THE INDUSTRIAL TRIBUNALS

CASE REF: 5843/17IT

CLAIMANT: 			Alison Wilson

RESPONDENT: 		Colin Patton, t/a Market Fresh Fruit and Veg

DECISION

The unanimous decision of the tribunal is that the claimant resigned from her employment. She therefore was not unfairly dismissed, and her claim is dismissed in its entirety.

Constitution of Tribunal:

Employment Judge: 	Employment Judge Browne

Members: 			Mr I Foster
                                		Ms G Ferguson

Appearances: 	

The claimant was represented by Ms S Gillespie, Ulster University Law Clinic.

The respondent was represented by Mr D Mark, Barrister-at-Law, instructed by Norman Shannon & Co. Solicitors.

ISSUES AND EVIDENCE

1.	The claimant’s case was that she was dismissed on or about 10 August 2017 from her employment as a counter assistant at one of the respondent’s fruit and vegetable shops, where she had worked since July 2013.

2.	On her evidence, she had been feeling unwell while working in the shop on Saturday 29 July 2013 and rang her partner from her mobile phone about it.  On the respondent’s case, she did not realise while on the phone that Mr Stuart Patton, manager, and son of Colin Patton, the respondent, had arrived into the shop.  Stuart Patton’s evidence was that, upon seeing him, she had terminated the call.

3.	He also said that, when he arrived, a customer was walking round the shop.  The claimant denied this in her evidence, and said that Stuart Patton was telling lies about it.

4.	Stuart Patton’s evidence was that he asked the claimant if she wanted to go home, but that she had declined.  In her evidence, she said that he was totally unconcerned about her, and never suggested that she could go home.

5.	According to the claimant, she had suddenly been hit by a virus that day, with symptoms including shaking and feeling very weak, which caused her to fear passing out.  Despite her doctor making no clinical finding of a virus, referring only to “stress-related” illness, the claimant was adamant in her evidence that she had been afflicted by a virus.

6.	Stuart Patton gave evidence that he did not tell his father about the claimant using her mobile phone.

7.	On Monday 31 July 2017, the claimant, apparently at least somewhat recovered from her self-diagnosed virus, arrived at work to find that Stuart Patton, at the direction of his father, had put up a sign telling all staff not to use their mobile phones while at work.  The same notice was also put up in the respondent’s other premises.

8.	The claimant took great exception to this, and remonstrated with Stuart Patton for what she claimed was his constant use of his mobile phone, during which calls she alleged he swore loudly, leading to complaints from customers.  On her evidence, Stuart Patton “cockily replied ‘I don’t care’”.

9.	The respondent denied that Stuart Patton behaved in this way, either regarding his use of the phone or his reply.  The claimant had never mentioned it before, either to him or to his father.

10.	Despite the fact that the notice was addressed to all staff, and not to the claimant personally, she took it upon herself to remove the notice from the counter and throw it in to the bin.  The claimant did not dispute that the respondent had every right to place such a notice on its premises.

11.	The claimant’s evidence was that she then told Stuart Patton that she was unwell and was going home, whereupon he challenged her, saying “are you walking out of this shop?” and she replied that she had already told him she was unwell.

12.	The respondent’s version was that the claimant had shouted and sworn at him and said that she was “fed up” and that she was “done working in this shop” and then became even more irate when he tried to explain that the note was for everyone, in all of the respondent’s premises, asking her to stay and to discuss it with his father.  Stuart Patton said that her tirade ended with her saying “I am away, I don’t give a fuck about you or your dad, I am away and I won’t be back”.

13.	Colin Patton’s reaction upon receiving a phone call from his son immediately after the claimant’s actions was to wait and see if the claimant came back.  He stated that he had “no appetite” to phone her, in light of the way she had spoken to Stuart Patton.

14.	The claimant did not return to work or make any contact in the next few days, with no attempt to lodge a sick line.  On Thursday 3 August 2017, the respondent collected Michelle Hawthorne as usual, to take her to work for him at another shop.  When she got in to the car, she handed him a plastic bag containing a uniform worn by the respondent’s staff.  His evidence was that she told him it belonged to the claimant; he then said “I take it she is not coming back”, to which she replied, “It looks like it”.

15.	Michelle Hawthorne, on behalf of the claimant, told the tribunal that she could not recall her conversation with Colin Patton, but accepted in cross-examination that she probably had told Colin Patton that it was the claimant’s uniform.

16.	It was suggested on behalf of the claimant that the uniform might in fact have belonged to the claimant’s sister, who had left the respondent’s employment some months before this set of circumstances arose.  That case was advanced for the first time at the tribunal, and the claimant’s sister did not give evidence that such was the case.

17.	Colin Patton immediately phoned his accountant, whom he had contacted for advice immediately upon hearing of the claimant’s actions on Monday 31 July 2017.  Colin Patton on 3 August 2017 asked him to forward the claimant’s P45, on the basis that the claimant’s action in returning her uniform confirmed his view that she had in fact resigned.

18.	HIs evidence was that he was “gobsmacked” on Friday 4 August to receive a sick line from the claimant, as he had already arranged for her P45 to be sent out the previous day, on the basis that he had accepted her resignation.

LAW AND CONCLUSIONS

19.	The case law on this area makes it clear that the central point to be resolved is which party ended the contract.

20.	The tribunal considered that the claimant’s evidence was substantially less credible than that on behalf of the respondent.  Her evidence as to her sickness on Saturday 29 July 2017 was not supported by any medical evidence, and she in fact gave clear evidence that her self-diagnosis of a virus was completely at odds with that of her doctor’s professional diagnosis.

21.	Of particular note was the divergence in evidence about the returned uniform.  The case advanced on behalf of the claimant for the first time at the tribunal that it had belonged to her sister was not viewed by the tribunal as credible.  Her sister did not give evidence, and it was never suggested that she was unable to attend to do so.

22.	There was also credible and consistent evidence from Colin Patton as to what he had been told by Michelle Hawthorne.  Michelle Hawthorne could not recall the conversation with Colin Patton.  The tribunal is satisfied that not only was he correct in his recollection of what he was told, but also that what he was told was the truth.  The tribunal is satisfied that the claimant returned her uniform to the respondent via Michelle Hawthorne.

23.	In the current case, the claimant asserts that it was the respondent who terminated the contract of employment, by virtue of improperly relying upon her ambiguous words, without making any enquiry from her as to what the true position was.  The tribunal does not accept that there was any reference by her on 31 July 2017 to illness which might have put the respondent on notice that her departure might have been for any reason other than resignation.

24.	In the case of Kwik-Fit (GB) Ltd -v- Lineham [1992] IRLR 156, a failure by an employer to investigate facts which might give rise to ambiguity in a purported resignation might render invalid any action or reliance by the employer upon such an interpretation.

25.	In the terms of Gale -v- Gilbert [1978] IRLR 453, “It is of course well known that the undisclosed intention of a person using language whether orally or in writing as to its intended meaning is not properly to be taken into account in concluding what its true meaning is.  That has to be decided from the language used and from the circumstances in which it was used”.  The tribunal concluded that, whatever the claimant’s actual motive, her language and actions on 31 July 2017 were sufficiently clear and unambiguous to justify the interpretation and consequent action of the respondent.

26.	The tribunal concluded that there had been no formal “cooling-off” period by the respondent; rather, Colin Patton simply waited to see what happened in the next few days.  His words to Michelle Hawthorne on 3 August 2017, “I take it she is not coming back” were in the view of the tribunal simply confirmation of the view he reasonably and genuinely had formed from the language and conduct of the claimant on Monday 31 July 2017.

27.	The tribunal unanimously found that, within  the terms of Kwik-Fit, there was no requirement for any investigation or time to let the dust to settle before reaching a concluded view, since the respondent reasonably concluded from the objective evidence that the claimant had in fact resigned on 31 July 2017.

28.	Had there been a formal cooling-off period, it might give rise to the view that the respondent did not in fact believe that the claimant had actually resigned.  The tribunal is of the view that there was no such cooling-off period; it was simply that the respondent did not take any action to finalise the view it reasonably and genuinely had formed on 31 July 2017.  Its inaction in that timeframe cannot in the view of the tribunal be deemed from the other compelling evidence to indicate a contrary view of its expressed belief.

29.	That period of time also gave the claimant ample chance to fill the vacuum by making a meaningful, or any, effort to re-establish contact with the respondent.  She did not take it, which reinforces the view that, either she did not want to, or that she was waiting for the respondent to make the first move, which it was under no obligation to do in view of its interpretation of her language and conduct.

30.	There was no satisfactory, or any, indication from the claimant as to what she from her behaviour realistically expected the respondent to think.

31.	The tribunal is unanimously of the view that the respondent on 31 July 2017 genuinely and reasonably was entitled to, and did, interpret the claimant’s words and conduct as amounting to her resignation, effective from that date.  The tribunal is also of the view that, whatever her ultimate goal was, she used language and conduct calculated to induce the respondent to forming that view.  She therefore was not dismissed.

32.	The claimant has therefore failed to satisfy the tribunal that she was unfairly dismissed, and her claim is dismissed in its entirety.

Employment Judge:

Date and place of hearing:    10 and 11 April 2018, Belfast.

Date decision recorded in register and issued to parties: