Takeaway worker replaced while on ‘holiday’ fails in compensation claim

Thursday 13 September 2018

A Chinese takeaway kitchen porter, who was replaced after taking an extended holiday to look after a terminally ill family member without telling her boss, has seen her £4,500 dismissal compensation claim fail at the Employment Tribunal.

Maria de Sousa, who was also a cleaner at Princess Garden, argued that she was entitled to £1,890 compensation for unfair dismissal, £945 in damages for wrongful dismissal, £809.75 in holiday and public holidays pay and £945 in compensation for failing to give her pay slips.

Represented by Danny Wan, her employer denied her claims, saying she had gone on an arranged holiday and did not return, prompting him to hire someone else to fill her position. He denied owing her any money or failing to provide written pay slips.

The Tribunal heard that Mrs de Sousa started working part-time at the restaurant in June 2016. She told Advocate Mike Preston, Deputy Chairman of the Employment Tribunal, that at the end of July 2017, she told her employer she was going on holiday to Madeira on 1 August to care for her brother, who was gravely unwell, and would be returning towards the end of September. When she returned on 19 September, Mr Wan told her she had been replaced by a member of his family and that her job was no longer available.

Mrs de Sousa therefore put forward a case saying she had been summarily dismissed without notice, let alone a fair process. She also argued she had never taken any holiday and had worked all the Bank Holidays the restaurant was open for, without receiving day off in lieu or any additional payment. 

Pictured: Mrs de Sousa claimed she had been unfairly dismissed.

But Mr Wan claimed that he had expected Mrs de Sousa to be back by 1 September, and that he was never informed that the trip was to visit her terminally ill sibling.

Another employee confirmed she was present when Mrs de Sousa told her employer she would be back on 1 September. As she didn’t return on 1 September and failed to contact him, Mr Wan thought Mrs de Sousa was not coming back. He told the Tribunal he had tried phoning her but couldn’t get hold of her.

Mr Wan admitted that Mrs de Sousa was entitled to holidays, but explained that, as per her contract, she was not entitled to extra pay if she chose not to take them. The same applied to Bank Holidays and Mr Wan denied that Mrs de Sousa was entitled to any payment for them as she hadn’t worked on any of them. 

Mr Wan also provided pay slips, some of them signed by Mrs de Sousa herself, which he said “completely undermined her claim in this respect and also reflected upon her evidence as a whole." Mrs de Sousa said she did not know what she was signing and that the pay slips had been presented to her when Mr Wan was trying to show to the Social Security Department that its affairs were in order when, in fact, they were not.

Pictured: Advocate Mike Preston, Deputy Chairman of the Employment Tribunal, dismissed the ex-Princess Garden employee's claims.

The Tribunal “preferred” Mr Wan’s evidence to that of Mrs de Sousa. The final judgment noted: "The Tribunal finds as a matter of fact that the Claimant told Mr Wan that she was going away for the month of August and that there was no mention of the fact that the Claimant’s brother was ill. 

“When the Claimant did not return, without giving any information to the Respondent, Mr Wan reasonably assumed that she had resigned and was not returning. There was evidence that he had tried to contact her without success.

They therefore concluded Mrs de Sousa had resigned, and hadn’t been dismissed. Her claims for both unfair and wrongful dismissal therefore failed.

The Tribunal judgement described her claims for holiday pay as “misconceived", adding that she couldn’t be due any payment for Bank Holidays as she couldn’t prove she had worked on such days. As Mr Wan had provided pay slips, they also refused to give compensation in that respect.