THE INDUSTRIAL TRIBUNALS

CASE REF:63/07

CLAIMANT:		Avril Frances McClurg

RESPONDENTS:	1.  Ann Kennedy
2.  Joy Quinn Directors of Centra Ballinderry Ltd

DECISION

The majority decision of the tribunal is that the claimant was unfairly dismissed and is entitled to a payment of £939.37.

Constitution of the Tribunal

Chairman:		Ms F Oliver

Members:		Mr Ian O’Hea
                 		Mrs Margaret Gregg

Appearances

The claimant appeared and represented herself.

The respondents appeared and represented themselves.

1.	Sources of Evidence

The tribunal heard evidence from the claimant and from Ann Quinn and Joy Kennedy directors of the respondent company.

2.	The Claim and the Defence

The claimant claimed that she had been unfairly dismissed by the respondent.  The respondent denied that the claimant had been dismissed, stating that the claimant had handed in her notice. 

3.	Issues

The issues for the tribunal were as follows:-

1.	Was the claimant dismissed by the respondent?

2.	If the answer to question 1 is no, was the claimant constructively dismissed by the respondent?

3.	If the answer to question 1 is yes, what was the reason for the dismissal?

4.	Was the reason for the dismissal fair?

5.	Has the claimant been unfairly dismissed?

4.	Analysis of the evidence

There was a conflict in the evidence.  The tribunal had to consider and analyse in detail the evidence relating to two meetings between the parties on 26 and 27 September 2006 as these meetings were central to the question of whether a dismissal took place.  It was agreed that both meetings had been emotional in nature and both had ended in a heated departure by the claimant.  The exact words spoken by the three people at these meetings were not agreed. 

5.	Findings of Fact

Background

The claimant commenced employment with the respondent on 28 August 2005.

On Tuesday 26 September 2006 the directors called the claimant to a meeting to discuss the claimant’s attitude to customers, performance of duties and concerns raised by a number of other employees.

The claimant became distressed during the meeting.  The meeting ended abruptly when the claimant left announcing her intention to look for other work as she found it impossible to continue to work in the Centra store.

The respondents asserted at hearing that they took this conversation as being a resignation by the claimant.

The claimant asserts that she did not resign at this meeting.  She was simply indicating that she would be looking for other work in the future.

On 27 September 2006, the claimant attended with her G. P. and was given a sick line for 4 weeks on the basis that she was suffering from stress.

The claimant called to Centra on 27 September 2006 to hand in her sick note.  Again the meeting became heated with hurtful comments being uttered by all parties.

The claimant left this meeting in a distressed state slamming the door as she went.
	
On 2 October 2006, the directors wrote to the claimant indicating that they were accepting her sick line as her notice and advising that they would forward her P45 in due course.

The P45 was duly sent to the claimant indicating the date of leaving as 6 October 2006.

On 19 October 2006, after consulting with the Citizens Advice Bureau about another matter, the claimant sent a letter to the respondents appealing against her dismissal.

The Law

Article 126 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to be unfairly dismissed.

In determining whether a dismissal is fair or unfair it is for the respondent to show that the reason for the dismissal is a reason falling within Article 130 (2) of the Order which includes a reason relating to the conduct of the employee.

In a case where the employer shows that the employee’s conduct was the reason for the dismissal, the determination of the question as to whether the dismissal was fair or unfair depends on whether in the circumstances  (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably in treating the reason as a sufficient one for dismissing the employee and the question is to be determined in accordance with the equity and substantial merits of the case (Article 130 (4) of the Order).

There are several cases concerning the problem of ambiguous language in a dismissal/resignation situation and the tribunal considered these cases when reaching a decision.  In practice it is accepted that a situation can occur where an employer treats an employee as having resigned in situations where the employee had not meant to do so.

The cases illustrate that in situations where ambiguous words are used, an objective test is appropriate.  The tribunal should consider how a reasonable listener would have understood the words spoken i.e. in construing the words as words of resignation, did the listener not merely genuinely construe them that way, but was he acting reasonably in all the circumstances in so construing them. 

6.	Application of the Law and Findings of fact to the Issues

Majority

The majority of the tribunal having considered all the facts comes to the conclusion that the claimant did not tender her resignation at either meeting.

We reach this conclusion in relation to the first meeting having considered the fact that the claimant visited her G.P. on the morning following the meeting, was given a sick line and brought this to her employers within hours of having received it.  The tribunal finds that she would only have done this if she considered that she was still employed by the respondents.  Indeed the letter of 2 October 2006 from the respondents refers to the fact that “you stated your intention to hand in your notice to us at the meeting of 26 September 2006”, not that she actually handed in her notice.  We believe that this is an indication that the respondents did not believe that the claimant had resigned on 26 September 2006.  We also find, for the avoidance of doubt, that it was not reasonable for the employers to find that the words spoken on 26 September 2006 were unambiguous words of resignation. 

In relation to the second meeting, we believe that by handing in her sick line, the claimant was indicating that she would be off on sick leave for the following four weeks, not that she was resigning.  The respondents were not entitled to take the claimant’s sick line as her notice as they have stated they did in their letter of 2 October 2007.  No reasonable person would have come to the conclusion that by handing in her sick line the claimant was also handing in her notice.

We find that the claimant left the office in an emotional state stating that she was going to look for other work in the future but we do not find that she had handed in her notice and we do not consider that it was reasonable for the respondents to have concluded that she had handed in her notice.  We find that the respondent was aware that the claimant was suffering from stress on 27 September 2006 and was not due to return to work for a further four weeks.  A reasonable person would have taken this into account when construing the words spoken by the claimant.

We find that by sending the letter of 2 October 2006 to the claimant, the respondents effectively dismissed the claimant.  They seized the opportunity to get rid of an employee who was obviously emotionally distressed and whom they thought was likely to cause difficulties in the future.

We find that the reason for dismissal was the claimant’s attitude at the meetings on the 26 and 27 September 2006 together with her handing in of a sick note which left the respondents in a difficult position as far as arranging shifts and rotas was concerned.

We consider that this is dismissal on the basis of conduct and as such falls within the definition of a potentially fair reason.

The tribunal then considered whether the respondent had acted reasonably or unreasonably in treating the conduct as sufficient reason for dismissing the claimant, and concludes that it had not acted reasonably in doing so.  The test is not what the tribunal would have done, but whether the decision to dismiss was within the band of reasonable responses of a reasonable employer.  We find that the decision to dismiss was not within the band of reasonable responses of a reasonable employer.  At the time of dismissal the respondents were aware that the claimant was suffering from stress and was entitled to be on sick leave.  The respondents should have allowed the claimant her period of sick leave and could have dealt with any disciplinary matters on the claimant’s return to work.  The question of fairness is to be determined in accordance with the equity and substantial merits of the case.  The dismissal was therefore unfair.

The question of the respondents offering a right of appeal to the claimant did not arise as the respondents did not consider that they had dismissed the claimant.

When the respondents received the claimant’s letter of 19 October 2006 indicating that she thought she had been dismissed the respondents responded appropriately by offering to meet the claimant.  However the claimant did not avail of this opportunity.

The tribunal found that the claimant had worked for the respondents for one complete year at the effective date of termination.

The claimant started a new job on 14 November 2006 earning more than she had been earning with the respondents.

Minority

The claimant resigned from her employment on Tuesday 26 September 2006 during a meeting with the Directors.  She was distressed at the meeting which had been called to discuss her attitude to customers, performance of duties and concerns raised by a number of other employees.  The meeting ended abruptly when claimant left announcing her intention to look for other work as she found it “impossible” to continue to work in the Centra store.

Claimant returned to the shop on the following day, Wednesday 27th, bringing with her a sick line.  She met with first, Joy Quinn who was joined a few minutes later by Ann Kennedy. The meeting became heated and ended abruptly as claimant left claming that the Directors were impossible to work for, slamming the door as she went.

A resignation, once offered, cannot normally be withdrawn except with the employer’s consent.

The exception to the above “rule” applies in cases where a resignation is offered in the heat of the moment and then withdrawn. 

This is a case where the resignation was clearly given in the heat of the moment.

A sensible employer would, although not obliged to do so, seek confirmation of the intention when tempers had cooled.

The opportunity to do this occurred on Wednesday 27 September 2006 when claimant returned with the sick note.

At this meeting, rather than withdraw her resignation, the claimant reiterated her dissatisfaction with her employment and her intention to resign and her employers were, at that stage, entitled to treat her as having resigned and a dismissal has not occurred.

Compensation

This is set out in the Employment Rights (Northern Ireland) Order 1996 at Article 152.

Basic Award

This is calculated in accordance with Article 153 as follows:

Complete years of service                                                          1

Age at dismissal                                                                          46

Week’s pay (gross)                                                                     £161.20

Basic award  1 1/2 weeks pay x 1                                               £241.80

Compensatory award

The claimant is entitled to receive payment for five weeks during which she did not obtain employment at the rate of £161.20 per week making £806.00 in total.  The tribunal notes that the claimant received a total of £413.63 from the respondents following her termination of which £187.20 related to a lying week and hours worked and not paid for.  The tribunal therefore deducts the balance of £226.43 from the compensatory award giving a figure of £579.57.

The total award is as follows:

Basic award:                                                                         £241.80

Compensatory award                                                            £597.57

Loss of Statutory Rights                                                       £100.00
                                                                                              £939.37

The claimant received Income Support of £57.45 per week from 6 October 2006 to 13 November 2006.

Your attention is drawn to the notice attached which forms part of the decision of the tribunal.

This is a relevant decision for the purposes of the Industrial Tribunal (Interest) Order (Northern Ireland) 1990

Chairman:

Date and place of hearing:	30 April 2007, Belfast.

Date decision recorded in register and issued to parties: