THE INDUSTRIAL TRIBUNALS

CASE REF:	259/13

CLAIMANT:			Sharon Jones

RESPONDENT:		Dropinn Ministries 

DECISION 
The unanimous decision of the tribunal is that the claimant was unfairly dismissed but that compensation should be reduced by 50% for contributory conduct.  The claimant is awarded £9,753.00 for unfair dismissal and £371.66 for outstanding holiday pay.

Constitution of Tribunal:
Chairman:		Mrs Ó Murray 
Members:		Mr J Devlin
			Mr J Magennis

Appearances:
The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by O’Toole and MacRandal Solicitors.

The respondent was represented by Mr R Dawson CEO of the respondent organisation.

The Claim

1.	The claimant claimed that she was dismissed and that that dismissal was unfair.  The claimant also claimed unpaid notice pay and outstanding holiday pay.

2.	The respondent alleged that the claimant resigned, there was no dismissal and no notice pay was therefore due.  The respondent did not dispute the claim for holiday pay.

The Issues

3.	The following were the key issues at hearing:

	(1)	Did the claimant resign or was she dismissed?

	(2)	If there was a dismissal was it automatically unfair for failure to follow the statutory dismissal procedure.

	(3)	Should compensation for any dismissal be reduced due to the claimant’s contributory conduct?

Sources of Evidence

4.	The tribunal had the claim form and response form and the oral evidence of the claimant and of Mr Les Brown the General Manager of the respondent organisation.  The tribunal also had regard to the documentation to which it was referred.

The Law

5.	Mr Mulqueen referred us to Harvey on Industrial Relations and Employment Law at Division D1 Part C at paragraphs 224.02 to 600 in relation to the issue of whether or not there was in fact a dismissal.  Set out below are the principles relevant to this case.

6.	In Harvey, he following overall approach is cited:

	“Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, “who really ended the contract of employment?””  (224.02)

7.	Where there is a dispute about whether or not the claimant has resigned or been dismissed in these circumstances there are three possibilities as follows:

(1)	Was ambiguous language used by the claimant?

(2)	Was unambiguous language used by the claimant which should not be taken at face value because of special circumstances?

(3)	Was unambiguous language used by the claimant which was withdrawn by the claimant by “timely repentance”.

8.	It was agreed by the claimant’s representative that the language used in the text was unambiguous and the claimant relied on the “special circumstances” caveat.

9.	The general rule is that the employer is entitled to accept unambiguous words at face value although there are exceptions to this general rule and these relate to special circumstances.  The following quotation from the case of Sovereign House Security Services Ltd v Savage 1989 IRLR 155 (Court of Appeal), summarises the position:

	“In my opinion, generally speaking, where unambiguous words of resignation are used by the employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned.  In my view tribunals should not be astute to find otherwise.  However, in some cases there may be something in the context of the exchange between the employer and the employee or in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight”.  (para 245) (emphasis added).

10.	Harvey goes on to list possible special circumstances which include words given in the heat of the moment, or in temper, or under extreme pressure.  Harvey states:

	“In those circumstances the employer should allow a reasonable time to elapse (usually a day or two) to see if the employee actually intended what he said.  Further, a prudent employer will investigate the matter and if he fails to do so may find that the tribunal has drawn the inference that there was a dismissal.”  (para 246).

11.	Under the heading:  “The position of the employer and the problem of repentance”, Harvey states as follows in relation to unambiguous statements:

	“The classic case to have arisen here is where the employee in a fit of temper resigns by clear wording (not necessarily of a legalistic nature) but then calms down and very soon afterwards seeks to retract his resignation.  Of course, even here a difficult question may arise as to what constitutes a timeous retraction (within the hour? within the day? by turning up next morning as if nothing had happened?) but it may still be that this is the sort of case in which a tribunal would be most sympathetic and likely to find special circumstances.”  (para 249).

12.	Harvey then goes into detail about employers dismissing in the heat of the moment and states:

	“It may be therefore that in practice a formal letter from an employer will be much more difficult to retract (unless done very quickly) than a hot headed “I’m off” by an employee in the course of a slanging match”.  (para 249).

Statutory disciplinary and dismissal procedures

13.	The statutory Disciplinary and Dismissal Procedures (SDP) are set out in the Employment (NI) Order 2003 (Dispute Resolution) Regulations 2004 and in the Employment (NI) Order 2003.  Essentially there are three steps in the minimum disciplinary and dismissal procedure.  Step one involves the employer writing to the employee setting out the grounds for the proposed action and inviting the employee to a disciplinary meeting to discuss the matter.  Step two involves holding a meeting and notifying the employee of the decision and the right of appeal.  Step three involves inviting the employee to an appeal meeting if the employee avails of the appeal process and notifying the employee of the appeal decision.  Failure to follow the SDP renders any dismissal automatically unfair and a tribunal must increase any compensatory award by between 10% and 50%. 

Contributory conduct

14.	On the contributory conduct issue the tribunal must firstly, consider whether the claimant was guilty of blameworthy conduct that contributed to the employer's decision to dismiss; and, secondly, whether it is just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault.  The test is whether the claimant's behaviour was perverse, foolish or 'bloody-minded' or unreasonable in the circumstances.  If contributory fault is found both the compensatory and basic awards are reduced by the same percentage.

Findings of Fact and Conclusion

15.	The tribunal found the following facts proven on a balance of probabilities and applied the legal principles to the facts found in order to reach the following conclusions.  

16.	The respondent is a Christian charitable organisation which runs 33 charity shops across Northern Ireland in order to raise funds for its work.  Mr Ronnie Dawson was CEO of the organisation, Mr Les Brown was General Manager and Mr Neil Dawson (Ronnie Dawson’s son) was the claimant’s line manager.  The respondent employs 40 full-time staff and has 80 volunteers who work for it.

17.	The claimant was employed as a manager of the Banbridge shop from April 2007 until her employment terminated on 16 November 2012.  The claimant’s husband was also employed by the respondent as a van driver.  

18.	The claimant had previously worked as a volunteer and as an employee for the respondent.  Approximately 5 years before the period in issue in this case, the claimant had walked out on her employment with the respondent, following a disagreement with her managers.  Despite this, some months later, Mr Brown contacted the claimant to ask her to return as an employee.

19.	The claimant had a reputation for having a temper and she was known by the respondent to have mental health issues which appeared to be related to depression or anxiety.  

20.	On 20 June 2011 the claimant had been a victim of a very serious assault in work. Following the assault, the claimant was anxious not to be in the shop on her own and she normally arranged for volunteers to be in attendance with her.  She also arranged (by agreement with her managers) for her husband to work in the shop on a Friday.  We accept the claimant’s evidence that this was part of her reaction to the robbery and that this reason was known to the respondent.  

Telephone call 15 November 2012

21.	On 15 November 2012 the claimant became aware that her husband would not be in the shop the following day as Mr Brown wanted him to carry out van driver duties.   This concerned the claimant as it was the second week that this had happened and it meant that she had very little time to organise other cover to accompany her in work.

22.	The claimant telephoned Les Brown with her concerns.  On the claimant’s account of the telephone conversation with Mr Brown, Mr Brown became very aggressive with her and told her that she was “talking herself out of a job” simply for raising with him her concern about her husband’s absence.  Mrs Jones agreed that the conversation became heated after she indicated that she would contact Mr Ronnie Dawson (Mr Brown’s superior) to discuss the matter.  It was the claimant’s case that Mr Brown then threatened her that if she did so she would definitely be talking herself out of a job and he hung up on her.

23.	Mr Brown’s account of the conversation was that it was a civil conversation with the claimant raising her concerns about her husband’s absence the next day.  He stated that the claimant refused his offer to organise cover but she said that she would organise volunteers to come in the next day.  On Mr Brown’s account the claimant then suddenly became aggressive and screamed at him, castigating him in relation to other matters and that her behaviour was such that he had to hang up the phone on her.  Despite the way the conversation went (on Mr Brown’s account) he believed that the claimant would be in work the next day and that she was still organising cover for the next day.  

24.	Mr Brown’s account of the conversation is inherently implausible and we do not accept it.  The claimant’s texts set out below support her version of the conversation.   We accept that Mr Brown became aggressive at being questioned by the claimant and that this, together with the lack of cover for the next day, led the claimant to lose her temper with him and Mr Brown then hung up on her.  We do not understand why Mr Brown was so confident that the claimant would be in the next day for the whole day and that she would organise cover.  We do not accept that he thought the claimant was giving one day’s notice because that is at odds with the contractual requirement.  Mr Brown knew that the claimant had a hot temper, he knew that she had mental health issues and he knew that the assault was an issue which made it difficult to her to work alone so he should have known that the withdrawal of her husband without organising cover, would cause her anxiety.

25.	Following the telephone call the claimant then sent a text message to her line manager Neil Dawson which stated as follows:

	“Neil iv just been spoken to by les because iv said my opinion iv been tgreatened with the loss of my job that’s the thanks I get for over doing a job well. iI not be spoken to like that by him or anyone else so il quit first.  il clear out all of my stuff tomarrow im sorry it has ended like this.  Sharon”  (SIC)

26.	The claimant immediately sent a text to Ronnie Dawson the CEO of the respondent organisation and the chain of texts in chronological order stated as follows:

	“(1)	Ronnie sorry to bother you when your away not sure who is running things this week.  I had a run in with les in which he told me if I continued to voice my opinion about a certain matter id b talking myself out of a job.  I don’t take threats very well when they arnt warranted we ordinary workers have no one to speak out for us and I was told this tonight after closing once again im sorry to have to bring this to your attention.
	Sharon jones

	(2)	Hello Sharon.  Les is in charge.  What is the issue you are concerned about?  I am happy for you to bring it to my attention.

	(3)	Ronnie I know you don’t need this when your away to much to get into by txt just disappointed how things were handled today he told me if I was to speak to u about the matter I would be talking my job away he was nasty in his approach when I said his manner wasn’t a very christian one I was again told to let things drop.  im not into back biting one boss against the other but when any man no matter who it is wont take a ph call in a decent mannor I had no choice but to text yourself.colin and I work our socks off for dropinn and after the attack last year I think you all know this once again im sorry I have interrupted ur trip.god speed
	Sharon” 

27.	The claimant went to work as usual the next day, Friday 16 November, and organised two volunteers to cover different periods in the day with her.  At 3.30 pm, (that is 30 minutes before closing time), Mr Brown telephoned the claimant to ask if she had cleared out her belongings.  The claimant was given a short period to clear out her belongings and leave the keys at the Craigavon shop.  The claimant understood Mr Brown to be dismissing her in that conversation.  

28.	We do not regard the claimant turning up at work the next day as a sufficiently clear retraction of her resignation the previous day as she made no effort to contact her managers if that was her intention.  It was, however, one of the special circumstances which put an onus on the employer to investigate further as outlined below.

29.	In assessing whether the words are unambiguous the words are given their natural meaning and the tribunal can look at how the recipient understood them.  It seems to us that the natural meaning of the words was that the claimant was resigning in the text following her telephone call with Mr Brown.  However Mr Brown’s evidence was clear that he did not regard the words in her text as an unequivocal resignation in that he expected the claimant to come to work the next day as normal and to apologise in which case she would have continued in employment and been disciplined.

30.	It was agreed, and we so find, that the claimant’s text to Neil Dawson of 15 November 2012 contained unambiguous words of resignation.  In this case however, we find that there were special circumstances which meant that the respondent should not have taken at face value the words in the text but should have checked with the claimant or investigated to some degree as there was doubt about the claimant’s intentions given her history.  

31.      The special circumstances in this case principally relate to the following:

	(1)	The claimant had a reputation for a hot temper to the extent that she had previously walked out of the job.  

	(2)	Despite the claimant having previously walked out, the respondent asked her back to be an employee some months later and did so in full knowledge of her temperament.

	(3)	The claimant had mental health issues which were known to the respondent which appeared to be related to depression and anxiety.

	(4)	The claimant had been the victim of serious attack in work when she was alone.  As a result, her husband worked on a Friday to accompany her and the respondent therefore knew this was important to her.

	(5) 	The claimant’s experience of previous difficulties at work with Mr Brown was that Neil Dawson her line manager would usually smooth things over between them after talking to her. It was unreasonable for Neil Dawson not to engage with the claimant following receipt of the text.  Neil Dawson did not appear before us and Ronnie Dawson chose not to give evidence before us despite the chairman pointing out to him that his questioning of the claimant touched on matters within his knowledge and he should therefore consider giving evidence in relation to them.  We therefore had no evidence from Ronnie or Neil Dawson in relation to their lack of engagement with the claimant after her texts to them.  What we did have was Mr Brown’s clear evidence that a decision had been made not to engage with the claimant in order to let her cool down.  This also shows that these managers did not take her resignation at face value.

	(6)	The texts sent by the claimant to Ronnie Dawson are at odds with her words of resignation in the text to Neil Dawson.  	

