Café worker wins unfair sacking case... again

Thursday 26 January 2023

A café worker who secured thousands in compensation for unfair dismissal has won the same case a second time after his former employer persuaded the Employment Tribunal to hear his case a second time.

The original judgment, which saw Design Food ordered to pay employee of eight years Antonio Vieira around £15,000 for unfair and wrongful dismissal, was set aside after the company claimed to be unaware of the final hearing when judgment was given against it by default.

Deputy Chair of the Employment and Discrimination Tribunal, Advocate Ian Jones, described this as "a procedural irregularity or anomaly", which he said he viewed "somewhat sceptically" when the company first applied to the tribunal to have the judgment set aside.

However, he concluded that it would be "in the interests of justice" for a full hearing to take place.

At the second hearing in December, Design Food claimed that Mr Vieira was dismissed following an incident the year before when he was alleged to have "barged in" to a flat above the café where he was employed and verbally abused Gino Risoli, who appeared before the tribunal to represent the company.

Pictured: As Design Food had advanced a defence to each of the claims, Advocate Ian Jones decided it would be fair to hear the case again.

But Mr Vieira's representative argued that this account had been concocted in response to Mr Vieira’s claim for unfair dismissal.

The Deputy Chair said he found Mr Vieira and a fellow employee – who though present was unable to corroborate the allegations –> to be "credible witnesses who dealt with cross-examination with poise".

In contrast, Advocate Jones said Mr Risoli gave him "the impression that he was prepared to say whatever he felt was necessary in the given moment."

He continued: "Suffice it to say that I preferred the evidence of the claimant and I was not persuaded that he had conducted himself as alleged and I was certainly not persuaded that he had done anything that amounted to gross misconduct - I was persuaded by the submission of the claimant that Mr Risoli’s account was engendered by and a response to the claim being filed for unfair dismissal."

Mr Vieira was awarded the equivalent of four months’ salary for unfair dismissal, 10 weeks’ for wrongful dismissal, seven days’ for claims relating to itemised pay statements and terms of employment, seven days’ for unpaid bank holiday pay, and one day’s salary for unpaid wages.

A claim for payment for parental leave was dismissed because no written request was made in accordance with the requirements of the Employment Law.

Previously, the awards together had amounted to around £15,000.

Advocate Jones noted in his written judgment that there appeared to be a dispute between the parties about Mr Vieira’s weekly wage – the claimant arguing that he was paid £50 more than the company’s calculation of £460 – which the tribunal had not had the opportunity to consider.

He said he hoped this could be resolved between the parties but that, if not, the tribunal would sit again to resolve the matter.