Lee v Karen Ka Yee Tsang (Harmony Re... [2011] NIIT 02731

THE INDUSTRIAL TRIBUNALS

CASE REF: 2731/10

CLAIMANT: Aaron Meng-Jone Lee

RESPONDENT: Karen Ka Yee Tsang (Harmony Restaurant)

DECISION

The unanimous decision of the tribunal is that the claimant is entitled to the sum of £3,722.98 for holiday pay, £1,040.00 in respect of unnotified deductions, a compensatory award of £20,162.02 (to include a statutory uplift) in respect of automatically unfair dismissal together with a basic award of £1,520.00, £250.00 for loss of statutory rights and £10.00 for an unlawful deduction of wages, totalling £26,705.00.

Constitution of Tribunal:

Chairman: Mr U A Crothers

Members: Mrs J McCormick

Mr R Hanna

Appearances:

The claimant appeared and was assisted by Ming Ming Lim (who also acted as interpreter).

The respondent was present but had not presented a response to the claimant’s claim.

The Claim

1. The claimant claimed that he had been unfairly dismissed, that he was entitled to a sum for unlawful deduction of wages, and to holiday pay under the Working Time Regulations. The claimant also claimed that he had not been provided with itemised pay statements.

The Issues

2. The issues before the Tribunal were as follows:-

(1) Whether the claimant was unfairly dismissed.

(2) Whether the claimant was entitled to a sum for unlawful deduction of wages.

(3) Whether the claimant was entitled to an amount for holiday pay.

(4) Whether the respondent failed to provide itemised pay statements to the claimant and, if so, whether the claimant is entitled to a remedy for such failure.

Background

(i) The Tribunal Office wrote to the respondent on 23 November 2010 enclosing a copy of the claimant’s claim and a pack entitled “Responding to a claim to an Industrial Tribunal”. The correspondence also provided general guidance to the respondent in relation to furnishing a response to the Tribunal and stated that:-

“If you fail to provide the required information as set out in the response form, your response cannot be accepted and you will not be entitled to resist the claim”.

(ii) In correspondence to the Tribunal dated 14 February 2011, the respondent’s Solicitors, MacAllister Keenan and Company Solicitors stated the following:-

“Dear Sirs

Re: Karen Ka Yee Tsang

2731/10

Please note we are now instructed in the above matter and we are aware that our client was too late in lodging a Form IT2 therefore the matter is to proceed by way of formal hearing on 23 March 2011.

We have advised our client that as the Form IT2 was not lodged within the required time frame that essentially she has no defence to this matter and it would proceed accordingly. We are unsure as to the admissibility of the enclosed documents which may or may not be of assistance to the Tribunal but we enclose nonetheless copy P60 and P45 Part 1A and letter from H.P&A Associates for consideration.

We would also advise that Mrs Tsang’s English is not particularly good and if she is to be allowed to play any part in proceedings we would suggest that an interpreter would be required. Her dialect is Cantonese.

Yours faithfully

MacAllister Keenan and Co”

(iii) Although the respondent was not entitled to take part in the proceedings before the Tribunal, she was afforded time, together with the claimant, to liaise with the Labour Relations Agency.

Sources of Evidence

3. The Tribunal heard evidence from the claimant and considered relevant documentation pertaining to his claim.

Findings of Fact

4. Having considered the evidence insofar as same related to the issues before it, the Tribunal made the following findings of fact on the balance of probabilities:-

(i) The claimant was employed by the respondent from 20 April 2008 until
24 October 2010, being the effective date of termination of his employment. At that time he was earning £480.00 per week (gross), (£400.00 net).

(ii) Upon arriving at the respondent’s premises on 21 October 2010, at approximately 11.45 am, the claimant found the entrance into the parking area blocked by four bins which apparently had been recently emptied. He had to clear the area in order to park. One bin had in fact not been emptied due to its wheels being broken and it took the claimant some time to push it to the side. This meant that he arrived in the restaurant some fifteen minutes late. The respondent stated to him that £10.00 would be deducted from his week’s wages for being 15 minutes late. The claimant explained to the respondent that he was pushing bins out of the way and thought that she was joking in her remark concerning the wage deduction. However, when the claimant received his wages on Sunday 24 October 2010, he discovered that they had been reduced by £10.00. He then enquired as to why this was the case and was told by the respondent that it was because he had been fifteen minutes late on 21 October 2010. The claimant again explained to the respondent why he was late and impressed upon her that he felt it was unfair to make a deduction from his wages for no reason. The respondent refused to listen to the claimant and told him that there was no excuse for being late. The claimant again tried to reason with her and pointed out that she should not be making any deduction in light of the fact that he had worked overtime on many occasions until 3.00 am in the morning, when he should have stopped working 11.00 pm. He received no overtime payment for any work beyond 11.00 pm. Furthermore, the claimant worked overtime during lunch hours with no additional payment or time off. The respondent refused to acknowledge that she should have paid the claimant for additional hours that he was working or give him time off in lieu.

(iii) As a result of the disagreement between the claimant and the respondent on 24 October 2010, the respondent dismissed the claimant without warning. Her partner subsequently arrived and told the claimant to leave and threatened to hit him if he did not do so. He also informed the claimant that he should watch his back and that if he ever saw him in Belfast he would hit him and break his legs. At this point the claimant felt threatened and had no option other to leave the premises in front of all the staff. The claimant had not been afforded any holidays since the commencement of his employment and Christmas Day was the only day when he was afforded time off on full pay. He worked a six day week and did not work on Tuesdays.

(iv) The Tribunal accepts that, despite his requests, the claimant never received any payslips from the respondent. The respondent also refused to provide the claimant with a copy of his contract of employment.

(v) The Tribunal also heard evidence regarding the claimant’s alleged loss. Due to permit restrictions he was not allowed to claim Job Seekers Allowance. His permit allowed him to work for five years with the respondent. However, he is being placed in difficulty due to the termination of his employment. The claimant has however, managed to obtain part-time employment as from
1 January 2011 at the rate of £118.88 net per week. The claimant is claiming holiday pay from April 2008. The Working Time Regulations allow 4.8 weeks in the leave year April 2008 to March 2009 and 5.6 weeks in the leave year April 2009 to March 2010 and onwards.

The Law

(1) The Statutory Dismissal and Disciplinary Procedures which must be carried out by an employer are set out in Schedule 1 to the Employment (Northern Ireland) Order 2003.

(2) Failure by an employer to comply with the statutory procedures means that the dismissal will be deemed to be automatically unfair in accordance with Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). Furthermore, by virtue of Article 17 of the 2003 Order, any compensatory award will (save an exceptional circumstances) be increased or decreased by between 10% and 50%. In deciding whether it is just and equitable in all the circumstances to increase the uplift to a figure between 10% and the maximum 50%, the Tribunal must exercise its discretion by reference to some particular facts and circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the employer should be penalised further (McKindless v McLaughlin (2008) IRLR 678 EAT).

(3) Under the Working Time Regulations 1998 (as amended) employees can only claim for unpaid statutory holiday entitlement for the year in which the entitlement falls, and claims must be brought within three months of the date on which the right arises (Regulation 30). For an unlawful deduction claim in respect of past years to succeed in accordance with the provisions of the 1996 Order, there must be an unbroken chain of years during which holiday pay is not paid. If that chain is broken, any claim for unlawful deductions for previous years will be out of time.

(4) By virtue of Article 40 of the 1996 Order, an employee has the right to be given by his employer, at or before the time to which any payment of wages or salaries made to him, a written itemised pay statement. Article 44(4) provides that where a Tribunal finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of application for the reference (whether or not the deductions were made in breach of the contract of employment), the Tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.

(5) Article 44(5) provides that a deduction is an unnotified deduction if it is made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by Article 40 or 41 of the 1996 Order.

Submissions

5. The claimant did not make any submissions.

Conclusions

6. Having applied the relevant principles of law to the facts as found, the Tribunal concludes as follows:-

(i) In relation to the period 20 April 2008-20 April 2009, the claimant is entitled to £49.19 x 28 = £1,377.32 holiday pay. The claimant is entitled to 26 x 49.19 (£1278.94) for the period 20 April 2009-1 April 2010, and 66.67 x 2 up to 20 April 2010 (£133.34) In respect of the period 20 April 2010-24 October 2010,

the claimant is entitled to £66.67 x 14 = £933.38, making a total in respect of holiday pay of £3,722.98.

(ii) In relation to the respondent’s failure to provide written itemised pay statements, the claimant is entitled to 13 weeks x 80 = £1,040.00 being the sum in respect of unnotified deductions.

(iii) The Tribunal is satisfied that by virtue of non-compliance with the minimum statutory procedures, the claimant was automatically unfairly dismissed. He is therefore entitled to a basic award of £380 per week (being the statutory maximum at the effective date of termination). Owing to non-compliance with the minimum statutory procedures, the claimant is entitled to an increase in the basic award from 2 weeks pay to 4 weeks pay = £1,520.00.

(iv) The Tribunal is also satisfied that the claimant’s loss from 24 October 2010 until the hearing on 23 March 2011 is £400 x 21 = £8,400.00 minus 11 weeks (from 1 January 2011) at £118.88 per week = £1,307.68 making a net loss of £7,092.32. The Tribunal also concludes that it is just and equitable to award the claimant a further compensatory amount in respect of future loss of 26 weeks x 281.12 = £7,309.12. The Tribunal is further satisfied, in light of its findings of facts surrounding the circumstances and blatant manner of the claimant’s dismissal, and the respondent’s absolute failure to invoke any of the minimum procedures, that it is just and equitable to award an uplift of 40% on the compensatory award of £14,401.44 = £5,760.58, making a total compensatory award of £20,162.02. The claimant is further entitled to an amount for loss of statutory rights of £250.00 and £10.00 in respect of an unlawful deduction from wages on 21 October 2010. The total award to the claimant is as follows:-

Compensatory Award to include 40% uplift £20,162.02

Loss of Statutory Rights £ 250.00

Unlawful Deduction from Wages £ 10.00

Holiday Pay £ 3,722.98

Failure to provide Written Itemised Pay Statements £ 1,040.00

Minimum Basic Award of 4 Weeks £ 1,520.00

Total Award £26,705.00

7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 23 March 2011, Belfast.

Date decision recorded in register and issued to parties:

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Industrial Tribunals Northern Ireland Decisions