Saad Sharif v Vital Soft Ltd: 3328480/2017
JUDGMENT
[1]The claimant’s claim for unauthorised deduction of wages is well founded and the respondent is ordered to pay him the net sum of £9,912.66 plus 25% uplift for unreasonable failure to comply with the ACAS Code namely, £2,478.17, total £12,390.83.[2]The claimant’s claim for unfair dismissal is well founded and the respondent is ordered to pay him £24,970.92. Such award is made up as follows:2.1 Basic award: £2,445 plus 25% uplift for unreasonable failure to comply with the ACAS Code, namely £611.25. Total £3,056.25.2.2 Compensatory award: £19,576.74 plus 25% uplift for unreasonable failure to comply with the ACAS Code, namely £4,894.18. Total £24,470.92.2.3 Loss of statutory rights: £500. Case Number: 3328480/2017 2[3]The respondents breach of contract claim is dismissed.[4]The respondent is ordered to pay the claimant £3,600 in respect of costs.[5]Note: The recoupment regulations do not apply as the claimant has not been in receipt of any benefits. His VISA status disallows him from claiming any. _____________________________ Employment Judge Alliott Date: …8 May 2019………………….. Sent to the parties on: ....................... ............................................................ For the Tribunal Office Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case No: 3328480/2017 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr S Sharif v Vital Soft Limited Heard at: Watford On: 21 November 2018, 12 February 2019 and 1 May 2019 Before:REASONS
[1]This matter came before me for a full merits hearing on 21 November 2018 with a time estimate of 1 day. That time estimate was woefully inadequate given the claimant’s intention to give evidence and the respondent’s comparatively late decision to call four live witnesses. The matter went partheard at 4:45pm on 21 November before cross-examination of the respondent’s main witness, Mr Muhammad Atif had been completed. At the conclusion of that hearing the matter was relisted to be heard on 11 and 12 February 2018.[2]Shortly before 11 February 2018, the respondent applied for an adjournment of the hearing due to Mr Atif being in Pakistan attending to his seriously ill father. At a telephone CPH held on 12 February 2019, the resumed hearing was rescheduled for 30 April and 1 May. At that time, the respondent was represented by Mayfair Solicitors and Counsel attended on that telephonehearing.
[3]Notice of this hearing was sent to the parties on 21 April 2019. Case No: 3328480/2017 2[4]On 23 April 2019, Mayfair Solicitors emailed the Employment Tribunal advising that they were no longer instructed on behalf of the respondent. They invited the tribunal to forward all future correspondence to the respondent and confirmed that they had forwarded the notice of hearing to the respondent.[5]Unfortunately, the matter was listed as if it were a new full merits hearing, whereas obviously enough, being part-heard, it had to be reserved to myself. I was not in attendance on 30 April 2019.[6]Be that as it may, I have been told that Miss Imtiaz sent three emails to the respondent, one to Mr Atif’s business email address, one to his personal email address and one to “sales@vitalsoft” on 25 April 2019. These emails reminded the respondent of the date of the hearing. No response was made to them.[7]On 29 April, Ms Imtiaz also sent emails to Mr Atif’s address and to an address, “info@vitalsoft”. This was also informing the respondent that the hearing was to be resumed the next day. In addition, Ms Imtiaz telephoned the respondent’s office and spoke to someone giving the name “Sana”. She apparently confirmed that Mr Atif was in London and told Ms Imtiaz that she would pass on the message.[8]Also on 29 April, Watford ET listing attempted to contact the respondent directly on the contact number given on ET form 1, and the note on file that I have is “no answer and no voicemail facility”.[9]On 30 April 2019, the respondent did not attend. Due to my non-availability the matter could not be heard on that day. However, later that day on 30 April 2019, listing sent an email to both parties, including the email contact address of the respondent given on form ET1 stating that the matter was listed for hearing, starting at 10am on Wednesday 1 May and seeking confirmation that someone would be attending. The respondents are not in attendance today, 1 May 2019.[10]In the circumstances, in my judgment, the respondent has been given ample warning of the resumption of this hearing and the only conclusion I can come to is that they have decided not to attend. Pursuant to rule 47 of the ET’s Constitution of Rules of Procedure Regulations 2013, if a party fails to attend or be represented at the hearing the tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so it shall consider any information which is available to it after any enquiries that may be practicable about the reasons of the party’s absence.[11]In the circumstances I have determined that I will proceed with the hearing in the absence of the respondent. Today’s Hearing[12]The claimant has sworn and confirmed his witness statement as true to the best of his knowledge and belief. Given that Mr Atif had given evidence to the effect that the shortfall in the wages recorded as being paid to him had Case No: 3328480/2017 3 been made up with cash and/or by repayment of some sort of loan, the claimant confirmed to me on oath that his wages had not been topped up with cash payments and no deductions were due to be made concerning any loan by the respondent to him. The claimant confirmed to me that the figure in the schedule for monies earned since the cessation of his employment of £16,953.83 was accurate. Lastly, the claimant confirmed to me that he had not received any state benefits as his visa status did not allow him to claim any.Conclusions
[13]I find that the respondent made unauthorized deductions from the claimant’s wages in the total sum of £9,912.66.[14]I find that the claimant’s dismissal was unfair, both procedurally and substantively. From such evidence as I heard from Mr Atif, I found him to be an unreliable and evasive witness lacking in credibility. His assertion that any shortfall of wages had been made up by cash flew in the face of his various contemporaneous emails and references to repayment of a loan were also not borne out by contemporaneous documents. I find that the respondent has not demonstrated an honest belief in the reason given for the claimant’s dismissal, namely a failure in capability in achieving sales. I find that there were no reasonable grounds for such a belief and there was a failure to conduct a reasonable investigation. I find that the decision to dismiss was not within the range of reasonable responses of a reasonable employer. The same considerations I find relate to the allegation of gross misconduct in July 2017.[15]I find that the claimant is entitled to a basic award of 5 times £489, total £2,455.[16]I find that the claimant is entitled to a compensatory award for loss of earnings between 5 September 2017 and 1 May 2019. He would have earned £34,085.57 and I have deducted his earnings of £16,953.83. That gives a total compensatory award of £17,131.74.[17]I find that the claimant is entitled to an award of £500 for loss of statutory rights. ACAS Uplift[18]I find that there was an unreasonable failure by the respondent to comply with the ACAS codes in relation to grievance procedures and disciplinary procedures. As regards the unauthorised deduction of wages, the claimant raised his grievance informally and was fobbed off with comments to the effect that he would be paid when the respondent company had funds to do so. Thereafter, the matter was not escalated to a more formal basis of investigation meeting etc, and I find that there was a total failure to comply with the grievance procedure, warranting a maximum 25% uplift.[19]As regards the unfair dismissal, it is quite clear to me that no proper procedure was adopted at all. The claimant was simply handed a letter terminating his employment. Again, the total absence of any compliance with Case No: 3328480/2017 4 the Disciplinary Code of Practice warrants a 25% uplift. The respondent’s contractual claim[20]I find that the respondent has failed to make out their claim. Accordingly, I strike it out on the merits and also under rule 37 on the basis that it has not been actively pursued. Costs[21]At the conclusion of this hearing Ms Gilbert applied for all of the claimant’s costs in dealing with this matter, which I was informed total in excess of £9,000. Pursuant to rule 76, a tribunal may make a cost order and shall consider whether to do so when it considers that a party, or that party’s representative has acted vexatiously, abusively, disruptively or otherwise unreasonable in either the bringing of the proceedings or the way that the proceedings have been conducted, or any claim or response had no reasonable prospect of success.[22]Ms Gilbert urged upon me consideration of the conduct of the respondent in all aspects of this case, including dilatory disclosure, late agreement of the hearing bundle and late notification of which of the respondents’ witnesses were intending to give oral evidence. In addition, there was the adjourned hearing on 11 and 12 February. However, in my judgment, criticism of the way the other side has conducted the litigation and the fact that there had to be an adjournment due to ill health does not cross the threshold as being out of the ordinary in respect of litigation and into the realm of constituting unreasonable conduct. Further, Ms Gilbert urged upon me to conclude that the counterclaim stood no reasonable prospect of success. To an extent I have sympathy of that submission on the basis that, on a cursory view, the way the counterclaim was put was in very general terms and for an exaggerated amount in the region of £150,000. However, I cannot, during these proceedings, conclude that I can say there was no reasonable prospect of success.[23]However, I do consider it unreasonable not to attend this resumed hearing. It is no fault of the claimant that the hearing has been spread over two days. I am told that the claimant’s costs including VAT for attendance today and yesterday total £3,600. Accordingly, I do find that the respondent’s failure to attend on this resumed hearing constitutes unreasonable conduct and I award the sum of £3,600 by way of costs.[24]Pursuant to rule 66 of the ET Constitution Rules & Procedures Regulations 2013, the respondent shall comply with this Order for the payment of the amounts of money within 14 days of the date of this order.