Former café assistant wins unfair dismissal claim

Tuesday 16 February 2021

A café assistant, who believed she had been sacked as "revenge" for not wanting to change her starting time, has been successful in her claim for unfair dismissal compensation.

Maria Martins was given an adjusted award of £329.40 for her dismissal by Design Food Ltd following a judgment by Jersey's Employment and Discrimination Tribunal, although three other claims relating to her employment and pay failed.

Appearing before Advocate Claire R G Davies, Ms Martins claimed that she had been unfairly dismissed by the company that she had worked for from May 2018 to February 2020.

The tribunal heard that Ms Martins did not accept the dismissal was to do with redundancy as claimed by Gino Risoli, the director of the company.

PIctured: Ms Martins worked at the cafe for nearly two years.

She argued that her notice should not have been given to her by her manager Eduardo Serra, rather than Mr Risoli, and that there had been no proper redundancy procedure.

In addition, she claimed that she was entitled to holiday pay, that the employer had failed to pay her double time or a paid day off for three bank holidays worked, and that she had not been presented with proper terms and conditions or payslips. 

The tribunal heard that she had been hired following a conversation with Mr Risoli, where she understood she would be paid £8 and not be paid holidays. She initially worked a 36-hour week with regular hours.

Pictured: Though the tribunal recommended Mr Risoli improve his bookkeeping, they conceded that Ms Martins had been provided with terms of employment.

She claimed that she was told by Mr Serra that Mr Risoli did not give payslips, and that when she asked Mr Risoli for a contract, he had declined, saying he could dismiss an employee any time he wanted. 

In June 2019, she requested and was given a pay rise, meaning that, with rolled up holiday pay included, she was now earning £8.80 per hour. However, she noted that Mr Risoli had at one point asked her if “she would prefer to have a pay rise or a job.”

Following a Christmas holiday she had taken at short notice in 2019, in January 2020, Ms Martins said that Mr Risoli had told her she would now only work four hours per day, which she agreed to. 

When he told her to come in at 09:00 the following day, though, she said this was earlier than discussed and told him she had other plans and wouldn’t be coming in at that time. 

A few days later, she was given her notice by Mr Serra, which she felt was “revenge” from Mr Risoli for not wanting to change her starting time, whilst also criticising him for getting Mr Serra to deliver the news instead of himself.

Pictured: Ms Martins was awarded for unfair dismissal, but all other claims failed.

She added that she did not return for her week’s notice period, as she was too upset to do so.

In contrast, Mr Risoli argued that she had been made fully aware of the fact work was in short supply, and that reasonable efforts had been made to keep her on despite the eventual dismissal. 

The tribunal was provided with employment particulars from May 2018, which were not signed by Ms Martins but signed by Mr Risoli, where the terms state she would be paid the statutory minimum wage – though she was paid slightly more – and that it was a variable zero hours contract with hours limited by the availability of work.

It also stated that a 4% hourly rate would be paid in respect of holiday pay, due to the variable nature of the hours.  

He said that the business had the help of an external bookkeeper who produced payslips – he said they took the form of a long strip of paper, though did acknowledge they could have been late if the bookkeeper was late.  

On the subject of the dismissal, Mr Risoli said that he had discussed with his staff in late 2019 warning them that work could be impacted by a decline in trade, but that he had tried to keep Miss Martins on for fewer hours per day, which he said she felt was unfair. 

He continued by outlining that a last-minute Christmas trip that Ms Martins took had caused significant problems for the business during the week, and that he had to provide cover in her absence. 

He added that this trip had “undermined” his confidence in Ms Martins, and that he subsequently felt less inclined to maintain efforts to keep her as an employee. 

Mr Risoli also said that in the New Year he had warned Ms Martins that business was not looking good and that her employment may not be tenable, stating that, although there was no written warning, everyone understood. 

After considering other options, he decided to terminate the employment, getting his manager, Mr Serra, to go through with it. 

He claimed he was unwell at the time and could not go through with it himself, but had planned to speak with Ms Martins during the notice period, which she did not attend work for.

In its conclusions, the tribunal found that Ms Martins was provided with written terms and conditions of employment, as well as itemised pay slips. 

They did acknowledge, however, they were not always provided weekly and may not have been easily recognised as such, adding that the company should “review its administrative practices.”

They also found that Ms Martins was given written terms and conditions of employment, "albeit... she may have mislaid them," and that "she knew the main terms of her employment."

In terms of pay, they found she was paid 4% of the rolled up holiday pay, but stated that there was “insufficient evidence” to make a finding on whether the bank holidays were worked.

Though these three claims failed, they concluded on the dismissal that “the termination process should have been handled differently”, stating there “should have been a discussion with Ms Martins and she should have been given the opportunity by Mr Risoli to express her views and be heard.”

The tribunal added in its judgment that “there should have been something in writing”, and noted that: “Mr Risoli had begun to lose his objectivity and to dislike [Ms Martins].” 

However, the tribunal acknowledged that Ms Martins would have most likely been made redundant, just slightly later, even if a fair process had been followed, and also took into account that she had not served her one week notice period.  

For this, they reduced the eight weeks of pay she was claiming for down to £329.40.