5]The claimant was employed by the respondent, a company specialising in plastics recycling, as the Operations Manager from 28 March 2022 to 24 November 2023. Acas conciliation started on 30 November 2023 and a certificate was issued on 4 December 2023. By a claim form dated 1 October 2023 the claimant claims unlawful deduction of his November 2023 wages of £2,719.24 net.[6]By an ET3 response form dated 18 July 2024 the respondent denies the claim stating that the claimant failed to give 1 weeks’ notice of the termination of his employment, as required by the contract of employment parties entered into on 1 October 2023. The respondent states the claimant failed to return his laptop, mobile phone and van key.[7]The claimant provided a copy of his November 2023 payslip (£2,719.24 net), emails and text messages with Cara-Anne McDowell and a witness statement in evidence. At the hearing the claimant accepted he had not returned the items alleged, explaining that on 24 November 2024 he left the site quickly after a tense discussion with a manager and did not have the opportunity to do so.[8]The respondent provided a copy of the claimant’s contract of employment dated 1 October 2023 which the claimant accepted was accurate. Finding of fact[9]The emails and text messages sent by Cara-Anne McDowell to the claimant make promises in the months after November 2023 that she will pay the claimant’s November 2023 wages once the respondent’s cash flow problems resolve. I find that the respondent did not pay these wages.[10]Clause 14.2 of the claimant’s employment contract requires both parties to give the other 1 weeks’ notice of any termination of employment for the first 2 years of employment. I find this provision applies to the claimant’s decision to end his employment with the respondent on 24 November 2024. By his own admission he did not give the respondent the required 1 weeks’ notice.Conclusion
[11]The claimant was not paid in November 2023. He did not give the required 1 weeks’ notice. Therefore, the claimant is entitled to 3 weeks pay of £2,039.43 calculated as followed: November pay of £2,719.24 at a weekly rate of £679.81. Approved by: