Balcetis v R C Sweeney and M E Sweeney, T... [2011] NIIT 02780

THE INDUSTRIAL TRIBUNALS

CASE REF: 2780/10

CLAIMANT: Aristidas Balcetis

RESPONDENT: R C Sweeney and M E Sweeney, T/A Franco’s Restaurant

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed, that he did not receive written particulars of employment and did not receive any holiday pay for the period that he worked. Consequently, the tribunal orders the respondents to pay the claimant the following sums:-

Unfair Dismissal =	£5,243.07
Failure to provide written particulars =	£337.92
Holiday Pay =	£308.69

In total, the respondent is ordered to pay the claimant the sum of £5,889.68. The tribunal dismissed the claimant’s claim that he had been discriminated against on the grounds of his race.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr J Devlin

Mr D Walls

Appearances:

The claimant was represented by Mr Joe Kennedy, Barrister-at-Law, instructed by Fahy Corrigan Solicitors.

The respondents were formerly represented by the firm of Cooper Wilkinson but prior to the hearing, this firm informed the tribunal in writing that it would not be attending on behalf of the respondents and that the respondents also did not intend to defend the case at the hearing.

SOURCES OF EVIDENCE

1. The claimant gave evidence on his own behalf and Ms Erika Dimsiene also gave evidence on his behalf. Additionally, the claimant put forward some documents to support his case.

THE CLAIM AND THE DEFENCE

2. The claimant claimed that he had been unfairly dismissed, that he was owed arrears of holiday pay and that he had not been provided with written particulars of his employment. He also contended that he had been discriminated against on the grounds of his race. The respondents denied these claims in their written response.

RELEVANT LAW

3. The right to receive employment particulars is contained in Article 34 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”). The right not to suffer unauthorised deductions is contained in Article 45 of this Order and the right not to be unfairly dismissed is contained in Article 126 of this Order.

The right to receive paid holidays is contained in Article 7 of the Working Time Regulations (Northern Ireland) 1998.

THE FACTS

4. The claimant is of Lithuanian nationality.

5. Since arriving in Northern Ireland he has been working for Marks and Spencer and Translink.

6. The claimant sought an additional job and commenced employment with the respondents on 22 June 2009. He worked there approximately 15 to 20 hours per week between 8.00 pm and 12.00 am (Monday to Friday) and on a weekend from 2.00 pm to 12.00 am. The claimant worked as a kitchen assistant but also occasionally cleared tables in the restaurant. In general he was under the direction of the chef, but also received orders from Mr Emmett Sweeney.

7. The claimant stated that he had not received any written statement of particulars of employment and had not received any holiday pay at all from the respondent. When he queried this with the respondent’s bookkeeper, he was told he was not entitled to any.

8. The claimant was required to check the rota to see what shifts he was to perform in any working week. Work rotas were displayed each Wednesday in the respondent’s restaurant.

9. The claimant received payslips which showed deductions of National Insurance and tax. However, when he received his P60 in April 2010 he checked it with the local tax office and was told that he was on the wrong tax code. He tried to raise this with his employer but his efforts did not meet with any success.

10. Gradually, the claimant found that he was not being included in the work rotas for the restaurant. He queried this and was told that it was a quiet period. Mr Emmett Sweeney told the claimant to keep checking. Although the written response of the respondents contended that the claimant did not work every week and did not turn up or request work for some weeks, this was contradicted by the claimant’s direct evidence which was to the effect that he had repeatedly turned up at the restaurant to check the rota and had been told to keep doing so by Mr Emmett Sweeney.

11. In or around the start of September 2010, the claimant found that additional personnel had been employed and accordingly the claimant regarded himself as dismissed and asked for his P45.

CONCLUSIONS

The Race Discrimination Claim

12. To mount a successful discrimination claim the claimant has to prove such primary facts from which an inference of discrimination can be drawn (on the relevant prohibited ground) which in this case is race. Once this point has been reached the onus of proof will shift to the respondents.

The question the tribunal has to consider is whether the claimant (a person of Lithuanian origin) was less favourably treated by the respondents than workers of Northern Irish origin on the basis of his race.

This involves a comparison of the treatment of Northern Irish and non-Northern Irish workers.

The basis of the claimant’s claim for discrimination was that he believed a
co-worker of Northern Irish origin was being paid holiday pay and he was not. The claimant was not able to provide the name of this worker and the only evidence of the alleged difference in treatment was the claimant’s evidence relating to holiday pay. This could be categorised as “heresay” evidence at best. The claimant’s witness, Mrs Dimsiene, was not able to add any information about the comparator.

The tribunal does not consider that evidence of what was allegedly said to the claimant by a fellow worker of Northern Irish origin, whose name the claimant cannot even remember, is of sufficient weight to allow the tribunal to find primary facts from which an inference of discrimination could be drawn.

A comparator is a person who is in the same situation, or one that is not materially different to that of the claimant. The tribunal considers it does not have enough information to find that a difference in treatment has been established. Neither does it have enough evidence on the basis of which a hypothetical comparator may be constructed.

There was no objective evidence to show that Northern Irish workers were differently treated to workers who were not of Northern Irish origin. Consequently, the claim for discrimination is dismissed.

The Other Claims

13. However, the tribunal finds that the claimant’s claims that he did not receive written particulars of employment or holiday pay contrary to Article 34 and Article 45 of the Order are well-founded. By virtue of Article 27 of the Employment Rights (Northern Ireland) Order 2003, the failure to provide written particulars to an employee contrary to Article 34 of the 1996 Order carries a higher penalty of four weeks net pay. The claimant calculated his net pay as being £84.48 per week based on an average of his last 12 weeks pay from the respondents:

£84.48 x 4 =

£337.92

The respondents are ordered to pay this sum to the claimant as compensation for their failure to provide him with written particulars, as the tribunal considers in all the circumstances of the case that it is just and equitable to award the higher rate.

14. As the claimant worked a six day week, he is entitled to 33.6 days per year (reduced to the overall maximum of 28 days). As the claimant was not allowed any leave at all we have deemed his leave year to start on 1 October 2009. We find he is entitled to 11/12 of 28 days for the leave period 1 October 2009 - 1 September 2010.

Consequently, he is entitled to be compensated for 28 x 11/12 = 25.66 days at the rate of 12.03 per day = £308.69

To reach a daily amount of pay:-

84.48 x 52	=	£12.03
365

The respondents are ordered to pay this sum to the claimant.

15. The tribunal also concludes that the claimant was unfairly dismissed. The respondents in their response tried to argue that the claimant was just a casual worker and not an employee. In reaching the decision that the claimant was an employee the tribunal looked at the following tests:-

1. Did the worker undertake to provide his own work and skill in return for remuneration?

2. Was there a sufficient degree of control to enable the worker fairly to be called an employee?

3. Were there any other factors inconsistent with the existence of a contract of employment?

The tribunal considers that it can answer the first two questions in the affirmative. The claimant was providing work in return for pay and it was plain that he was under the direction of the chef in the restaurant or Mr Emmett Sweeney. In relation to the third test, the tribunal does not find that there were any other factors that were inconsistent with the existence of a contract of employment. This was a very different situation to what pertained in the cases of Readymix Concrete v Latimer [1968] 2QB 497 and Hall (HM Inspector of Taxes) v Lorimer [1994] IRLR 171. The first case involved a person who provided his own lorry to carry out the company’s work and, independent hauliers provide their own lorries, employees do not. In the second case, the claimant was a freelance vision mixer who worked for a number of television production companies. Again, whilst the claimant worked for Marks and Spencer and Translink, this was not on a freelance basis and these were daily jobs in connection with which he worked a certain number of hours in each occupation per day. Certainly, if the claimant was offered work he was expected to take it. There was no objective evidence to counter this conclusion. Up until the time the claimant queried his tax, he was being given regular work from the respondent. As such, we do not consider that a lack of mutuality has been established in this case to render the claimant as a casual worker rather than employee. As he was not given work we find he was dismissed.

CALCULATION OF COMPENSATION - UNFAIR DISMISSAL

16. At the time of termination which the tribunal finds is 1 September 2010 the claimant had one completed year of service and it occurred when he was in the age band of 41 to 60. Therefore his multiplier is 1.5. At termination of employment the claimant’s gross weekly wage averaged over the previous 12 weeks was £89.90 gross. The computation is as follows:-

£89.90 x 1 x 1.5 =

£134.85

However, we consider that the non-completion of the statutory dismissal procedure was due to the fault of the respondent. Therefore the claimant’s basic award is uplifted to four weeks gross pay pursuant to Article 17 of the Employment (Northern Ireland) Order 2003. Therefore his basic award is computed as follows:-

£89.90 x 4 =

£359.60

COMPENSATORY AWARD

17. The claimant’s net weekly pay is based on his last 12 weeks of paid employment and has been calculated at £84.48. The immediate loss period runs from 1 September 2010 to 10 August 2011. This is a period of 49 weeks, therefore his immediate loss is computed as follows:-

£84.48 x 49 weeks =

£4,139.52

No award has been made for future loss as the claimant has successfully mitigated his loss by obtaining extra hours from his other two employers.

Furthermore, we are uplifting the award by 10% to reflect the fact that it was the respondent’s fault that the statutory dismissal procedure was not completed pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.

£4,139.52 x 10% =	£413.95

£4,139.52 + 413.95 =	£4,553.47

LOSS OF STATUTORY RIGHTS

18. We award £330.00.

SUMMARY OF UNFAIR DISMISSAL COMPENSATION

Basic award =	£359.60

Compensatory Award =	£4,553.47

Loss of Statutory Rights =	£330.00

Total of Unfair Dismissal Compensation =	£5,243.07

19.

20. As the claimant has not claimed any benefits no question of recoupment arises.

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

Chairman:

Date and place of hearing: 3 and 4 May 2011, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Balcetis v R C Sweeney and M E Sweeney, T... [2011] NIIT 02780_10IT (23 August 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/2780_10IT.html Cite as: [2011] NIIT 02780_10IT, [2011] NIIT 2780_10IT

Industrial Tribunals Northern Ireland Decisions