Mr R Cowan v K McTear: 4123830/2018
JUDGMENT
No response has been presented to this claim and an Employment Judge has decided to issue the following judgment on the available material under rule 21:[1]The respondent has made an unauthorised deduction from the claimant’s wages and is ordered to pay the claimant the sum of £700.[2]The respondent has failed to pay the claimant’s holiday entitlement and is ordered to pay the claimant the sum of £560.[3]The hearing listed on 13 March 2019 is cancelled. Employment Judge: Frances Eccles Date of Judgement: 08 February 2019 Entered in register: 08 February 2019 And copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4123830/2018 Held in Glasgow on 12 June 2019 Employment Judge O’Donnell Mr R Cowan Claimant In Person Kieron McTear Respondent No appearance and No representationREASONS
1 . The Claimant has brought a complaint of unlawful deduction of wages and breach of contract. Procedural history[2]The ET 1 named the Respondent as “Kieron McTear” and it was served on Mr McTear at the address given on the ET1 .[3]No ET3 was received and a Rule 21 judgment was issued in favour of the Claimant for the sums set out in the ET1 . E.T. Z4 (WR)[4]Subsequently, an application for the Rule 21 judgment to be reconsidered and set aside along with an application for an extension of time to lodge an ET3 was received by solicitors acting for Mr McTear. These applications were granted and the ET3 accepted.[5]The fundamental defence raised in the ET3 was that Mr McTear did not employ the Claimant and that no contractual relationship existed between them.[6]The present hearing was listed to determine the correct identity of the Respondent. Procedure at the hearing[7]The Respondent did not attend the hearing; he had attended the Tribunal offices the day before on the mistaken understanding that the hearing was due to be heard on that day.[8]Attempts were made to contact the Respondent on the day of the hearing and although his offices could be reached, the clerk was informed that he was not at his desk and could not be reached.[9]The solicitor previously acting for the Respondent had come off record some time ago and was no longer involved.[10]In the circumstances, where the Respondent was aware of the date of the hearing, efforts had been made to contact him and no application made to postpone the hearing, the Employment Tribunal decided that it would be in keeping with the overriding objective to proceed with the hearing and avoid further delay. Claimants application to amend[11]The Claimant, at the outset of the hearing , accepted that he was not employed by Mr McTear. Based on the contents of his payslip, the Claimant accepted that the correct name of his employer was "McTear Contracts Ltd”.[12]The Claimant, therefore, applied to amend the name of the Respondent to “McTear Contracts Ltd”. The Claimant explained that Kieron McTear was the owner and director of the company; everything went through him and the Claimant had always viewed Mr McTear as his employer.[13]The Claimant had named his employer as “McTear Contracts” on his ACAS Early Conciliation form but had made an error when completing the ET1 .Relevant Law
[14]The Employment Tribunal has a general discretion to allow an amendment of the claim in terms of Rule 29 and 41 of the Rules of Procedure.[15]The test to be applied by the Tribunal in determining applications to amend has been laid down in a number of decisions and the fundamental principles can be found in the judgments in Cocking v Sandhurst (Stationers) Ltd and anor 1974 ICR 650, NIRC and Sefkent Bus Co Ltd v Moore 1996 ICR 836, EAT.[16]Those cases make it clear that the Tribunal must carry out a balancing exercise taking into account all the relevant factors with regard to the interests of justice and the relative hardships either party may face if the application is refused or granted. In particular, the Tribunal should take account of the nature of the amendment, the applicability of time limits and the timing and manner of the application.[17]The Tribunal, first of all, considered whether to determine the application in the absence of the Respondent. The Tribunal noted that the purpose of the hearing was to determine the identity of the Claimant’s employer and that previous correspondence from the Tribunal had raised the issue of whether an amendment is sought.[18]The issue of amendment was, therefore, one which was live and the Respondent was aware of the hearing. Further, the Mr McTear is the owner and director of the company so would undoubtedly have the authority and ability to reply on behalf of the company. Had he chosen to attend then he would have had the opportunity to object if he wished. 1 9. In these circumstances, the Respondent having had the opportunity to attend and participate in the hearing but not having chosen to do so, the Tribunal considered that it would be in keeping with the overriding objective to determine the application in order to avoid further delay.[20]Turning to the factors that require to be considered in determining the application, the Tribunal was of the view that the nature of the amendment does not fundamentally alter the cause of action being pursued; the Claimant still seeks the same sums of money on the same basis that he was always sought those sums. 21 . All that the amendment does is correct the error in the ET1 as to the identity of the Respondent. Although Mr McTear and the limited company are technically separate legal entities, Mr McTear is the main actor in the limited company and it cannot, therefore, be said that the legal entity which he controls has been unaware of the claim being pursued.[22]Further, the limited company was the employer named in the ACAS Early Conciliation process and so it must have been clear, during the Early Conciliation process, that the sums in question were being sought from the company.[23]In terms of time limits, these would only be relevant where the amendment raises a new cause of action. As noted above, the Tribunal does not consider that the amendment does raise a new cause of action; the cause of action remains the same, that is, that the Claimant seeks monies owed to him by his employer.[24]All the amendment does is correct an error in the identity of the Claimant’s employer and, in these circumstances, the Tribunal does not consider that the issue of time limits apply.[25]The application is made at a relatively early stage of these proceedings; although there has been some procedure in this case, this has not involved the resolution of substantive issues.[26]The Tribunal does not consider that this is a case where the passage of time will cause any prejudice or hardship to the Respondent in terms of the ability to defend the claim. The claim relates to a relatively limited set of facts about what monies the Claimant should have been paid at the end of his employment. The Tribunal would expect that, given the Claimant left employment late in 2018, the Respondent would have retained the relevant payroll records and they should not be prevented from being able to defend the claim if there is a dispute about what is owed.[27]If the application was refused then there would be prejudice to the Claimant as the claim could not proceed against the Respondent as named. The Tribunal did take account of the fact that the Claimant may have an alternative remedy in the Sheriff Court but this would mean further delay for the Claimant in resolving this matter and he would effectively have to start the proceedings again.[28]In these circumstances, the Tribunal considered that the balance of prejudice and hardship fell in favour of allowing the application and that it would be in the interests of justice to do so.[29]The application is therefore allowed and the name of the Respondent is amended to “McTear Contracts Ltd”. The address for the Respondent remains the same.[30]The Tribunal orders that a fresh ET1 will now be served on the Respondent for them to submit an ET3. Employment Judge: Peter O'Donnell Date of Judgment: 26 June 2019 Entered in register: 02 July 2019 and copied to parties Date sent to parties E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4123830/2018 5 Held in Glasgow on 11 October 2019 Employment Judge W A Meiklejohn 10 Mr R Cowan Claimant McTear Contracts Limited Respondent 15Relevant Law
[1]This case came before me for a hearing to deal with the claimant’s application for reconsideration of my earlier Judgment dated 15 October 2019. That application was dated, and had been submitted to the Tribunal on, 14 October 2019 and followed a hearing on 11 October 2019 at which I gave oral reasons.[2]Notice of the hearing on 3 February 2020 had been sent to both parties on 2 December 2019. At 10.00am on 3 February 2020 neither party was in attendance. I instructed the clerk to contact both parties. The claimant advised that he would attend within an hour. The respondent’s director Mr[5]McTear advised that he was unable to attend, and said that he had been advised that the hearing was to take place on 7 February 2020. Mr McTear did not say when and by whom he had been so advised. 3. In these circumstances, I was satisfied that both parties had been given notice that the hearing would commence at 10.00am on 3 February 2020. I decided 10 that it was consistent with the overriding objective in Rule 2 to deal with cases fairly and justly, including avoiding delay so far as compatible with proper consideration of the issues, that the hearing should proceed in the absence of the respondent. Accordingly, the claimant having attended at the Tribunal, the hearing commenced at 11.10am on 3 February 2020.[15]The hearing on 11 October 2019 4. At the hearing which took place on 11 October 2019, I heard evidence from the claimant and, for the respondent, from Mr McTear, director, and Mr N Litterick, general manager. 5. I decided that the claimant was entitled to be paid £750.00 of wages and 20 £150.00 of holiday pay and awarded the said sums in terms of paragraphs (i) and (ii) of my Judgment. 6. After two adjournments during the hearing on 11 October 2019, Mr McTear produced to me a contract of employment and a training agreement, both of which bore to have been signed by the claimant on 13 January 2013. The 25 claimant disputed the authenticity of these documents but I decided to accept them as genuine. 7. The effect of the training agreement was that the claimant was obliged to repay to the respondent the cost of training paid for by the respondent if he left employment within 12 months of the date of the training. 8. The claimant had undertaken training, paid for by the respondent, in September 2018. Under the terms of the training agreement, he was required to repay 100% of the cost of training provided within 3 months prior to leaving employment. 5 9. The cost of the said training paid for by the respondent was £730.00 (net of VAT) and I decided that the respondent was entitled to recover this sum from the claimant, all in terms of paragraph (iii) of my said Judgment. In terms of paragraph (iv) of my said Judgment, I found that no monies were payable by the respondent to the claimant as the said sum of £730.00 would exceed the 10 net sums otherwise payable by the respondent to the claimant in terms of paragraphs (i) and (ii) of my said Judgment. The hearing on 3 February 2020 10. At the hearing on 3 February 2020, I heard evidence from the claimant, who I found to be a credible witness. The claimant had submitted to the Tribunal 15 with his application for reconsideration a letter dated 14 October 2019 from HM Revenue and Customs which provided details of his income for the tax year ended 5 April 2014. This letter recorded that the claimant had been employed by CCG Scotland Ltd until 17 January 2014 and by the respondent from 20 January 2014. 20 11. I accepted the claimant’s evidence that these dates were correct and accordingly that the contract of employment and training agreement produced by Mr McTear at the hearing on 11 October 2019 could not be genuine because the claimant was not employed by the respondent on 13 January 2013. I also accepted the claimant’s evidence that his bank statements from 25 2013 showed that he had been paid throughout that year by CCG Scotland Ltd.