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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kenny v Hasan Topal t/a Carlitos Itali... [2008] NIIT 970_08IT (22 October 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/970_08IT.html Cite as: [2008] NIIT 970_08IT, [2008] NIIT 970_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 970/08

CLAIMANT: David James Kenny

RESPONDENTS: Hasan Topal t/a Carlitos Italian Restaurant

DECISION

The claimant's claim for unpaid overtime is dismissed.

Constitution of tribunal:

Chairman: Mrs Ó Murray (sitting alone)

Appearances:

The claimant appeared and was not represented.

The respondent appeared and was not represented.

The claim

1. The claimant's claim was for unpaid wages for overtime. The unpaid sum was alleged to have been outstanding following the claimant's termination of his employment.

The issue

2. The issue was whether the claimant had worked the extra hours he alleged and if so the number of hours he worked and the sum due in respect of those hours worked.

Sources of evidence

3. The tribunal heard evidence from the claimant and his partner, Ms Dickson; heard evidence from the respondent, and had a small bundle of documents.

Findings of fact

4. The claimant worked as an assistant chef in Carlito's Restaurant from 3 June 2008 until he left on 3 July 2008. The claimant's work was on the pizza station preparing pizzas. The claimant would attend work before opening hours to do some preparation before the restaurant opened for lunch and further preparation in the period in the afternoon when the restaurant closed between lunch and dinner. The claimant would also help clean up the kitchen and store after last orders at night, and, indeed, the clean-up started after 9 pm when orders slowed down. Other members of staff including the owner and waiting staff helped in the clean up-at night.
5. The restaurant opening hours were 12 to 2.30 pm and 5.30 to 10.00 pm. During the week the restaurant served approximately 10-15 meals and 40-45 meals in the evening and at the weekend served on average 150 meals in a day.
6. The claimant's contract was that he be paid £250 gross for a 45 hour week. In the week before the claimant left the respondent advanced him £500 out of his pay because the claimant had to pay his rent. The respondent paid a further £250 in the claimant's last week of work because the claimant wanted another advance of salary. The claimant unexpectedly did not return to work so that £250 was paid as an advance of pay for a period which the claimant did not work as he left without giving notice to the respondent.
7. The claimant alleged that he wrote up the hours he worked each day on a piece of paper which he produced to the tribunal. The claimant alleged that he worked 122.5 hours over his contractual hours over the one month period. The respondent produced weekly rosters which he said he and the head chef prepared in advance of each week and displayed for staff. If the chefs worked extra hours the head chef would inform the respondent and would add those hours to the next week's roster so that at the end of the four week pay period, the correct hours would be paid for. According to the respondent's records the claimant worked approximately 20 hours over his contracted hours during the relevant period.

The law

8. The tribunal's breach of contract jurisdiction is conferred by the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994. The tribunal has the power to award compensation for monetary sums outstanding after termination of an employment contract. The burden is on the claimant to prove the sums due.

Conclusions

9. In general, the claimant was a very unsatisfactory witness. His own written account of the hours worked had the wrong days relating to dates and I find that this was not a contemporaneous record as was alleged. In contrast, the respondent came across as a straightforward truthful witness who made every effort to accommodate the claimant by giving advances of pay and made every effort to sort out any dispute with the claimant after the claimant left unexpectedly.
10. The tribunal does not accept the extensive hours claimed by the claimant. When questioned closely by the Chairman as to what exactly was involved in preparing food for pizzas for lunchtime, for example, the claimant struggled to give details. The claimant insisted that the restaurant opened for longer hours than those asserted by the respondent despite the fact that the restaurant brochure clearly showed the opening hours which accorded with the respondent's evidence. I accept the accuracies of the respondent's statement of the opening hours as they accorded with those on the restaurant brochure which was produced in the tribunal and I find that the claimant's allegation that opening hours were longer was a self-serving attempt to show that he would be busier on weekdays than was in fact the case.
11. The tribunal does not accept the claimant's evidence that there were almost 200 meals served every night of the week but preferred the respondent's evidence that the average week night would have 40-45 meals and at the weekend 120 meals per night. Given that level of business and the claimant's evidence that only 5% to 15% of customers would take pizzas, I do not accept the claimant's evidence that he essentially prepared pizza toppings for the best part of six hours on most days. I therefore accept the accuracy of the respondent's rosters which contradict the claimant's evidence that he worked such extensive hours.
12. I have not attached any weight to the written statement produced by the respondent and signed by Mr Quiery as he was not in the tribunal to give evidence.
13. I accept the accuracy of the respondent's note of the meeting of 11 August 2008 because it is consistent with the respondent's evidence and indeed with the handwritten calculations on the claimant's own piece of paper.
14. Ms Dickson gave evidence that the claimant worked those hours because she saw him leave home at a certain time and return home at a certain time. I place no weight at all on this evidence as it is not direct evidence of the hours worked.
15. I do not accept that the claimant was responsible for all cleaning at closing time as the respondent's uncontested evidence was that the head chef, trainee and porter would help as would waiting staff and indeed the respondent himself.
16. In summary, I find that the respondent paid the claimant for his basic hours less the £500 advance made on the claimant's last day. I further find that the respondent made an advance of £250 on 3 July and, as this was an advance of salary, it wipes out any claim for the 20 hours extra which the respondent accepts that the claimant worked.
17. The claimant's claim is therefore dismissed.

Chairman:

Date and place of hearing: 3 October 2008, at Belfast

Date decision recorded in register and issued to parties: