Third time unlucky for café fighting order to pay sacked worker's wages

Wednesday 12 April 2023

A café whose owner was described as an "unconvincing witness" has once again lost a battle to avoid paying a former worker more than five months’ wages — in a case which has now come before the Employment Tribunal three times.

Most recently, the Employment Tribunal rejected an appeal by Design Food Ltd against an earlier decision to award employee of eight years Antonio Vieira more than five months' wages.

The original judgment, which saw Design Food ordered to pay Mr Vieira almost £20,000 for unfair and wrongful dismissal, was later set aside after the company claimed to be unaware of the final hearing when judgment was given against it by default.

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.

However, the Tribunal's Deputy Chair, Advocate Jones found Mr Risoli to be "an entirely unconvincing witness."

Therefore, the Tribunal awarded Mr Vieira 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.

Design Food was refused permission to appeal that decision at a recent hearing before Advocate Jones, sitting again, who rejected nine separate grounds of appeal advanced on the company's behalf.

In his written judgment, Advocate Jones noted that these grounds amounted to a difference of opinion over the evidence which had been presented to the Tribunal at the December hearing, when it preferred Mr Vieira's account of the contested events.

Quoting from his judgment on that occasion, Advocate Jones said: "A charitable way to describe Mr Risoli's evidence would be to call it 'confused'. Mr Risoli gave me the impression that he was prepared to say whatever he felt was necessary in the given moment ... he was an entirely unconvincing witness.

"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."

Pictured: Mr Viera was employed by Design Food as a café worker for eight years.

Dealing with the grounds of appeal against those findings, Advocate Jones characterised the approach as being "a challenge to a factual finding of the Tribunal which is not possible unless such a finding is 'obviously wrong' or there was no evidence upon which to base that decision".

"In my view, it was open to me to reject the evidence of Mr Risoli, which I did, and in those circumstances find that there was no gross misconduct on the part of the respondent," he said.

After having their appeal dismissed, Design Food Ltd remains bound by the Tribunal's December decision to award Mr Vieira more than five months' wages. The precise amount owed is to be determined after disagreement over the detail of his weekly wage had been resolved.

Advocate Jones noted in his December 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.

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