Mr Paul Hamilton v Mr Alan McLean T/a The Corran Inn and C I Leisure Ltd: 4112767/2018
JUDGMENT
The judgment of the tribunal is:-(i) the claimant was employed by the first respondent, Mr Alan Maclean trading as The Corran Inn;(ii) the claim is successful and Mr Alan Maclean is ordered to pay to the claimant:- (a) the sum of £612 in respect of an unauthorised deduction of wages; (b) the sum of £136 in respect of two days holiday pay and (c) the sum of £160 in respect of the payment of tips. E.T. Z4 (WR)REASONS
[1]The claimant presented a claim to the Employment Tribunal on the 25 July 2018 alleging he had not been paid wages or holiday pay.[2]The claim was initially brought against the first named respondent. The first respondent did not respond to the claim.[3]The claimant informed the tribunal he had learned Mr Maclean was a Director of the second respondent. The claim was served on the second respondent, but no response was entered.[4]The first and second respondent were notified of the Hearing today, but did not appear.[5]I heard evidence from the claimant. I made the following findings of fact.[6]The claimant was interviewed by Mr Alan Maclean for a position as a Chef at The Corran Inn.[7]The claimant was successful and started work on the 14 May 2018. He earned £8.50 per hour and was entitled to a share of the tips.[8]The claimant was paid in cash by Mr Maclean for the first two weeks of his employment. Thereafter, Mr Maclean failed to make payment of wages to the claimant.[9]The claimant unsuccessfully requested payment from Mr Maclean on many occasions. The claimant left employment on the 13 June 2018.[10]The claimant has outstanding wages of 72 hours @ £8.50 per hour. He had also accrued 2 days holiday as at the termination of his employment.[11]The claimant was entitled to, but had not received, a share of the tips which he estimated at £40 per week.[12]The claimant considered he was employed by Mr Alan Maclean. It was Mr Maclean who had interviewed him for the job, given instructions and made payment of wages to him. The claimant had only referred to the second respondent after learning Mr Maclean was a Director of the company.[13]The claimant had not received anything in writing from the first or second respondent. He had not received a contract, or payslips, or a written letter of offer of employment. The claimant understood it was Mr Maclean who ran The Corran Inn.[14]I decided, based on the evidence available to me, that the claimant was employed by Mr Alan Maclean.[15]I decided the claims brought by the claimant are well-founded and I order Mr Maclean to make the following payments to the claimant:• a payment of wages in the sum of £612 gross (being 72 hours x £8.50 per hour);• a payment of 2 days holiday pay in the sum of £136 (being 8 hours x 2 days x £8.50 per hour) and• a payment in respect of tips in the sum of £160 (being £40 per week for 4 weeks).[16]The claimant advised The Corran Inn had closed. I accordingly considered it appropriate to have this Judgment sent to Mr Maclean’s home address.[1]The claimant presented a claim to the Employment Tribunal on the 25 July 2018 alleging he had not been paid wages or holiday pay.[2]The claim was initially brought against the first respondent, who did not enter a response.[3]The second respondent was joined to the proceedings, but did not enter a response. E.T. Z4 (WR)[4]All parties were notified of a Hearing on the 9 January 2019. The respondents did not appear for the Hearing.[5]The Employment Judge heard evidence from the claimant. The Employment Judge decided the claimant had been employed by the first respondent, and ordered the first respondent to pay wages, tips and holiday pay to the claimant.[6]The claimant informed the tribunal that The Corran Inn had closed. The Judgment was, accordingly, sent to the home address of Mr McLean.[7]Mr McLean wrote to the tribunal on the 28 January 2019 seeking a reconsideration of the Judgment on the basis he had not received notification of the hearing.[8]The hearing today was to determine Mr McLean’s application for reconsideration.[9]I heard evidence from Mr McLean and I was referred to a number of documents which he produced.Findings of fact
[10]Mr McLean was employed as the Head Chef at The Corran Inn for a period of 7 years.[11]Mr McLean worked for Mr Anthony Chessa who was the leaseholder of The Corran Inn, and who owned the company CRG Ayrshire, which employed Mr McLean.[12]Mr Chessa established a new company, C I Leisure Ltd, with Mr McLean as a Director of that company.[13]Mr McLean believed that company employed the claimant.[14]Mr McLean ceased being a Director of C I Leisure Ltd in May 2018. Document 2 was a copy of the Termination of a Director Appointment confirming this.[15]C I Leisure Ltd was dissolved in April 2019 (document 1).[16]Mr McLean left his employment at The Corran Inn in June 2018.[17]The Corran Inn closed in August 2018.[18]Mr McLean did not receive the claim form which was sent to The Corran Inn, and this explained why he had not entered a response.[19]Mr McLean did not receive the notice of hearing for the last hearing, and this explained why he had not appeared.[20]I had regard to the terms of rules 70 – 72 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 which set out the rules regarding applications for reconsideration. Rule 70 provides that on reconsideration, a tribunal may decide to confirm the original decision, or to vary to revoke it.[21]I accepted Mr McLean’s evidence that he had not received correspondence concerning this case because it had been sent to him at The Corran Inn, after he had left and after the Inn had closed.[22]I was accordingly satisfied Mr McLean had not received notice of the claim and had not, therefore, had an opportunity to enter a response.[23]I decided to revoke (that is, cancel) the Judgement dated 15 January 2019. I further decided to allow a period of 28 days for Mr McLean to enter a response. (Mr McLean has not received a copy of the claim form or response, and these forms should be copied to him for information and completion of the ET3 response). Case management[24]I explained to Mr Hamilton that on the basis of what he had heard today, it appeared Mr McLean was not his employer (although this would have to be formally decided by another tribunal after Mr McLean had entered his response). It further appeared C I Leisure Ltd (whom Mr McLean believed was Mr Hamilton’s employer) had been dissolved and therefore Mr Hamilton could not achieve payment of any monies from that company.[25]I invited Mr Hamilton to give some thought to how he wished to proceed given what had been heard this morning. The effect of today’s hearing is that the Judgment dated 15 January 2019 has been cancelled. Mr McLean will have an opportunity to formally respond to the claim. A tribunal hearing will then be arranged to hear and determine Mr Hamilton’s claim against these two respondents, unless Mr Hamilton decides he no longer wishes to proceed, or unless he decides to ask the tribunal to bring in another party whom he believes to be his employer.Findings of fact
[1]This preliminary hearing was set down to identify the correct respondent. The claimant did not attend.[2]The first respondent, Mr McLean, who attended today, had lodged a response following a reconsideration hearing which took place on 2 May ETZ4(WR) 2 4112767/18 Page 2 2019, asserting that he had not employed the claimant. His position was that the claimant had been employed by the second respondent.[3]No response has been submitted by the second respondent, however the company CI Leisure was dissolved in April 2019.[4]As the claimant did not attend to pursue his claim, and given the comments of Employment Judge Wiseman at paragraph 25 of her judgment, I decided the claim against the first respondent should be dismissed.[5]Notwithstanding the fact that the second respondent has not entered a response, since there is no legal entity in existence against whom judgment can be made, the claim against the second respondent is also dismissed.