THE INDUSTRIAL TRIBUNALS

CASE REF:	186/13

CLAIMANT:			 Anne June Martin

RESPONDENT:		 JGMC Leisure Ltd, t/a Snakes ‘N’ Ladders

DECISION 
The decision of the tribunal is that the claimant’s claim for two week’s additional notice pay is dismissed.

Constitution of Tribunal:
Chairman (sitting alone):		Mr S A Crothers

Appearances:
The claimant was present and represented herself.

The respondent was represented by Mr Gareth Davison.

The Claim

1.	The claimant claimed that she was entitled to an additional two week’s notice pay.  The respondent repudiated her claim in its entirety.  The first-named respondent in the proceedings, Michelle Davison, was dismissed as a respondent, as she was not the claimant’s employer.  

The Issue before the Tribunal

2.	The issue before the tribunal was whether the claimant was entitled to an additional two week’s notice pay.

Sources of Evidence

3.	The tribunal heard evidence from the claimant and, on behalf of the respondent, from Kirsten Livingstone, who was the respondent’s Assistant Manager at the material time, and from Michelle Davison, one of the respondent’s Directors.  The tribunal was also referred to relevant documentation during the hearing.  

Findings of Fact

4.	Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i)	The claimant was employed by the respondent from 1 November 2008 until 2 December 2012.  Her net weekly wage was £290.00.

(ii)	It was not disputed that the claimant’s contract required her, in the circumstances of the case, to give at least four week’s notice of termination of employment in the event of her resignation.  The claimant had also undergone induction training, and signed a checklist dated 13 August 2010 confirming that ten topics contained in the Staff Handbook, including the employee grievance procedure, had been explained to her.

(iii)	In undated correspondence, the claimant gave written notification to the respondent stating that

“As from Monday 19/11/12 I’m giving four week’s notice of my leaving until 17/12/12.

	I have found better opportunities & I feel this will benefit me for future employment.

I want to take the opportunity to thank you for the last 4 years”.

(iv)	The tribunal considered the claimant’s grievance letter dated 15 February 2013, (adopted as part of her evidence), which contains an allegation that Michelle Davison pressurised her into signing a letter insinuating that she wanted to leave before her full notice period was completed.  The tribunal carefully considered the evidence before it and is satisfied that the correspondence dated 22 November 2012, which was not signed until 30 November 2012 by both Michelle Davison and the claimant, represents their agreement to end the employment relationship by mutual consent.  The tribunal is not persuaded, on the evidence, that the claimant was pressurised into signing this correspondence which reads:-

“Dear June

It is with regret that I accept your letter of resignation of the 19th of this month.  As per the terms of your contract you are required to give a months notice.  You have however indicated that you would prefer to finish at the earliest date possible to take up your new position.  It would be possible for you to finish on Sunday 2nd December.  If you are in agreement with this, please sign both copies of this letter, and retain one for your records.

I would like to take this opportunity to thank you for the last 4 years.

Yours sincerely

Michelle Davison
Manager

June Martin”

5.	The claimant confirmed on 30 November 2012 that she would no longer be working for the respondent as from Saturday night 1 December.  This was the date on which she was last on the rota.  The tribunal does not accept the claimant’s suggestion that in effect her notice period was shortened by the respondent owing to the fact that Catherine McConkey was commencing employment with the respondent on 3 December 2012.   The respondent was prepared to allow the claimant to work the remainder of the notice period, and the claimant could be considered to be in breach of the contract if she refused to do so.  However, page 10 of the claimant’s claim form, which she adopted as part  of her evidence before the tribunal, specifically states (referring to 30 November 2012) that:-

“I told Gemma at the end of my shift that I was sticking to the original agreement that we both agreed on and that the 02/12/12 was the end of my employment”.

The Law

6.	As the case of Birch and Humber v the University of Liverpool (1985) IRLR 165 CA points out, the definition of dismissal is directed only to a case where the contract of employment is terminated by the employer alone.  Dismissal is not consistent with a case where a contract has been terminated by the mutual, freely-given consent of the employer and the employee.  In a case where the contract has been terminated by such mutual agreement, it may properly be said that the contract has been terminated by both the employer and the employee jointly, but it cannot be said that it has been terminated by the employer alone.

Conclusions

7.	The tribunal, having considered the evidence and applied the principles of law to the findings of fact, concludes that the employment relationship was terminated by the mutual freely-given consent of the respondent and the claimant, and it therefore dismisses the claimant’s claim.

Chairman:

Date and place of hearing:	24 April 2013, Belfast.	

Date decision recorded in register and issued to parties: