LAWmail September 2009

Tribunal Update

Application for Strike Out Granted Mrs Freitas (“the “Applicant”) was employed by Empire Catering (the “Respondent”) to work at its café in Grand Marche as a Play Area Assistant from 25th November 2002 to 2nd August 2008.

The Applicant had applied to the Respondent for one week’s holiday in June and another in December. Her June holiday was approved however December’s was not as the Respondent did not expect to be managing the Play Area at that time. At the hearing, the Tribunal heard that as the weeks holiday in December had been turned down, the Applicant decided to add this to her approved June holiday taking an extra days off without permission.
The Applicant gave 4 weeks notice to the Respondent at the beginning of July, which the Respondent advised was too much as he did not have a firm date for the transfer of the Play Area back to the Co-operative Society (the “Co-op”); the Respondent advised that he would accept two weeks notice in due course. The Co-op gave notice of the transfer date of the Play Area to the  Respondent on 17th July 2008. The Applicant then gave the Respondent two weeks notice with an intent of leaving the employment on 2nd August 2008 to go to work for the Co-op. The Applicant worked for the rest of the month of July and was paid on 29th July 2008 for two weeks work.

The Applicant asked the Respondent why she did not receive more than 2 weeks in her last pay as she had worked the entire month; she was told that there were no other monies outstanding. The Applicant then decided not work to the end of her notice i.e. until 2nd August 2008. On 4th August 2008, the Applicant started to work for the Co-op as a Play Area Assistant as they had taken back the management of this area by that date.
The Applicant complained to the Tribunal that she was owed two weeks notice pay (1st complaint) and that she was also owed hours of pay as she had frequently worked through lunch breaks and other breaks had not been given to her (2nd complaint made at the hearing). The Tribunal found that the Applicant was mistaken in her claim of being owed 2 weeks wages by the Respondent.

The Applicant admitted that she had taken a total of eleven days unauthorised leave during June and July, was 30 minutes late for work on 14th July 2009, as well as taking 3.5 days sick leave (the Respondent does not pay sick leave). The Respondent, as her employer, is entitled to recoup these monies and as such was correct in setting off the hours this time represented from the hours actually worked in July 2008 or in not making a payment as appropriate. The Tribunal made no award in respect of these 2 weeks.

The Tribunal found the Applicant’s 2nd claim to be vexatious in nature stating that she had had over four months to amend her application to the Tribunal to include this claim but had failed to do so. Also that she did not complain to management about this issue during her employment and it would be very difficult to prove now. It noted that during her employment the Respondent had made every effort to ensure that her position was protected and had been tolerant towards the amount of time off work due to an existing medical condition.
The Tribunal found that the 2nd claim was a vexatious one and ordered that it be struck out.