THE INDUSTRIAL TRIBUNALS 

CASE REF:  1233/07

CLAIMANT:	William Jason Geary

RESPONDENT:	Patrick Hanna trading as Loughview Brasserie (Property Management Services)

DECISION

The unanimous decision of the tribunal is that:-

(i)	The title of the respondent be amended to Patrick Hanna trading as Loughview Brasserie (Property Management Services).

(ii)	All the claims are dismissed, including the claims for unpaid overtime, a redundancy payment and notice pay.

Constitution of Tribunal:

Chairman:		Mr Travers

Panel Members:	Mr Crawford
			Mr Irwin

Appearances:

The claimant was not represented and appeared in person

The respondent was not represented and appeared in person

REASONS

Issues

1.	The tribunal must determine the claimant’s claims for unpaid wages in respect of overtime, a redundancy payment, notice pay, and compensation for loss of earnings.

Facts

2.	The following represent the findings of the tribunal on the basis of the oral and documentary evidence available to it.  The tribunal heard evidence from the claimant, the respondent, and a restaurant catering consultant employed by the respondent.

3.	In September 2006, the respondent was the owner of restaurant premises known as the Loughview Brasserie [“the restaurant”].  During September the claimant commenced employment as the second chef at the restaurant. 

4.	The claimant’s work plainly impressed the respondent.  This is evidenced in part by the fact that the claimant was promoted to head chef in October 2006.  The claimant’s promotion came at a time when the respondent was responsible for running the restaurant.  During these proceedings the respondent has sought to suggest that the claimant’s performance of his duties was unsatisfactory.  The tribunal rejects the respondent’s evidence on this point and finds that the claimant discharged his duties to an adequate standard.  

5.	The respondent has no background in catering.  He was the owner of the restaurant premises and he asserts that he only became involved in the day to day running of the business in September 2006 when the then head chef surrendered the tenancy of the premises by mutual agreement.  By the autumn of 2006 the restaurant was struggling financially.  In an attempt to turn his losses into profits, in late 2006 the respondent engaged the services of two catering consultants to oversee the business and to advise him on the way forward.

6.	The consultants identified the excessive use of staff on overtime terms as a cause of commercial concern.  An instruction was issued that overtime was not to be undertaken unless it was authorised in advance by one of the consultants.  This instruction was given with the authority of the respondent and was communicated to the claimant.  

7.	The tribunal finds that the claimant was aware of the instruction concerning express prior authorisation of overtime and he accepted it.  

8.	The tribunal finds that the claimant was a diligent employee, he was keen to be part of the future of the business.  The claimant continued to do what he genuinely believed was necessary to allow him to perform his role effectively on the respondent’s behalf.  On occasion, he worked more than his contracted hours without prior authorisation. 

9.	On the first occasion he did so he was paid just half of what he would ordinarily have been paid as overtime.  Thereafter he was not paid at all for any overtime that was not the subject of prior authorisation.  The respondent derived benefit from extra hours that were worked by the claimant. 

10.	The claimant was told that there was a possibility of a “nice bonus” at Christmas.  The tribunal finds, however, that he was not offered the prospect of a guaranteed Christmas bonus.

11.	No bonus was in fact paid to the claimant because it appeared to the respondent and his consultants that the overall pattern of trading did not merit such a payment.

12.	On 2nd January 2007, the claimant informed all the employees in the restaurant that he was to cease trading on 7th January 2007.  The respondent’s intention was that the business would be restructured and re-open as a restaurant under the management of one of the consultants who had been advising him.  The respondent would then revert to his original role of landlord rather than restaurateur.

13.	The claimant did not dispute that, on termination of his contract, the respondent had paid him all wages due in respect of his basic working hours. 

14.	All of the staff, including the claimant, were made redundant but were invited to apply for positions in the new business.  The claimant was interviewed by the proposed new management team but he was unsuccessful in his application.

15.	Subsequently, the claimant secured a period of employment abroad.  The job was better paid than his work at the restaurant. 

16.	The payment summary history was produced in respect of the wages and deductions for national insurance for employees at the restaurant from 06/04//06 until 12/01/07.  The tribunal notes that this document is headed “Property Management Services”, a trading name of the Respondent’s. Wages paid in respect of basic hours were recorded, but there does not appear to be any recording of overtime, even for those periods when the respondent acknowledges that overtime was paid.  The claimant stated that, prior to the withdrawal of overtime except with prior authorisation, overtime was paid “cash in hand”.  No payslips or other records accompanying such payments were produced.  The respondent acknowledged that payments in respect of overtime were made in cash and they were not recorded on the payment summary history.  The explanation given by the respondent for this state of affairs was confused and did not appear to the tribunal to be clear, complete, or satisfactory.  Nonetheless, the tribunal was assured by the respondent that properly maintained records in respect of payments of overtime do exist elsewhere.  Presumably those records have in part formed the basis of returns and accounts submitted by the respondent to HM Revenue and Customs and are available for further inspection by them if requested.

17.	The tribunal heard evidence from one of the catering consultants employed by the respondent to advise the respondent on the business.  When giving evidence, the consultant expressed his views and understanding in respect of a chef’s working time obligations.  These views were based on his experiences when he started out as a chef some years ago.  Unfortunately, the opinions of the consultant on the subject have failed to keep pace with developments in the law in respect of the modern workplace.

Law

18.	Article 190 of The Employment Rights (NI) Order 1996 provides that: “An employee does not have any right to a redundancy payment unless he had been continuously employed for a period of not less than two years ending with the relevant date.”

19.	Under Part XI of The Employment Rights (NI) Order 1996 a compensatory award in respect of future loss of earnings may be made when an employee has been unfairly dismissed.  Article 140(1) provides that, “Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination”.

20.	Article 118(1)(a) of The Employment Rights (NI) Order 1996 provides that the notice required to be given by an employer to an employee who has been continuously employed for a period of one month or more: “is not less than one week’s notice if his period of continuous employment is less than two years”.  

Conclusion

21.	The claimant was first employed at the restaurant in September 2006.  His contract was terminated in January 2007.  At that time he had been employed at the restaurant for fewer than six months.  Potential entitlement to a statutory redundancy payment arises upon completion of two years service.  In the circumstances, the claim for a redundancy payment is dismissed.

22.	No written contract of employment was produced at the hearing by either party.  In evidence, neither party asserted that there was a specific term of the contract that might entitle the claimant to more than one week’s notice of termination of his employment.  At the hearing, the claimant did not dispute that he had been paid his week’s pay after he was given notice by the respondent.  The claimant did not have a sufficient period of continuous employment with the respondent to pursue a claim for unfair dismissal.  In the circumstances, the claims for notice pay and future loss of earnings fail and are dismissed.

23.	The availability and terms of any overtime is a matter of the specific employment contract between the parties.  On his own evidence, the claimant understood and accepted the respondent’s change of policy which required prior authorisation from the consultants to ensure payment for any overtime worked.  Even if this represented a variation of the terms of the claimant’s contract of employment, it is clear that the claimant accepted that variation without protest.  In the circumstances, he was bound to follow the agreed procedure for the prior authorisation of overtime.  He failed to do so.  He received clear warning of the potentially harsh application of this rule when his first claim for overtime under the new regime was not paid in full.  Later claims were not paid at all. In continuing to work overtime without prior authorisation the claimant placed himself at risk that he simply would not be paid.  It is unfortunate for the claimant that, although the respondent benefited from the unauthorised overtime, he chose to stick rigidly to the terms of the contract when it came to payment.  

24.	In all the circumstances the claimant has failed to prove his entitlement to be paid in respect of the disputed overtime and that claim is dismissed.

Chairman:		

Date and place of hearing: 14th September 2007 at Belfast

Date decision recorded in register and issued to parties: