Kitchen porter’s £10k ‘typo’ claim gets the chop

Thursday 09 November 2017

A kitchen porter has been told by a tribunal that he cannot claim more than £10,000 in ‘unpaid wages’ due to a typo in his contract that would have seen him paid more than his boss.

Alfredo Da Costa Rebelo was working at a restaurant, which was bought by Lorhans Limited in 2010.

The new employers agreed to keep existing employees’ basic wages at the same level, but Mr Rebelo’s new contracts saw him placed on a salary of £324 per week.

This would have seen him earn more than his seniors, including the restaurant’s head waiter, restaurant manager and even one of the directors of the company.

Mr Rebelo never actually earned this sum – instead, he was paid £298.80 for a 48-hour week, plus occasional overtime. By 2013, however, his work shifts dropped to just three days per week, meaning that he got paid £149 plus overtime.

Unite the Union got in touch with his employers in August of that year to query the pay difference. Lorhans simply responded that there had been an typo in the 2010 contract and explained the reduction in hours. In June the following year, they received an additional question from a law firm, but the same explanation was offered. Moreover, they said that they had clarified the situation with Mr Rebelo and apologised to him.

While they thought that their responses had been adequate, Mr Rebelo maintained that he was entitled to this pay.

He took the case before the Employment and Discrimination Tribunal in October. The claim was initially made in 2015 alongside allegations of discrimination, but these were later dropped and only the unpaid wages claim retained. 

In witness statements and evidence under oath, Mr Rebelo claimed that Mr Hiller had taken advantage of his poor English, and that he had worked longer hours than he had been paid for, including on Sundays. He said that he had complained to his colleagues about this, but none had been willing to help.

Mr Hiller denied this. He stated that Mr Rebelo was usually sent home early with no reduction in pay when the restaurant was quiet. Moreover, he said that the mistake in the contract, which had seen him accidentally awarded the head waiter’s salary, had gone unnoticed for some years because Mr Rebelo had never given it back. Despite this, he had always been paid the correct amount. 

One former employee named Mr Soup claimed that Mr Rebelo had not worked many Sundays with him, while another called Mr Mattioli said that he had never grumbled about his wages.

In the end, the Tribunal did not find in favour of Mr Rebelo and declined to award him the £10,648 he claimed he had lost out on or any other sum.

“Mr Rebelo did not approach his employer with a query or complaint about his wages for some three years.  Whilst we accept that there was a language barrier Mr Rebelo was able to take advice from a union and from a lawyer, and was able to instruct them to write to Mr Hiller.  Those complaints having come to nothing, Mr Rebelo continued working for the business until it closed… We find that no sums are due to the Claimant and we dismiss his claim,” the panel concluded.