	(7)  	The respondent, in the form of Mr Brown, did not organise cover for the 16 November, did not check if the shop had actually been opened by the claimant that morning, nor did he check if the claimant was in work during that day until close to closing time when he decided to contact her. It was clear to us that both sides were expecting the other to make the first move on 16 November.  Mr Brown’s clear evidence was that he expected the claimant to make an apology and he regarded her as still employed on that day.  Given his knowledge of her temperament and her history he expected her to apologise and he then intended to move to discipline her.  His evidence was that even if she had been disciplined the worst penalty that would have been applicable would have been a final written warning.

	(8)  	The fact that the claimant turned up and worked the whole of the following day was at odds with her texts the previous evening.  It is clear from the texts, that the claimant thought that she could sort matters out with Neil Dawson (following the involvement of Ronnie Dawson) as had previously occurred and that she felt that this might happen the next day.  To this end she turned up at work the next day and worked as normal.

32.	The authorities in this area in relation to resignations in the heat of the moment, which are later regretted, centre on verbal exchanges.  It would normally be difficult for a claimant to resile from a resignation set out in a letter.  We find that an exchange of texts has an immediacy and can have an informality which can make the exchange akin to having a heated verbal conversation. In this case, the exchange of texts was not the equivalent of sending letters and we do not therefore equate the texts with formal written notification of resignation. 
	
33.	In summary therefore we find that special circumstances existed in this case whereby the claimant’s unambiguous words of resignation on 15 November 2012 could not be taken at face value.  The claimant was still employed on 16 November until the conversation with Mr Brown during which he told her that she had 20 minutes to gather her belongings and leave.  These amounted to unambiguous words of dismissal and the claimant reasonably understood that she was being dismissed.

34.	In the circumstances there was more of an onus on the respondent in the form of Mr Brown, to establish whether the claimant meant what she had said in her text to Neil Dawson.  It was not enough for him to wait for an apology without asking the claimant about her intentions or investigating the matter further.

35.	We therefore find that the claimant was dismissed by Mr Brown on 16 November 2012 without notice and without any procedure (statutory or otherwise) being followed and was thus automatically unfair.  In the circumstances we regard a 50% uplift of the compensatory award to be appropriate in this case given the circumstances of the failure to follow a procedure.

Contributory conduct

36.	We find that contributory conduct was a major factor in this case.  The claimant’s hot-headedness during her conversation with Mr Brown on 15 November and her unambiguous words of resignation in the text to Mr Dawson, contributed to her dismissal.  Her words of resignation amounted to blameworthy conduct which we assess at 50%.  Compensation is adjusted accordingly below.

Compensation

Holiday pay

37.	Holiday pay is awarded as it was accepted by the respondent that it was payable.  The calculation is as follows:

12.25 days x £30.34 per day = £371.66

Notice Pay

38.	Any sum claimed for unpaid notice pay is incorporated in the compensatory award set out below.

Unfair dismissal (UD)

39.	We accept that the claimant may have difficulties in the current climate in obtaining an equivalent job although we accept that the claimant’s work was not skilled work.  By the time of the hearing, the claimant had been working as a volunteer for a period of time and this should help her gain paid employment again.

40.	Taking account of the claimant’s history and the current economic climate, we estimate that she should be in a position to obtain similarly remunerated employment within six months from the date of the hearing.

41.	The effective date of termination (EDT) is 16 November 2012. The claimant’s weekly pay was £243 gross and £213 net.

42.	Basic Award

	5 years x 1½ weeks x £243 gross = 		£ 1,822.50

43. 	Compensatory Award

	(i) 	Loss of statutory industrial rights:    	£    500.00

	(ii) 	Loss from EDT to 28 May 2013 
		= 27 weeks x £213 net:              	 	£  5,751.00

	(iii)	Future Loss
		26 weeks x £213 net:                  		£  5,538.00
					                     	  		_________
		Total compensatory award:               		£11,789.00

	50% uplift on compensatory award:     		£  5,894.50
	                                                           		_________
	Total compensatory award:                		£17,683.50
								_________
44.		Contributory conduct								

	Total UD compensation
	(basic and compensatory)=                     	 	£19,506.00

	50% deduction for contributory conduct      	£   9,753.00
									__________
	Net UD compensation:                                 	£   9,753.00
									__________

Statement for Recoupment Purposes

45.	(A)  	50% compensatory award:                       	£  9,753.00

(B)    Prescribed element relating to loss of
         wages for the period between EDT
         (16 November 2012 ) to date of 
         hearing (28 May 2013): 		           £  5,751.00
									__________
							(A) – (B) =    	£  4,002.00
								__________

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

Chairman:

Date and place of hearing:  28 May 2013, Belfast.		

Date decision recorded in register and issued to parties: