THE INDUSTRIAL TRIBUNALS

CASE REF:	899/15

CLAIMANT:			Roy Mudima Chawatama

RESPONDENT:		W Van Der Westhuizen t/a Lagan Backpackers

DECISION 
The unanimous decision of the tribunal is that the claimant is entitled to the sum of £343.50 in respect of the minimum wage claim.  However, as recorded in paragraph 7 of this decision, the remaining claims are dismissed.

Constitution of Tribunal:
Employment Judge:		Employment Judge Crothers	
Members:				Mr T Carlin
					Mr A Burnside

Appearances:

The claimant was present and represented himself.

The respondent was present and represented himself.

AMENDMENT

1.	The name of the respondent was amended to that shown above.  Although Lagan Backpackers Hostel has been sold, the respondent accepted any liability arising from this case.  

THE CLAIM

2.	The claimant claimed that he had been unfairly dismissed for asserting a statutory right.  In addition, his claim form to the tribunal, presented on 06 May 2015, contained a claim for holiday pay.  The claimant also alleged a breach of the National Minimum Wage Act 1998, and presented a schedule of alleged loss to substantiate this.  He also claimed that the respondent had failed to provide wage slips.  The respondent contested all allegations.  

THE ISSUES

3.	The issues before the tribunal were whether the claimant had been unfairly dismissed for asserting a statutory right, whether he was due an amount for holiday pay, an amount for breach of the National Minimum Wage Act 1998, and for the alleged failure of the respondent to provide wage slips.  

SOURCES OF EVIDENCE

4.	The tribunal heard evidence from the claimant and the respondent and was assisted by documentation presented to it.  

FINDINGS OF FACT

5.	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)	On 5 March 2015 the claimant applied to Lagan Backpackers for a job.  However on 30 March 2015 the manager, known as Irene, emailed the claimant in the following terms:-

“Hi Roy,

Sorry it took me so long to reply.  We are actually looking for managers/ assistant manager.  I won’t really have time for an interview.  Also from our experience, it always works better if we see the person working in action.  If you are interested, you can come for a three-week trial.  During the trial it will be 3 days a week for £50 including accommodation.  If we are happy with your performance, we can then offer you either the assistant manager for £150 a week for 3.5 days or £400 a week plus bonus for a manager (you would have to train your own staff to get yourself days off).

If you have any questions, feel free to contact me at ..............

Cheers,
Irene”

(ii)	The tribunal is satisfied that the claimant understood the terms of employment which were being offered to him.  Had he performed satisfactorily during the three week trial period, he might have been offered an assistant manager post at £150 a week or a manager’s post at £400 per week.  The tribunal is also satisfied that the claimant struggled to perform his duties during the trial period.  He was slow in exercising computer skills in relation to bookings and was unsatisfactory both in the checking in process which involved dealing with customers, and in staff management.  In his statement, adopted as evidence before the tribunal, the claimant referred to a conversation with a management staff member, Glynn Wright, on 
6 April 2015 and, on 7 April 2015 with Irene in relation to being paid £50 per week with accommodation.  He claimed that he pointed out that he did not require accommodation and, in his conversation with Irene, that when £50 per week was divided by the total number of hours worked, he would be paid under the minimum wage.  He further claimed that Irene had stated that she would look into the issue and that he stayed on for that reason during the trial period.
 
(iii)	However, following a conversation with Irene and the respondent on 8 April 2015, the respondent requested Irene to pay the claimant £150 as he thought that the claimant was trying to improve.  He was again paid £150 for the second week of the trial period although the respondent claimed that at this stage he was not even fit to be a volunteer within the premises.  It was also clear to the tribunal that Irene was quite sympathetic to the claimant and at one stage had informed the respondent that if he improved he could be an assistant manager.  She persuaded the respondent to keep the claimant on for a third week.  However, when he did not improve sufficiently the respondent dismissed him on 18 April 2015, as being of no use to him.

(iv)	The tribunal has no reason to doubt the respondent’s evidence that, as far as he knew, the issue of the minimum wage was not mentioned to him in advance of the claimant’s dismissal.  The tribunal is satisfied that he was not dismissed for asserting a statutory right.  Rather, he failed to perform satisfactorily during the trial period.  Moreover, he would have been paid for the third week had he produced his national insurance number and requisite tax code details.  However these were not forthcoming until 27 April 2015.  Furthermore, there is no reference to the minimum wage issue, in writing, until after his dismissal.  He was also working in a part-time capacity in another job during the trial period with the respondent.  In an email to Irene dated 27 April 2015 the claimant states as follows:

“Dear Irene,

I hope this email finds you well.

I am writing to provide attachments of my UK Resident Card and NI Number reference, and right to work letter from Home Office, as requested a week ago.

Below I have also provided a computation of the total hours I worked, part of which wages payment is still outstanding.  I am making a claim on my wages in recognition of the fact that in the UK National Minimum Wage rates from 1 October 2014 are set at: adult rate (21 years and over) £6.50 per hour.  I am not allowed by law to accept work at less than NMW rate above.  Equally the employer is not allowed by law to give work at less than NMW rate above ...

Payment of wages received to date: £300.00.

Could outstanding wages be paid into bank account: ...................

Do not hesitate to contact me if you need any further information regarding the above issues.

Kind regards
Roy.”

The computation of total hours worked was 99.

(v)	The respondent could not effectively produce wage slips to the claimant in the absence of relevant tax and national insurance details.  In any event there is insufficient evidence for the tribunal to make a declaration in relation to this matter under Article 44(3) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).  

(vi)	There was also insufficient evidence before the tribunal to ground any claim for outstanding holiday pay.  Despite being afforded considerable time to finalise a schedule of loss with the benefit of guidance from the Labour Relations Agency, such a claim was not set out in the Schedule of Loss.   Insofar as there is any claim relating to an alleged failure to provide an initial statement of employment particulars, there can be no remedy afforded to the claimant as the obligation placed upon an employer to give to an employee such a written statement does not apply to an employee if his employment continues for less than one month (Article 241 of the Order).

(vii)	The claimant adopted the schedule of loss, drawn up with the assistance of the Labour Relations Agency, as part of his evidence before the tribunal.  This included an analysis of the payments he alleged were due under the National Minimum Wage Act.

THE LAW

6.	(1)	Article 135A of the Order relates to a claim for unfair dismissal in relation to the national minimum wage provisions.

(2)	Article 45ff of the Order relates to the right not to suffer unauthorised deductions from wages.

(3)	The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, gives the tribunal jurisdiction in relation to breach of contract claims.  Articles 40-44 of the Order relates to the issue of itemised pay statements, references to industrial tribunals, and the determination of references respectively.

CONCLUSIONS

7.	(i)	Having applied the relevant principles of law to the findings of fact, the tribunal is not satisfied, as recorded in the findings of fact, that the claimant was dismissed for asserting a statutory right in relation to the minimum wage.  It finds that the reason for dismissal was due to his unsatisfactory performance during the trial period.  His claim for unfair dismissal is therefore dismissed.

(ii)	Also, as recorded in the findings of fact, there is no basis for a declaration in relation to itemised pay statements or in relation to a statement of initial employment particulars.  There is also insufficient evidence before the tribunal to ground any claim for outstanding holiday pay.

(iii)	The tribunal is however satisfied that the claimant is entitled to payment of £6.50 per hour in accordance with the National Minimum Wage Act 1998.  He worked for 99 hours x £6.50 = £643.50 - £300 already paid by the respondent = £343.50.

(iv)	Except for the above award, the remainder of the claimant’s claims are dismissed.

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

Employment Judge

Date and place of hearing:	28 July 2015, Belfast.

Date decision recorded in register and issued to parties: