THE INDUSTRIAL TRIBUNALS

CASE REF:   1153/10

  CLAIMANT:	Robert McCormick

RESPONDENT:       Park Avenue Hotel Ltd

DECISION
The unanimous decision of the tribunal is that the contract under which the claimant was employed was not terminated by the respondent and it dismisses the claimant’s unfair dismissal claim.   

Constitution of Tribunal:
Chairman:		Ms M Bell
Members:		Miss A Hamilton
			           Mrs F Cummings

Appearances:
The claimant did not appear but was represented by Mr Stephen McIlveen, Parliamentary Assistant to Michelle McIlveen MLA, DUP Advice Centre, Comber.
The respondent was represented by Mr Alan J Ferguson, of Personnel and Training Services.

1.	The claimant complained in his claim that he was unfairly dismissed by the respondent, the respondent having sent him a letter stating that it had accepted his resignation on the basis that they had no option but to assume that he had resigned due to his leaving its premises on 16 March 2010 and stating to his manager he was finished and not returning to work on the 
17 March 2010; whereas he had not resigned, but was accused of theft, gave the respondent every opportunity to involve the police, and due to slander and malicious allegations had no choice but to leave his employment on the morning of 16 March 2010 and before doing so had put in place with his manager holidays until Monday 22 March 2010. The claimant set out details  of events when he returned to the respondents premises on 19 and 22 March 2010; claimed that for him to have resigned would have been in breach of contractual requirements placed upon him to do so in writing and provide notice; that  the respondent had failed to implement its disciplinary procedure applicable  for an employee failing to turn up for work; disputed that the respondent had a basis to assume that he had resigned; stated that he was not aware that he had left his clock card with his pager on 16 March 2010; he had only returned his uniform to get his P45 which he needed to obtain benefits and he had never resigned his post and this could only be seen as constructive dismissal.  

2.	The respondent resisted the claimant’s claims asserting that the claimant had told its maintenance manager  on 16 March 2010, following having been interviewed on 15 March 2010 as part of an investigation by the respondent into the disappearance of merchandise stored by the hotel over the weekend for a trade show taking place at the hotel, that he was leaving, that he ‘was finished’ and his pager, which he was required to leave at reception at the end of his shift, and his clock card, were found left on the desk in the manager’s office, the claimant did not report for work on 17 March 2010 and did not contact the respondent to give any explanation of his absence and consequently wrote to the claimant stating that it was assumed by his conduct and conversation with his manager that it was his intention to resign. The respondent in particular refuted that the claimant requested holidays from his manager on 16 March 2010; pointed out that the claimant did not during his attendance on 22 March 2010 indicate that that there had been a misunderstanding and that he had been on holiday; refuted that there was any requirement on it to implement its disciplinary procedure; set out its account of the claimant’s attendance at its premises on 19 March 2010 and contended that the claimant did resign during his conversation on 16 March 2010 and his subsequent action in not reporting for work.

3.	Mr McIlveen confirmed that the claimant wished the case to proceed in his absence, that he suffers from a speech impediment which would be aggravated by the stress of the hearing and despite advice that it would be in the best interests of his case was adamant that he would not attend and wished the case to proceed without him. It was also confirmed that the claimant’s claim was that he did not resign but that he was dismissed and that no claim was being pursued that the claimant was constructively dismissed.

Issues

4.	The issues for the tribunal were

(i)	Was the claimant dismissed? If so,

(ii)	Was the claimant unfairly dismissed?
Evidence

5.	The tribunal considered the claim, response, an agreed bundle of documentation, a statement from the claimant dated 13 August 2010, and heard oral evidence from Ms Tamsin Brown, the respondent’s HR Manager, Mr Raymond Warnock, the respondent’s maintenance manager and the claimant’s manager, and Ms Haley Matheson, the respondent’s maintenance operative, previously employed as a bar person at the time of termination of the claimant’s employment.

Findings of Fact

6.	The claimant commenced employment with the respondent as a maintenance assistant on 25 September 2006.

7.	In the week commencing 14 March 2010 the claimant’s work rota required him to work seven days from Sunday to Saturday inclusive.

8.	A trade show had been taking place at the respondent’s premises in the week up to Friday 12 March 2010 but as it was not showing again until Monday 15 March 2010 the customer had arranged for respondent to store its merchandise over the weekend. The function room used for the trade show was required for another use at the weekend and so the claimant was instructed to move the merchandise which included bags and suitcases, to the respondent’s back office, which he did.

9.	On Monday 15 March 2010 the claimant was informed by the respondent’s night porter that five handbags were missing from the trade show merchandise, the night porter also informed Mr Warnock of this. Mr Warnock later, when speaking to the claimant, indicated that he would have to wait until Ms Brown came in to look at the CCTV footage. When Mr Warnock returned a short while later to the room in which the claimant was working the claimant expressed concern that he would be seen leaving the premises carrying a bag with his clothing in it, Mr Warnock replied that if it was only clothing that there was nothing to worry about and he then sent the claimant to carry out a search of the hotel premises for the missing bags, but the claimant did not find anything.

10.	Ms Brown and Mr Warnock viewed the CCTV footage to try and establish the movement of the bags and who could possibly have been in contact with them. As part of their investigation Ms Brown spoke to all staff members who it was considered could have had contact with the bags, statements were taken and the claimant was interviewed to try to establish what had happened to the bags.  No accusation was made by the respondent against the claimant.

11.	It was the respondent’s normal practice to require employees who wished to take holidays to obtain from Ms Brown a holiday request form for completion by the employee and then approval by their manager. This procedure was occasionally not observed by Mr Warnock in respect of the claimant when the claimant asked to finish work early and had completed his duties for the day.

12.	On Tuesday 16 March 2010 Mr Warnock met the claimant outside the manager’s office beside the clocking in machine, the claimant asked Mr Warnock to check his bag, Mr Warnock asked what for and the claimant then responded ‘I’m finished’, Mr Warnock understood the claimant to be resigning and told him ‘don’t be so stupid, take your coat off you’ve given an explanation as to what happened’. Mr Warnock then left the claimant to get on with his own work as he was very busy that morning.

13.	Mr Warnock later relayed the conversation that he had had with the claimant that morning to Ms Brown and when they went to the manager’s office they found that the claimant had left his pager and clock card there on the desk.

14.	The claimant did not clock in for work on 16 March 2010.

15.	The respondent required employees to leave their pagers at reception at the end of a shift and expected them normally to keep clock cards on their person. The claimant had not left his pager or clock card in the office after work before.

16.	No holiday request form was submitted by the claimant to the respondent for holidays on 16,17,18,19 or 20 March 2010. 

17.	The claimant did not attend work on Wednesday 17 March 2010.

18.	Ms Brown sent the claimant a letter on 17 March 2010 stating,

‘ I write with reference to a conversation which took place between yourself and your manager, Raymond Warnock, at approximately 8am on 16 March 2010. In this conversation you verbally indicated your intention to resign from your position as Maintenance Assistant. We assume by your conduct, as you left the premises immediately following this conversation, leaving behind your clock card and pager, and following your absence from work today, Wednesday 17 March 2010, that this is indeed your intention. Therefore the company has no option but to accept your resignation and assume that this is effective immediately.

  Your outstanding monies and P45 will be processed upon the return of your   uniform items.’

19.	On Friday 19 March 2010 the claimant attended the respondent’s premises to return money owed to Mr Warnock. In his claim form the claimant stated ‘I returned to work informally on Friday 19th March and spoke to my maintenance manager about the current situation and stated I was willing to return to work the following day. In reply to this he stated he [would] have to verify this with the hotel manager Mandy Martin and would telephone me about this later that day. I received no call in relation to returning to work. On Monday 22nd I did return to work to discuss the situation and try to resolve informally.’ The claimant in his statement set out ‘I came back to the hotel to pay back some money that I owed to the maintenance manager and I asked him if things had been sorted out yet. This was to deal with the matter of my leaving the hotel on Tuesday 16th due to the increasing stress caused by ongoing speculation of the event that had taken place earlier in the week. It had to be sorted as I left early and therefore may have l[e]d to being given a disciplinary. It was also to establish when I would be returning to work.’ Mr Warnock gave evidence that on the morning of 19 March 2010 he met the claimant waiting at the back doors of the hotel and the claimant returned money to him and then showed him the letter of 17 March 2010 from Ms Brown and asked if there would be any chance of getting his job back, that he replied that it was out of his hands and that the claimant would have to speak to Ms Mandy Martin the director. The tribunal considers that if the claimant had put holidays in place before leaving work on the 16 March 2010 and genuinely believed himself to be on holiday until 22 March 2010 it seems at odds then to suggest in his evidence that part of the reason for his visit to Mr Warnock on the 19 March 2010 was that he potentially could have faced being given ‘a disciplinary’ for leaving work early on the 16 March 2010, and to also state that his visit was to establish when he would be returning to work. The tribunal prefers the evidence of Mr Warnock to that available from the claimant regarding the events of the 16 and 19 March 2010 and in particular finds that no request for holidays was made by the claimant to Mr Warnock before he left on the 16 March 2010 and that the claimant on 19 March 2010 asked Mr Warnock if there was any chance of getting his job back.

20.	On Monday 22 March 2010 the claimant attended the respondent’s premises and in his claim form stated ‘to discuss the situation and try to resolve the matter informally. On arriving at the Park Avenue Hotel the Human Resources manager was eagerly awaiting to tell me that she had issued a letter stating that they had accepted my letter of resignation.’ In his statement the claimant claims that he went up ‘to discuss the situation with either my maintenance manager or hotel manager. Neither was at reception when I called although the HR manager was there and informed me that she had already issued a letter on 17 March 2010 to say that the Park Avenue had accepted my resignation. After hearing this I went directly to my mother’s house which is my postal address to see this letter. It was very clear in this letter that I was no longer considered an employee of the Park Avenue Hotel therefore I needed to attend the Jobs and Benefits Office on the Holywood Road. I did this straight after reading the letter. There I was informed that in order to receive any benefits I would need to produce my P45. I needed to do this urgently a[s] my rent was due at the end of the month and with no further salary from the Park Avenue it was critical to get sorted. I was informed by the Park Avenue in their letter dated 17 March that the only way to get all outstanding money and my P45 was to return my uniform. I therefore did this promptly after leaving the benefits office. In which I spoke to HR manager at which time I handed my uniform over and asked for my P45.’ Ms Brown however gave evidence that on 22 March 2010 she was processing wages when reception called to say that the claimant was at the front desk and wanted to see her, she went out to say hello and the claimant passed a bag across the reception desk which had his uniform in it and asked for his P45. She told the claimant that she could not prepare it at that time nor intended to that day, he asked could she please do it urgently because he needed it for another matter and she agreed to do so if he would wait, which he did and shortly afterwards she gave him his P45. Ms Brown gave evidence that she saw the claimant at the hotel only once that day, that this was the only encounter that she had had with the claimant on the 22 March 2010, that she assumed he was at that stage in receipt of her letter of 17 March 2010 as he was returning his uniform and no mention was made by the claimant to her regarding ‘trying to resolve the matter’ or as to him having been on holidays. The tribunal finds the claimant’s account that he attended the hotel on 22 March 2010 ‘to try to resolve the matter informally’ strange if he genuinely believed that he had put holidays in place until 22 March 2010 and was not in receipt of Ms Brown’s letter until after a first visit to the hotel on 22 March 2010 as claimed by him. The tribunal finds the evidence of Ms Brown more credible and prefers it to that available from the claimant regarding the events of the 
           22 March 2010. 

 The law

21.	   Under Article 127 of The Employment Rights (Northern Ireland) Order 1996 an employee is dismissed by his employer if the contract under which he is employed is terminated by the employer whether with or without notice.

22.	 Under Article 126 of the 1996 Order an employee has the right not to be unfairly dismissed by his employer.  

23.	Harvey on Industrial Relations and Employment Law/Division D1 Unfair Dismissal/ 2 Termination by the Employer. Introduction: The Concept of Dismissal, sets out at paragraph [201]:
‘There can be no successful claim for unfair dismissal unless there has been a dismissal as defined by the legislation. It is for the employee to prove that he has been dismissed within the meaning of the relevant provision. If dismissal is admitted, the employer should present his case first, putting forward the grounds which allegedly justify the dismissal. The employee then has full knowledge of any allegations levelled against him, and the opportunity to make answer on oath… If the fact of dismissal is disputed it is for the employee to satisfy the tribunal on this point. If he fails to do so, he will lose his case.’

Also at, C. (1) The fundamental question- who really ended it? Paragraph [224.02]:

‘… In a statutory action such as unfair dismissal, it will not merely be a question of who spoke (or even swore) last or even of technically what form the termination took…………. Perhaps the best overall approach to this (before turning to specific issues such as ambiguous language) is the test proposed by Sir John Donaldson in the early case of Martin v Glynwed Distribution Ltd [1983] ICR 511, at 519:
'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?" '

And at,C. Was there in fact a dismissal?/ (2) The problem of ambiguous language, paragraph [225]:
‘So far in the analysis it has been assumed that the question is whether the employer did in fact dismiss or whether the employee did in fact resign. In practice, however, the situation not infrequently arises where the employer uses language which he did not intend to constitute a dismissal but which the employee interpreted as a dismissal. Similarly, the reverse can occur, i.e. the employee being treated by the employer as having resigned even although he had not meant to do so……….’
Harvey discusses in detail at paragraphs [228] to [246] the possible approaches as to how  words used might be interpreted and whether an objective or subjective approach should be adopted depending on whether the words used are considered to be ambiguous or unambiguous to determine whether there was in fact a dismissal, and sets out at paragraphs [247] and [248]:
‘However, even if the subjective approach is adopted for unambiguous language, the following three factors will operate to limit its applicability. First, it will be necessary to establish that the words used really are unambiguous and indicate a clear and present intention to sever the employment relationship. … Second, it will obviously be difficult for the listener to establish that he genuinely thought that the speaker was intending to sever the relationship if that is an unreasonable construction…  if it is not clear how the words were in fact understood, a tribunal might reasonably infer that they were understood as a reasonable listener would have construed them in all the circumstances. Third, … if words have been used in the heat of the moment then notwithstanding that they were unambiguous, they will not constitute a dismissal or resignation if they are withdrawn almost immediately… sometimes regard must be had to events occurring after the words of dismissal or resignation were used.
The preponderance of authority then is in favour of the objective view, i.e. that the question to be answered is how a reasonable listener would have construed the words used in all the circumstances of the case, and that this is the test whether the words used are ambiguous or not. But some doubt still remains in relation to unambiguous words; possibly the speaker has to take the consequences of apparently clear words being taken at face value even though a reasonable listener would not have so understood them. It will depend upon the circumstances in which the words are uttered.’

24.	In summary, in determining the question  as to who really ended the contract of employment, case law suggests the following : 
-If a tribunal cannot reach a decision on the facts that the case can be determined on the basis of the onus of proof. 
- If words used by an employee are unambiguous and so understood by his employer, then no question as to what a reasonable employer would have understood arises and the employee’s unrevealed intention is not relevant.
-If some special circumstances or relevant individual characteristics exist, such as a decision having been taken in the heat of the moment or under extreme pressure, the employee being particularly immature or his intellectual make up being relevant or there being personality conflicts between parties, viewing the facts objectively, an employer may be wrong to interpret events as a resignation if he fails to allow a day or two before accepting a resignation on face value and does not investigate any special circumstances that exist. 
-Only if after considering the words used in the context of the facts of the case, there is considered to be ambiguity in the words used will a further test be relevant as to whether any reasonable employer might have understood the words to be tantamount to resignation. 
- There will be no dismissal in law where unambiguous words were used in the heat of the moment and were withdrawn almost immediately.

Application of Law to the Facts Found

25.	The tribunal considers that claimant’s claim, in his claim form, that he did not resign and had put holidays in place until Monday 22 March 2010 before leaving on the 16 March 2010, whilst in his later statement he refers to calling at the hotel on the 19 March 2010 to speak with Mr Warnock because his leaving early on the 16 March 2010 could have led to disciplinary action appears at odds with a genuine belief that holidays had been put in place before he left. The  claimant’s account that he attended the hotel on 
22 March 2010 ‘to try to resolve the matter informally’ if he genuinely believed that he had put holidays in place until 22 March 2010 and was not in receipt of Ms Brown’s letter until after a first visit to the hotel on 22 March 2010 also appears strange. On consideration of all the evidence before it the tribunal considers that the words and actions of the claimant in the context of the facts of the case were unambiguous, that their clear meaning was that he was resigning and that the respondent on Mr Warnock and Ms Brown’s evidence, which the tribunal finds credible, genuinely understood them to mean that he was resigning. The tribunal accept that the respondent had reasonable cause to interview the respondent in connection with its investigation into the missing merchandise and accepts the evidence of Ms Brown that no accusations were made against the claimant. There is no evidence before the tribunal that the alleged resignation was made in the heat of the moment following the claimant’s interview on 15 March 2010 but occurred the following morning when he alleges that he would have been on his arranged holidays. The tribunal is not satisfied that on the morning of 16 March 2010 that the claimant was under extreme pressure, nor does it consider that there is any evidence to satisfy it that that there were special circumstances or any individual characteristics which would have rendered the claimant’s words and actions ambiguous and placed the respondent under an obligation to make further enquiry of the claimant before accepting his apparent resignation. The tribunal is not satisfied on a balance of probabilities, whether applying an objective or subjective approach, that the contract under which the claimant was employed was terminated by the respondent and accordingly dismisses his unfair dismissal complaint.

Conclusion

26.	The unanimous decision of the tribunal is the contract under which the claimant was employed was not terminated by the respondent and it dismisses the claimant’s unfair dismissal claim.   

Chairman:

Date and place of hearing:  16 August 2010, Belfast

Date decision recorded in register and issued to parties: