Barr v Glenfresh Foods Limited [2017] NIIT 01810

THE INDUSTRIAL TRIBUNALS

CASE REF: 1810/17

CLAIMANT: Martin Sean Barr

RESPONDENT: Glenfresh Foods Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The respondent shall pay the claimant compensation in the sum of £10,304.56 .

Constitution of Tribunal:

Employment Judge: Employment Judge Leonard

Members: Mrs J Kennedy

Mr T Carlin

Appearances:

The claimant was represented by Mr Kennedy, Barrister-at-Law, instructed by John Fahy & Co, Solicitors.

The respondent was represented by Ms Maguire, Barrister-at-Law, instructed by Worthingtons, Solicitors.

REASONS

1. The claimant in his claim complained that he was employed by the respondent and that he had been unfairly dismissed by being posted a P45 on 15 February 2017. This, the claimant contended, occurred after he had provided to the respondent a medical certificate certifying a period of six weeks' absence due to illness. The claimant contended that on 7 February 2017 a job offer was posted on social media, matching his job description and hours of work, by an employee of the respondent. He alleged that, at a meeting with respondent on 7 February 2017, a member of the respondent's management indicated to him that the respondent was not in a position to pay him statutory sick pay, nor that his job would be held open for the period of six weeks during his absence from work and that he ought to apply for Social Security benefits. He denied that he had resigned from employment with the respondent on 7 February 2017, or at all.

2. The respondent in its response denied that the respondent had dismissed the claimant from employment and contended that the claimant had resigned from employment on 7 February 2017. The respondent indicated that the respondent's management held a reasonably-concluded view that the claimant had resigned from employment on 7 February 2017 when he walked out of the place of employment, stating that, "he'd had enough."

THE ISSUES

3. The primary issue for determination by the tribunal was whether the claimant was dismissed from employment by the respondent or whether, in the alternative, the claimant terminated his own employment. If it were to be determined by the tribunal that the claimant was dismissed by the respondent, the tribunal had to determine the reason for any such dismissal and if such a dismissal was fair, given the applicable statutory considerations and, further, whether the respondent acted reasonably or unreasonably in treating it as sufficient reason to dismiss the claimant. If any dismissal of the claimant by the respondent was found to be unfair, the tribunal had to determine the matter of remedy.

SOURCES OF EVIDENCE

4. The tribunal considered the claim form and the response thereto. The tribunal was provided with an agreed bundle of documents, written statements of evidence from the witnesses (which were adopted by each of the witnesses) and the tribunal also heard the oral testimony of the witnesses, who were subject to cross-examination and to a small amount of clarificatory questioning by the tribunal. The tribunal heard evidence from the claimant on his own behalf. On behalf of the respondent, the tribunal heard evidence from a director of the respondent company, Mrs Kathleen McShane, a manager, Ms Siobhan Devenney and from another manager, Ryan McShane.

FINDINGS OF FACT AND CONCLUSIONS RELEVANT TO LIABILTY

5. The tribunal determined the following material matters of fact, on the basis of an assessment of the evidence in the matter, upon the balance of probabilities:-

5.1 The respondent is a company of limited liability and is relatively large in size; it presently employs approximately 100 personnel. It had been based in Donemana, County Tyrone, up to 2008, but it is now located in Strabane, County Tyrone. It has been in existence for some 18 years. The respondent's business is that of sourcing produce, including fruit and vegetables, preparing and packing this and selling this produce, primarily to the catering industry. The material part of this commercial activity which concerns the respondent's employment of the claimant consists of the packaging, dispatch and transportation of the respondent's products to various customers. There is no issue about the fact that the claimant was an experienced and adept employee, possessing good organisational skills and holding a good understanding of the industry in which he was employed by the respondent. In evidence, the respondent's witnesses indicated that, in broad terms, they valued the claimant's experience and his work.

5.2 The claimant had a number of periods of employment with the respondent company, the first of these commencing upon some undefined date prior to 2008, when the business was based in Donemana. This period of employment ended in June 2008. The claimant subsequently worked for the respondent, by this stage located in Strabane, commencing 10 December 2011. That employment continued until 3 April 2014. The claimant then commenced a third period of employment. There had initially been an issue as to the precise commencement date in respect of this third period of employment. This issue was even transposed into the claimant's own schedule of loss provided to the tribunal (which stated "Start Date 01/02/2016"), that being the date initially suggested by the respondent's response to the claim. However, it was agreed and confirmed to the tribunal that this third period of employment indeed commenced on 1 September 2015. It was not in contention that, at the material time, the claimant had completed one full year's service with the respondent, that he was aged 41, that his gross weekly wage was £240.00, with his net wage being £220.00.

5.3 The claimant continued to work for the respondent from 1 September 2015 until the employment came to an end, under circumstances which are in dispute between the parties. Matters of contention also include the circumstances under which the two earlier periods of employment had come to an end and the issue of whether these were ended by the claimant resigning, or by the respondent terminating the employment. A further issue presented for the tribunal to consider was whether the respondent's management might reasonably have taken the view that the claimant, at the material time (that is to say early February 2017) had a tendency or propensity to "walk out", being thus instrumental in the ending of his own employment. In respect of these three periods of employment and the circumstances under which they came to an end (and regarding the suggestion advanced by the respondent that the claimant had a propensity to quit), the tribunal carefully assessed all of the available evidence, attaching due weight as appropriate based on the entirety of the evidence and the individual parts. The tribunal, conducting this exercise, reached specific conclusions of fact, material to the issues in the case, such as are mentioned below.

5.4 In terms of the respondent's management, the tribunal was informed that the directors of the limited company were Mr John McShane and his wife, Mrs Kathleen McShane. It seems that John McShane, whilst the business was based in Donemama, conducted the business with a Mr O'Neill and that Kathleen McShane was not involved with the business in a management capacity at that time. However, from 2008 onwards, when the business relocated to Strabane, both John and Kathleen McShane were directors and together they constituted the respondent's senior management. Ryan McShane is a son of John and Kathleen McShane and he is employed by the respondent as a manager. His job functions include IT. He is not a director. Also employed at senior level is Ms Siobhan Devenney. She is a manager. Her particular responsibility relates to compliance regarding food industry standards and regulations. Siobhan Devenney informed the tribunal that she had gained 20 years' experience working with Asda, before joining the respondent. Her specific experience included payroll, human resource functions, food regulation and health and safety matters. Siobhan Devenney's evidence to the tribunal, initially in her witness statement, was that she had worked for the company for a period of three years prior to the events which concern the tribunal, these events emerging in January and February 2017. However, on further questioning, Siobhan Devenney clarified that she was mistaken and that she had worked for 18 months at the material time. John McShane did not give evidence to the tribunal. Accordingly, the tribunal gained little direct information regarding John McShane's function, specifically concerning any of the material events and circumstances which are in contention in this case. Both Kathleen McShane and Ryan McShane provided written witness statements and gave oral evidence to the tribunal, as did Siobhan Devenney.

5.5 The tribunal, it has to be said, found parts of the evidence introduced by the claimant and on behalf of the respondent to be problematical. There were regrettable internal inconsistencies and issues of cogency and credibility emerging from the evidence of both sides, which indeed did both sides no credit. This made the precise determination of matters of fact to be a somewhat difficult exercise. Nonetheless, the tribunal conducted a detailed analysis of the available evidence and reached conclusions concerning relevant facts upon the balance of probabilities. If not every matter that has been raised in evidence in the case, or in corresponding submissions in respect of that evidence, is recited in this decision, it is not to be taken that the tribunal did not conduct the fullest assessment of all of the evidence.

5.6 There were significant conflicts of disputed fact. Dealing firstly with issues of contention concerning the two earlier periods of employment, the tribunal heard conflicting evidence, on the one hand, from the claimant who stated, initially, in his oral evidence that he had not resigned from employment on either of the two earlier occasions. In evidence, Kathleen McShane informed the tribunal that her spouse and co-director, John McShane, had informed her that the claimant had resigned from employment in 2008. At that stage she had not been involved in the respondent's management. Kathleen McShane also stated that the claimant had resigned, again, following a second period of employment on 3 April 2014. John McShane, as mentioned, did not provide evidence and in the absence of any corroborative evidence from him and in the face of a denial from the claimant in his oral evidence that he had resigned on either of the two previous occasions, the tribunal had to determine specific issues concerning the cogency of the evidence in regard to how both previous periods of employment had come to an end.

5.7 The tribunal particularly noted an apparent conflict between the claimant's oral evidence to the tribunal, to the effect that he had not resigned on both occasions and other evidence. For example, the tribunal regards it as significant that the claimant's legal representatives, Messrs John Fahy & Co, wrote a letter to the respondent dated 10 March 2017. This letter, on its face, appears to make the concession, by the use of the plural, that the claimant had resigned on "previous occasions" (the tribunal's emphasis). It must be reasonably presumed that this letter was written by professional legal representatives on foot of the claimant's express instructions. Further, it is noted that there is no evidence that, despite the claimant's contention that previous periods of employment were brought to an end by the employer, the claimant had taken any formal action in respect of what were alleged by him to have been two earlier dismissals. As the claimant's oral evidence proceeded, he did appear to be moving, somewhat reluctantly it has to be said, towards a concession that his own actions might have played a large part in the ending of the second period of employment, by stating that he had put his own family interests before work. However, he could not quite bring himself to concede, expressly, that he had resigned in April 2014. It is noted that in the claimant's witness statement, signed by him and dated 23 August 2017 (which he formally adopted before the tribunal as his evidence), at paragraph 2, the claimant states "... but terminated my employment approximately in June 2008". Notwithstanding this, in his oral evidence he maintained that he did not resign in 2008. This, perhaps, serves to illustrate just one of what were regrettably many issues emerging in the case regarding cogency of evidence.

5.8 The respondent's witnesses (although it has to be said not from first-hand knowledge in either the case of Kathleen McShane or Siobhan Devenney as regards the events of 2008 and then, only in the case of Kathleen McShane, regarding 2014) maintained that the claimant had resigned on both previous occasions. Assessing the weight of any available evidence, the tribunal's conclusion is that the claimant was indeed instrumental in bringing to an end the two earlier periods of employment and that the respondent did not dismiss him, on either occasion. The foregoing finding of fact is material insofar as one of the respondent's arguments is that the respondent's management held a permissible and a reasonably-formed view that the claimant had a tendency or propensity to "walk out" of employment when things did not go his way. When this issue was further explored with the respondent's witnesses, concerning why the respondent would then proceed to re-employ a person with such a propensity, it was quite clear from the evidence that the respondent's management, despite everything, did value the claimant's work and his personal contribution to the respondent's economic activities.

5.9 Both Kathleen McShane and also Siobhan Devenney did endeavour to suggest that there were indeed other occasions when the claimant "walked out" but then very shortly afterwards he appeared contrite, apologised, and the status quo was resumed. Because the evidence in respect of these latter occasions was so vague and imprecise, the tribunal must make clear that it makes no specific findings of fact in support of this suggestion. Accordingly, the tribunal is only concerned with two earlier periods of employment, above mentioned, and then with the third period of employment.

5.10 The tribunal did not receive specific, documented, relevant evidence concerning working patterns and staffing, which might have been material to this case and which might otherwise have been expected. From the evidence available, the claimant's normal work pattern, at the material time, this being towards the end of 2016 and into early 2017, involved a night-working shift pattern. This consisted of three 10-hour shifts that were worked on a Tuesday, Thursday and Sunday. It is understood that each shift commenced at 9.00 pm and ended at 7.00 am. The claimant explained to the tribunal that this specific work pattern suited him on account of his domestic situation.

5.11 There was an issue of dispute regarding whether other workers worked this shift pattern and the same hours as did the claimant, to which the tribunal shall return below. The claimant, being an experienced and capable worker, exercised a supervisory function concerning other employees engaged in the manual loading and dispatch activities. Part of the difficulty in properly assessing the working arrangements was that, regrettably, the tribunal was provided with very little information (and indeed a complete absence of documentation) regarding work patterns of other employees. Part of the reason for this arises on account of an apparent endeavour by the respondent's side to introduce late evidence concerning shift patterns. This endeavour was resisted by the claimant's representative. A decision was taken by the respondent's representative not to proceed with the original endeavour to adduce this evidence, in the face of this objection. Whether for this or for other reasons, the tribunal was denied a comprehensive picture of relevant working patterns and shifts. However, two specific employees (or workers) were mentioned by name in oral evidence from Ryan McShane, both of whom it is believed worked night shift on what is understood to have been the same days as the claimant. These were named as Conor McCallion and Chris Donaghey. The claimant's assertion was that one of these (or at least one other of the employees working on the same shift as he did) worked for three nights of 8 hours each and that one person was "self-employed". It is somewhat regrettable that more satisfactory evidence was not provided; any such might have been of assistance to the tribunal. Regrettably, therefore, any evidence was scant and largely insufficient to enable the tribunal to draw a proper view and specific conclusions of relevant fact.

5.12 The tribunal now turns to a centrally-important issue in the case. This concerns the claimant's illness and his subsequent absence from work in the early weeks of 2017. All dates referred to hereinafter are references to the early months of the year 2017. The claimant was unfortunate enough to be diagnosed with an illness which required day-procedure surgery, arranged for 31 January. The claimant had properly informed the respondent, in advance, on 19 January concerning his proposed absence from work. It was believed, at the time, both by the claimant and by the respondent, that he would have been absent for a very brief period, a few days only. As it regrettably transpired, once the day-procedure had been conducted on 31 January, some subsequent tests caused a little concern. The claimant was then certified unfit to work for a longer period than had been anticipated.

5.13 It had been originally thought that the claimant would have been fit enough to return to work on either Thursday, 2 February, or (more realistically) on the next normal working day, Sunday 5 February. The claimant on Thursday 2 February called in the evening at the respondent's premises and he gave his work keys to a fellow employee, Chris Donaghey. He apparently did this because the keys would have been required to conduct the night shift on that evening (which would have otherwise been a normal working evening for the claimant). The claimant's medical practice had, that same day 2 February, arranged for a blood test to be conducted by the practice nurse. The result of that test was to be discussed at a further appointment arranged with the claimant's GP, Dr Rankin, on Tuesday 7 February. The evidence was that Kathleen McShane had covered the supervisory part of the claimant's work duties on his days of absence, with another casual employee conducting the manual handling work.

5.14 On 6 February, at the respondent's request, the claimant called to the respondent's premises. This was in order to have discussions about his medical situation and fitness to work and any resultant impact upon the respondent. The claimant attended in the late afternoon, at approximately 4.30pm. He had discussions with both Kathleen McShane and also Siobhan Devenney. The claimant informed them that he had an appointment arranged with his GP for the following morning, at 9.20am. He indicated that he intended to call with the respondent after this appointment had concluded and he suggested that this might be about 9.30am. There appears to have been a joke made in the course of the conversation that it would have been a very quick appointment indeed if the claimant had come free from a GP's appointment in order to be able to attend the workplace by 9.30am. There was, however, nothing in the evidence suggesting that any manner of a formal meeting had been scheduled to take place on the following day, 7 February, and indeed at that specific time of 9.30am, but there was merely a discussion that the claimant would attend after his GP's appointment had concluded. Siobhan Devenney seemingly understood that the claimant would call in by mid-morning.

5.15 The discussion between the three then turned to the possibility of the claimant performing lighter duties instead of taking time off work (and instead of his going on to statutory sick pay (SSP)). When this light duties suggestion was put to him, the claimant declined the suggestion. He appears to have been motivated by a number of factors, including (from what he indicated in his evidence) that he would have felt uncomfortable in taking full wages while not carrying out his customary duties in full, with consequent additional duties falling to be performed by other workers. This appears also to have been coupled with the claimant evidently feeling that he would, despite any assurances given by management, in reality be drawn into performing some degree of physical work. He felt he was incapable of any physical work given his medical condition at the time.

5.16 There also appears to have been a discussion in the course of the meeting on the afternoon of 6 February, this taking place whilst the claimant was still present, about how the claimant's duties would be temporarily filled. The claimant suggested that a (named) worker who had carried out work for the respondent on a casual basis could cover for him. However, this suggestion did not find favour with management as they took the view that this person did not have the claimant's level of administrative skills and therefore could not be a proper replacement for him. The claimant's suggestion was accordingly not proceeded with. Having declined the suggestion of light duties, the claimant then indicated that he would call with the respondent the following day, once he had discussed the results of the tests with his GP.

5.17 After the claimant had departed that day there were apparently further discussions between John McShane, Kathleen McShane and Siobhan Devenney. Again the evidence regarding this was somewhat problematical as to what precisely was discussed and agreed and with whom, but the tribunal's best assessment is that a decision was made at least by John McShane and Kathleen McShane that there would be a Facebook media advertisement for additional staff to assist with the night shift.

5.18 The tribunal notes that the only specific information that could have been available to the respondent's management at this point was that the claimant had declined light duties and, further, that management might have formed the impression from discussions with the claimant that his absence was going to be for a longer period than had been originally anticipated. However, there was no medical certification available to management at this stage. The tribunal's assessment of the evidence also is that there was not any definitive indication given by the claimant, in the course of the meeting on 6 February, concerning how long the claimant might be absent, but just that it would be for longer than originally anticipated, but the respondent certainly had no medical information, at that point in time, suggesting that the claimant was indeed to be further certified as unfit for work for a period extending up to mid-March. It was thus quite possible that the claimant might, perhaps, have been certified unfit to work for only a few more days or for a relatively brief period. There was certainly no definite indication at that point of any requirement to plan for a longer-term absence regarding the claimant's post. Any planning in that regard therefore had to await the claimant's medical assessment scheduled for the following day and had to await the possible issue of a medical certificate of unfitness, covering a specific, definite, period of time.

5.19 The medical appointment was scheduled with the claimant's GP, Dr Rankin, on 7 February, at 9.20 am. The appointment was delayed; the claimant did not see Dr Rankin until 9.50am. Dr Rankin issued the claimant with a six-week medical certificate, certifying the claimant to be unfit to work from 5 February until 18 March 2017. It is noted that one option contained within the medical certificate form might have been for Dr Rankin to certify the claimant fit to work, but taking account of such matters as amended duties or workplace adaptations. However, Dr Rankin did not certify this latter and did certify that the claimant was unfit to work, without any qualification.

5.20 There was a "knock on" effect flowing from the delay in conclusion of the GP appointment. The claimant had that day arranged to bring his wife to a medical appointment in Enniskillen at 11.00 am. He believed that he could have first attended the meeting with the respondent and then conveyed his wife to that appointment after his meeting with the respondent had concluded. In view of the delay, he was unable to do so and he brought his wife straight to her appointment and did not call with the respondent that morning. At approximately 11.00 am, or a short time after this, the claimant sent a text message to Siobhan Devenney indicating that he had been delayed but that he would attend the workplace later that afternoon for a meeting. The claimant eventually attended the respondent's premises at a time variously stated, in different portions of the evidence, to be at either 4.00pm or 4.30pm; however, not much turns upon the exact timing.

5.21 The tribunal now examines a significant issue in the case. This relates to the transmission of a social media message (on "WhatsApp") by Ryan McShane. Looking first of all at the context, Ryan McShane in his evidence to the tribunal denied having been aware of the content of any discussions between Kathleen McShane, John McShane and Siobhan Devenney which had taken place on the afternoon of 6 February 2017, concerning the claimant. Ryan McShane, in his evidence, emphatically denied that he had been instructed by the respondent's management to issue a social media message regarding the claimant's post.

5.22 He was extensively questioned about this in cross-examination. He steadfastly maintained this position, under questioning. He stated that he was personally very much aware that the respondent's night shift staff had been, at this particular time, under very significant pressure to get all loading done within the timeframe required in the shifts. His mother, Kathleen McShane, was also working these nightshifts. He stated that he was concerned for his mother's welfare. For this reason only, so he maintained, at his own initiative and without any instruction from management, he had placed a social media posting on a social media group to which he belonged. This group was called "Roes Banter". The social media group, he stated, included his friends who had a common interest in local football and many of these friends were from a farming background. As such, they possessed driving licences which included "Class C". Such an inclusion would, he stated, have permitted these persons to drive commercial vehicles, including the respondent's delivery lorries. They also worked seasonally in farming work and thus would have had a degree of flexibility.

5.23 Ryan McShane proceeded to post a message which the tribunal shall now set out in full (as it appears in a paper copy of the social media message provided to the tribunal):-

" Anyone know anyone looking 30 hour job? Night shift, 3x 10 hour shifts 9pm- 7pm (sic) . Term time e.g. School holidays off eg two months in summer and Easter, Halloween etc. Just thought I'd ask!

12.18PM

Nights are Sunday, tue and thurs

12.18PM

Loading vans is the job

12.19PM "

5.24 The evidence from Siobhan Devenney was that the claimant's absence placed the respondent under considerable pressure. Discussions took place at management level on the afternoon of 6 February 2017. The tribunal's best assessment of the evidence is that these discussions had initially included the claimant (who had indeed made a suggestion of the casual worker covering for him, which suggestion had been rejected), but that the discussions then continued after the claimant had departed, at approximately 4.30 pm or perhaps a little later. According to Siobhan Devenney, these discussions resulted in a decision being taken by senior management (in other words by John McShane and Kathleen McShane) to seek additional personnel. Siobhan Devenney stated to the tribunal that senior management made a decision to advertise by Facebook. However, Siobhan Devenney was adamant, throughout the course of her evidence, that she was at this time entirely unaware that Ryan McShane had made a social media posting. Indeed, she indicated that she had not become aware of the social media posting and its content until much later.

5.25 The issue for determination by the tribunal was whether or not the respondent's management had made a decision to engage extra staff and whether that decision had resulted directly in Ryan McShane, at the request or direction of management, posting the social media message mentioned above, or in the alternative, whether Ryan McShane had made this media posting entirely of his own initiative and without any instruction or direction from management. It is noted that Ryan McShane's evidence steadfastly maintained, under cross-examination, the position that he had certainly not been told of management's decision to look for additional staff and he further maintained that the timing of the social media message was a mere coincidence.

5.26 It was put several times to Ryan McShane in cross-examination that he had been fully aware that the claimant was about to be off on long-term sick leave and that there had been discussions at management level to which he was privy, leading directly to him posting the social media message. He repeatedly denied this to be the case. It was suggested that he had made this social media posting in a somewhat covert way. He had confined it to a social media group, Roes Banter, to which effectively the broader public would not have had access. He denied these suggestions. He maintained that he had at this time no information regarding the claimant's situation and his possible absence from work. He steadfastly maintained that there had certainly been no management request made to him which had resulted in him making this social media posting.

5.27 The tribunal examined the evidence concerning the content of the social media message. This relates both to any evidence concerning the specific timing of this message and also any broader context. The message was initially posted at "12:18 PM", with the first portion of text consisting of six lines; this was then followed by a further posting consisting of one line, also timed at "12:18 PM". Then followed a posting consisting of five words contained within one line, timed at "12:19 PM". If the tribunal's assessment of this documentary evidence is correct, the entire message was transmitted over a period of one to two minutes.

5.28 The tribunal then examined any evidence concerning the date of the posting, the transmission time being apparent from the documentary evidence, but not the date of transmission. The tribunal's conclusion (discounting the suggestion, which had arisen in part of the case, that the transmission could have been made on 7 February) in the light of the claimant's own evidence that this media posting came to his attention at 10.48 am on 7 February and in the light of certain additional evidence, was that this social media posting was made by Ryan McShane on 6 February, commencing at 12.18pm. If that conclusion is factually correct, the timing of this message preceded, by number of hours, any discussion engaged in by management, which occurred in the late afternoon on 6 February.

5.29 The foregoing date and timing indeed appears to support Ryan McShane's evidence that he was motivated by the situation his mother was facing, having to work night shifts both to cover for the claimant on a temporary basis and also to meet other work pressures and by the general perceived need to secure additional work and not by any decision to recruit staff to do the claimant's job, either on a temporary or a longer term basis. Notwithstanding the suggestion to that effect, on behalf of the claimant, there was no persuasive evidence supporting the proposition that there had been any discussion and decision made by management (whether to engage additional staff, generally, or indeed to engage staff to replace the claimant) at the time of, or prior to, the social media posting being issued by Ryan McShane. Accordingly, any management discussion that day and any resultant decision to seek additional staff occurred after (and not before or at the time) Ryan McShane had posted the social media message.

5.30 Much was made in submissions on behalf of the claimant concerning the similarity of the job details contained in Ryan McShane's social media posting made on the morning of 6 February, to those of the claimant's post. As mentioned, in view of the paucity of evidence concerning shift patterns required to be worked and of personnel resource requirements to fulfil these shift patterns, the tribunal had some difficulty in taking a view in respect of the conflicting evidence that existed. The claimant's contention was that he was the only nightshift worker working in this capacity for three 10-hour shifts and that the other two named individuals working with him worked either, in one case, "casually" or else, in the other, for three 8-hour shifts. It is for this reason that the claimant states that he believed that the posting made by Ryan McShane was in respect of "his" job.

5.31 Ryan McShane's evidence was that all personnel were taken on on a three 10-hour shift basis and that it was up to the claimant, as supervisor or charge hand, to supervise that arrangement. If this was (or ought to have been) the case, it would have explained Ryan McShane's description of the hours in the way that he did. Further evidence that the respondent's aside had endeavoured to introduce might have clarified this. However, the respondent's side conceded to the claimant's objection on the point of late evidence; no additional evidence was introduced on the issue. The extent of any evidence regarding shifts provided to the tribunal was accordingly not very satisfactory. However, if one accepts the evidence (based primarily on the timing stated on the face of the copy of the media message and upon the claimant's own evidence as to the day and time that he received this), Ryan McShane, on balance, could not have had the necessary information, either on his own behalf or emanating from management, upon which to construct an advertisement for a post directly based upon any assumption that it would be for either a temporary or longer-term replacement for the claimant. This is so for the reason that he could not have had, at this specific time, any definitive information that the claimant would have been on long-term absence.

5.32 He indeed denied knowing anything about the claimant's situation at that time. Even if his general evidence in that regard were not be believed, nonetheless any specific knowledge that he might have had, as a matter of fact in terms of the timing, preceded the claimant's attendance, in the late afternoon of 6 February, whereupon the claimant seems to have provided some more information to management about his possible absence extending beyond that which had been originally anticipated.

5.33 Ryan McShane described this as being a "coincidence". In view of the foregoing evidence and the timing of things, the tribunal's conclusion is that this posting, made on 6 February, was unconnected with the management discussion, later on that day and after the claimant had called into the work premises and after any further decisions had been made by management concerning arranging cover for the claimant's post. Things could simply not have occurred in the way in which the claimant's submissions asserted.

5.34 By some means, regrettably once again on account of the vagueness of the evidence not made entirely clear to the tribunal, the foregoing message posted by Ryan McShane on 6 February was brought to the attention of the claimant. As mentioned, the claimant stated that this came to his attention at 10.48 am on 7 February. It appears that he had driven his wife to the appointment in Enniskillen arranged for 11.00am. The tribunal believes that he very probably picked up the message when he had arrived in Enniskillen. Upon reading this message, the claimant's conclusion was that this message concerned his own job.

5.35 He later on that day, on the afternoon of 7 February at some time after 4.00 pm, met with Siobhan Devenney. Siobhan Devenney gave the time at 5.00 pm. To indicate yet another illustration of the somewhat unsatisfactory evidence, of which there were many examples, Siobhan Devenney indicated to the tribunal in her oral evidence that this meeting was in a downstairs office. However, further evidence suggested that the meeting took place in an upstairs office, accessed by a staircase. The tribunal accepts that this latter was the case. Kathleen McShane, who also wished to meet with the claimant, was engaged in other business at the time of the claimant's arrival. She was located in an office opposite and she intended to attend the meeting a short time afterwards, as soon as she was free to do so.

5.36 Siobhan Devenney's evidence was that she was somewhat concerned at the delay in the claimant attending the meeting that day which she had believed would be held about mid-morning as soon as the claimant had concluded his doctor's appointment. She indicated to the tribunal that she was concerned about the claimant's state of health in the light of his perceived delay in attending. However, from other evidence, Siobhan Devenney had received a text from the claimant towards the end of the morning (perhaps about 11.00 am or not long after) indicating that he would be there at about 4.00pm. After his arrival, Siobhan Devenney and the claimant proceeded into an office, being a room accessed by a wooden carpeted staircase. The door of the office was then closed. Siobhan Devenney had some papers on the table or desk in front of her. It is believed that both parties were seated. Siobhan Devenney's contention was that the papers on the desk in front of her consisted of a collection of papers concerning general business matters and, specifically, that these are did not include any papers relating to Social Security benefits.

5.37 The claimant's contention was that he observed papers on the table which related to Social Security benefits. The tribunal had to resolve this specific conflict in the context of further conflicts of evidence concerning what transpired in the course of this meeting. The meeting, which seems to have lasted approximately 5 minutes only, commenced, based upon the available evidence, with the claimant initially talking (apparently only very briefly) about his state of health. However, he then almost immediately stated to Siobhan Devenney, "Have I still got a job?" She indicated to the tribunal in evidence that she was shocked by this question; however she reassured the claimant that he did. She responded to the claimant by asking him why he had asked that particular question. The claimant indicated that he had read a social media message regarding a night shift job and that he believed that this was his job which had been advertised.

5.38 Siobhan Devenney replied that she was not aware of the existence of this message, but suggested that it may have related to an attempt to support the shortcomings the night shift team was then experiencing. The tribunal, particularly, considered this part of Siobhan Devenney's evidence. The tribunal's best assessment of the evidence is that, without knowing that Ryan McShane had made the particular social media posting mentioned above, on the previous day, Siobhan Devenney had assumed from what she had heard from the claimant that there might have been some social media advertisement issued as a consequence of the management discussions which had taken place on the previous evening, the details of which she was unaware. It is perhaps understandable how Siobhan Devenney might have formed such a conclusion.

5.39 However, the claimant seemed unconvinced by the explanation afforded. Examining all of this, it appears that the claimant was referring to a specific social media posting (that made by Ryan McShane) which had been brought to his attention the following day, whereas Siobhan Devenney was making the assumption (assuming that the claimant was referring to something different) that a social media message might have been issued after the management discussions occurring on the evening of 6 February. Accordingly, she appears to have believed that this latter might have been issued by management without her specific knowledge. Effectively, as can be seen, the two were talking at cross purposes.

5.40 Siobhan Devenney's evidence was that she endeavoured to reassure the claimant, but that he was having none of it. The claimant stated that he observed Social Security benefits papers present on the table. His evidence was that Siobhan Devenney stated to him that the respondent could not afford to pay Statutory Sick Pay (SSP) and also to pay someone else to do the claimant's job. In her evidence, Siobhan Devenney strenuously denied having said any of this, nor that she had in her possession Social Security benefits papers at this meeting.

5.41 There was accordingly a stark conflict in the evidence between the two, with no corroborative material to assist. The tribunal had to determine which evidence was the more credible. This had to be determined in the light of witnesses in this case having, to a greater or lesser degree, particular cogency and credibility issues attaching to their respective evidence. The tribunal, in this respect, noted the submissions made by the parties' representatives in regard to the weight properly to be attached to evidence of the witnesses and matters of general cogency and credibility.

5.42 Siobhan Devenney's further evidence was that the claimant had been holding under his arm a folder of documentation. This apparently consisted of some technical documentation concerning work rotas and shifts and it also contained the medical certificate from the claimant's GP, certifying him unfit to work for a period of six weeks until 18 March 2017. According to Siobhan Devenney he "tossed" this documentation onto the table at the time of speaking certain words which, as alleged, are of fundamental significance to this case.

5.43 Regarding the words that were alleged by Siobhan Devenney to have been spoken to her by the claimant, these are fundamentally in contention between the parties. Siobhan Devenney's version commenced (as set out in her witness statement) with an indication of a slightly modified version of the language which was subsequently alleged to have been used. In her witness statement she stated that the claimant had got up, saying, "he'd had enough". However, Siobhan Devenney, in her oral evidence to the tribunal, stated that the following words were allegedly spoken by the claimant: "F... this, I've had enough!" She stated that she was shocked at the change in the claimant's attitude; that she had never seen him like that. She described his demeanour as being "nasty". She believed that he was not prepared to speak further to her and that he seemed determined and convinced that he was being replaced.

5.44 Siobhan Devenney's evidence then continued that the claimant left the room and that he "stomped" down the stairs. She stated that she followed the claimant out of the room and said to him, or called after him, words (in evidence she could not remember the precise words that she had used) along the lines of, "don't be like that". She stated that she generally endeavoured to indicate to him that the claimant had misunderstood the situation.

5.45 For his part, under cross-examination, the claimant denied firstly, that he had been in a temper. The best epithet that he was prepared to concede to describe his mood at the time was that he was "irked" or that he was "hurt", but he specifically denied that he had been in an angry mood. He certainly denied that he had used the words, "F... this, I've had enough!" He denied that he had left the room abruptly and that he had "stomped" down the stairs. The tribunal accordingly had to determine the facts of what actually have occurred, in the light of this strongly-conflicting evidence. It did so by examining the context in any other available evidence.

5.46 Kathleen McShane was located in an adjoining room or office at the time of this meeting, intending to attend the meeting with the claimant as soon as she could. The door to her room was closed. Kathleen McShane's evidence provides some degree of corroboration to Siobhan Devenney's account, stating that she clearly heard raised voices and the sound of a person "stomping" aggressively down the stairs. This was so, notwithstanding the carpeting of the stairs. Kathleen McShane states that she then heard, so she recalled, Siobhan Devenney calling, "Sean, come back" and she realised that the "stomping" noise had been caused by claimant. Almost immediately, Siobhan Devenney (and this is derived both from her own evidence and also from the corroborative evidence of Kathleen McShane) came into the room were Kathleen McShane was present, together with John McShane. Siobhan Devenney stated, "Sean Barr has walked. He wasn't interested in anything I had to say". Kathleen McShane's evidence was that, at that point, John McShane remarked, "This is the third time he's walked". As mentioned, no evidence was forthcoming to assist the tribunal from John McShane whether to provide further corroboration or information, or otherwise.

5.47 Both Siobhan Devenney and also Kathleen McShane indicated to the tribunal that they had both formed the view, at this specific time, that the claimant had "walked out of the job" upon the conclusion of this meeting between the claimant and Siobhan Devenney. Kathleen McShane's view was formed, so she indicated, on account of what she was immediately told in the aftermath by Siobhan Devenney and also by the fact that she was aware that the claimant had done this before. This awareness that the claimant had done this before, emanated from her own personal experience in regard to the second period of employment and how it had come to an end in April 2014 (as she was involved with the respondent's management at that time) also from what John McShane had told her, specifically, concerning the conclusion of the earlier employment in 2008, before she had been involved in the respondent's management.

5.48 As regards Siobhan Devenney's understanding of things, she indicated that she formed her view from what she had been informed by the other two concerning these two earlier periods of employment and how these had come to an end. As mentioned, both of these earlier employments had concluded prior to Siobhan Devenney joining the respondent; accordingly, she would have had no contemporaneous first-hand knowledge of these earlier events.

5.49 Despite having formed a view that the claimant had resigned from employment, neither Siobhan Devenney, this to be seen in the light of her responsibility for the respondent's human resource function, nor any other member of the respondent's management took any further active steps in the immediate aftermath and indeed throughout the next few days. Whilst it appears that human resource administration did fall, at least in most respects, to Siobhan Devenney, she did not write to or otherwise endeavour to communicate with or contact the claimant. She nonetheless maintained her conclusion, so she stated to the tribunal, that the claimant had indeed resigned from employment at that specific time and on that specific day. This was a view also taken by Kathleen McShane and by the respondent's management generally, so it would appear and they stated that they were in no doubt at all about this resignation which they felt was entirely unambiguous.

5.50 The next action taken by the claimant was to arrange a meeting with his local Citizens' Advice Bureau (CAB). The CAB assisted the claimant in the preparation of a letter to the respondent, dated 9 February. This letter stated that, following consultation with an adviser from CAB that day, the claimant had been advised to obtain a written copy of his terms and conditions of employment, in the absence of any formal employment contract. The claimant requested that this be forwarded to his home address as a matter of urgency. This letter did not make any observation concerning either the claimant being dismissed from employment or resigning. The claimant's evidence was that, at this specific time, 9 February, he had no reason to believe that he had been dismissed or that the employment had otherwise come to an end; he had provided to the respondent a medical certificate, certifying his absence from work until 18 March.

5.51 The letter of 9 February was received by the respondent, having been delivered by a work colleague of the claimant. In response, Siobhan Devenney wrote in manuscript on a "with compliments slip" from the respondent company, the following: " Hi Sean, I'm also returning your medical cert. We're sorry you decided to leave but if there's anything you need, please ask. In regard to your request Kate thinks you may have a handbook from a previous employment period you should be able to get all you need in that. Regards Siobhan." Siobhan Devenney posted this with compliments slip to the claimant, together with a P45, completed and dated 15 February 2017, stating that the claimant's date of leaving was "7 February 2017".

5.52 When the claimant received this on 16 February, he wrote a letter again with CAB assistance referring to the receipt that day of the P45 and to the with compliments slip referring to him leaving. He noted that the P45 was dated 7 February 2017 (this is a reference to the stated leaving date). He stated that he had never mentioned he was leaving employment and that he still had every intention of returning to work once he was deemed fit by his GP. In the letter, the claimant made reference to providing, on 7 February, the medical certificate for six weeks until 18 March and he stated that he was told by Siobhan Devenney that the respondent was not able to pay his SSP and pay someone else to cover his shifts. He stated that he was legally entitled to SSP and that when he was off the previous year for a week he was given SSP with no problems. He referred to the letter handed in on Friday 10 February where he had requested terms and conditions of employment only and confirmed that he did not have a copy of this and would like to request a copy. He concluded by requesting that his current position of employment be reinstated and that he would be paid his SSP.

5.53 In response to this letter, the respondent requested the claimant to call for a further meeting and this was arranged for 20 February. The claimant called to the work premises on that date. He met with both Siobhan Devenney and Kathleen McShane. What transpired on that date was not covered in the respective witness statements from Siobhan Devenney and Kathleen McShane. From the claimant's witness statement evidence, he stated to the two that he had not resigned from employment. Siobhan Devenney stated to him that she knew he had not signed on for JSA in the local Social Security office. Kathleen McShane stated that he had walked out of the meeting with Siobhan Devenney on 7 February. He apparently disagreed with this and he stated that he had submitted a medical certificate and had left the work premises with the intention of being back at work when his certified period of absence had concluded. Kathleen McShane stated that it was not his job that was advertised on WhatsAapp, but that it was another employee, Conor, but the claimant refused to believe this as Conor did three 8 hour shifts and yet the advertisement had stated 30 hours, in three shifts, and he was the only one who worked 30 hours per week. The claimant stated that he then asked Kathleen McShane if he had a job, to which she replied "no".

5.54 After this meeting had concluded, the claimant sought legal advice and ultimately the current proceedings were issued on his behalf by the claimant's solicitors. In terms of any arrears of wages due, the respondent arranged to pay arrears of salary and it was confirmed, on behalf of the claimant, that there was no claim in that respect, including any claim for holiday pay.

5.55 The claimant attended the local Jobs and Benefits office and he made a claim for benefits on 20 February, when he was advised to ring the Employment Support Allowance (ESA) helpline; he made an application by telephone but he was eventually notified that he was not entitled to ESA. He applied for JSA on 20 March and approximately one month later he was informed that he was not entitled to JSA on account of inadequate Class 1 National Insurance Contributions. The tribunal had no information that the claimant was in receipt of any social security benefits (save for a credit of Class 1 National Insurance Contributions). Accordingly, as he had not gained any employment in the meantime, he had no income, either from work or from state benefits, from the time of receipt of his final wages from the respondent up to the date of the tribunal hearing.

5.56 As part of the Social Security claim for benefits, the claimant was required to complete the customary records of endeavours made by him to seek employment. The Social Security Agency certified, by notice dated 5 October 2017, that the claimant had made proper endeavours to seek employment throughout the period from 20 March 2017 to 5 October 2017. He had been certified unfit to work, it will be recalled, until 18 March. Shortly before the tribunal hearing the claimant was able to secure employment at remuneration just slightly less than he had earned with the respondent and his claim was adjusted to include a marginal ongoing loss claim.

5.57 The tribunal does not need to determine any further material facts the purposes of this decision in the matter.

THE LAW RELEVANT TO LIABILITY

6. It is provided by Article 127(1)(a) of the Employment Rights (Northern Ireland) Order 1996 (hereafter "ERO") that circumstances in which an employee is dismissed by his employer include if the contract under which he is employed is terminated by the employer (whether with or without notice). It is for any employee to satisfy the tribunal that there was a dismissal.

7. Under Article 126 of ERO an employee has the right not to be unfairly dismissed by his employer. Article 130(1) of ERO provides that in determining (for the purposes of this part) whether the dismissal of an employee is fair or unfair, it is for the employer to show:- (a) the reason (or, if more than one, the principle reason) for the dismissal, and (b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Reasons falling within Paragraph (2) include, at Article 130(b), those relating to the conduct of the employee. Under Article 130(4) where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):- (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

8. The legal considerations in regard to whether there was or was not a dismissal by the employer are currently fairly settled. These considerations direct the focus of the tribunal to the issue of whether an employee was dismissed or resigned, drawing upon any relevant evidence and conclusions of fact. The fundamental question for determination is: who really terminated the contract of employment? Contracts of employment may be brought to an end by fundamental breach by either party. If there is a contention (as there is in this case on the part of the respondent) that the employee terminated the contract both by his words and his actions, the tribunal is required to examine the evidence and to assess whether words spoken and any associated actions were unambiguous or ambiguous. The authorities, generally, state that a different approach is to be taken as between these two possibilities.

9. The tribunal was referred by the parties' respective representatives in submissions, to relevant extracts from Harvey on Industrial Relations and Employment Law, at Division DI . These references were helpful and neither representative took any issue with any of the issues mentioned in the commentary upon the law in Harvey . Where the language used is ambiguous, Harvey (at Division DI. C [Para. 229]) identifies three possible solutions. These are: (1) to concentrate on the intention of the speaker: did he intend to resign when he uttered the relevant words?; (2) to concentrate on the way in which the words were in fact understood by the listener - did he genuinely believe that the speaker was intending to resign? (what might be termed the "subjective approach", focusing on the listener); or (3) to concentrate on how a "reasonable listener" would have understood the words uttered - did the listener not merely genuinely construe the words in that way, but was he acting reasonably in all the circumstances in so construing the words as words of resignation? (what might be termed the "objective approach", focusing on the "reasonable listener").

10. Harvey (at [230]) refers to the Court of Appeal decision of Sothern v Franks Charlesly & Co [1981] IRLR 278 , in which case Fox LJ indicated that, " The non-disclosed intention of a person using language as to his intended meaning is not properly to be taken into account in determining what the true meaning is". Harvey observes that therefore, ".... this narrows it down to (in the jargon) the subjective or objective approaches". The intention of the speaker, at the time the words were spoken, is not the relevant test.

11. Harvey suggests (at [230]) that the genuine understanding of the listener is not the proper test in matters of ambiguous language: " ... for why should his possibly unreasonable construction of the words bind the speaker? In other words, the test is objective rather than subjective and the question of whether or not there has been a .... resignation must be considered in the light of all the surrounding circumstances. Support for this proposition is found in the dictum of Arnold J in Gale v Gilbert quoted above [this is a reference to B G Gale Ltd v Gilbert [1978] IRLR 453, [1978] ICR 1149 (in which the EAT reviewed two earlier EAT decisions, Tanner v D T Kean Ltd [1978] IRLR 110 and Chesham Shipping Ltd v Rowe [1977] IRLR 391 )], and from the two EAT decisions in Martin v Yeomen Aggregates and J & J Stern v Simpson [ this is a reference to Martin v Yeoman Aggregates Ltd [1983] IRLR 49, [1983] ICR 314 and J & J Stern v Simpson [1983] IRLR 52 ]. Indeed, in the last mentioned case the EAT preferred to state the test as being 'to construe the words in all the circumstances of the case in order to decide whether or not there has been a dismissal' rather than as being to apply an objective test to ambiguous words. But with respect, there would appear to be no distinction between these two formulations: by focusing on the surrounding circumstances rather than seeking to discover the actual intention of the speaker or the honest understanding of the listener, an objective test is inevitably involved".

12. If it were to be determined that there was unambiguous language Harvey (at [243]) refers to the case of Barclay v City of Glasgow District Council [1983] IRLR 313 where his observation is that: "... the Scottish EAT sought to obtain the best of both worlds by holding that although in the normal case unequivocal or unambiguous words could be accepted at face value, there were exceptions to this principle. Effectively, the case purports to hold that although the subjective test is normally appropriate, it must in special circumstances give way to an objective test. The facts were that a mentally defective employee employed in the parks department of the respondent Council for ten years used unambiguous words of resignation after an altercation with his superiors. He does not appear to have appreciated the nature of his act and later turned up for work as usual, but the employer refused to accept him back. The tribunal held by a majority that as the employee had used unambiguous words of resignation the employers were entitled to treat them at face value. But the EAT upheld the employee's appeal. They expressed the law on this subject to be as follows:

''It is true that if unequivocal words of resignation are used by an employee in the normal case the employer is entitled immediately to accept the resignation and act accordingly. This has been authoritatively decided by the Court of Appeal in Sothern v Franks Charlesly & Co [1981] IRLR 278 to which we were referred. It is clear however from observations made in that case that there may be exceptions. These include cases of an immature employee, or of a decision taken in the heat of the moment, or of an employee being jostled into a decision by employers (Fox LJ at paragraph 21); they also apply to cases where idle words are used under emotional stress which employers know or ought to have known were not meant to be taken seriously (Dame Elizabeth Lane, paragraph 25). There is therefore a duty on employers, in our view, in an appropriate case to take into account the special circumstances of an employee'.'"

13. Harvey's overall conclusion (at [248]) is as follows: " To sum up, the preponderance of authority in relation to ambiguous statements is in favour of the objective view, ie that the issue is how a reasonable listener would have construed the words used in all the circumstances of the case. In relation, however, to unambiguous statements, we seem to have a combined test-”one starts from the subjective position that the speaker has to take the consequences of clear words being taken at face value, even if a reasonable listener might not have done so, but this is subject to an exception (or 'cautious reminder') if there are 'special circumstances' in which the words were uttered, in which case a more objective approach may be taken to see what was reasonably meant. One obvious problem is that the width of this potentially vital exception (vital particularly for the party now wanting to avoid the consequences of what they seem clearly to have done) is a matter of uncertainty and some of the case law may appear to be contradictory on it. Arguably it is not particularly logical (one argument being that the only logical solution would be to have a test which is either subjective or objective, not both) but this may be one of those areas of employment law where the life of the law is not always logic, and that good employment practice may be just as important, as recognised by the EAT in the early case of Martin v Yeoman Aggregates [1983] IRLR 49".

14. The authorities provide that it is possible to have "second thoughts". In Martin -v- Yeoman Aggregates Ltd [1983] ICR 314 a director of the employer had an argument with the employee which resulted in the director telling the employee that he was dismissed. Within five minutes, the director had cooled down and retracted the dismissal. The employee insisted that he was dismissed. He sought to pursue his statutory remedies for unfair dismissal. However, in that case it was held that it was possible to have second thoughts; words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. This would also apply as far as the employee is concerned, if words of resignation spoken in the heat of the moment were almost immediately retracted, but such cases would inevitably be fact-specific.

15. In Willoughby v CF Capital Ltd [2011] IRLR 985 , CA , the Court of Appeal in England (per Rimer LJ) commented upon the rule that a notice of resignation or dismissal (whether oral or in writing) has effect according to the ordinary interpretation of its terms. On c e such a notice is given, it cannot be withdrawn except by consent (of the other party). However, there should be a "cautionary reminder" to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. In that case, reference was made to the case of Kwik-Fit (G.B) Ltd - v- Lineham [1992] ICR 183 where Wood J stated: "If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant....These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to elapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objectively. '

SUBMISSIONS AND APPLYING THE LAW TO FACTS RELEVANT TO LIABILITY

16. The tribunal was in receipt of helpful written representations from the respective representatives of the parties, including references to Harvey and to pertinent authorities. The tribunal is most grateful for these and has fully taken any such into account in reaching its determination.

17. Noting the evidence and facts to be drawn from this and noting the submissions, the tribunal's conclusion is that the claimant had resigned from employment on two previous occasions prior to the events of early 2017. The tribunal, as mentioned above, makes no finding whatsoever that there were other occasions when the claimant might have acted in a way tantamount to resignation, but subsequently apologised and was then effectively reinstated. The tribunal is therefore dealing with two occasions only. Two occasions, first in 2008 and then occurring again in 2014, might not be a large number; these occasions might indeed have extended over a considerable period of time. Nonetheless, this does afford to the respondent a legitimate and potentially reasonably-held perspective that the claimant had previously resigned in circumstances where he did not concur with the employer's approach to management. If there had been any grounds for taking action against the respondent, perhaps by taking a claim for constructive dismissal, nothing was pursued by the claimant. On balance, the tribunal therefore concludes that, when the events which immediately concern this tribunal occurred in February 2017, they have to be seen in the light of the respondent's knowledge of these previous occasions.

18. The tribunal has also determined that there was a social media message posted by Ryan McShane which preceded, by a number of hours, a meeting occurring on the late afternoon of 6 February, during the course of which meeting the topic of arranging cover for a possible longer-term sickness absence of the claimant than had been originally anticipated, was discussed. The posting of the social media message and the conversation in the workplace which occurred a number of hours after this, concerning the claimant's illness and arranging cover, are not directly connected. The tribunal's finding is that there was no instruction or direction given by management to Ryan McShane causing him to advertise within a closed social media group concerning the claimant's job. Much has been made in argument in the case concerning the hours mentioned in the media posting and that these correspond with the claimant's hours of work. It has been submitted that the respondent has intentionally kept back information and documentation regarding other night shift workers and how the claimant was replaced. It is noted that the respondent's representative did endeavour to introduce (albeit at a very late stage, at the outset of the hearing) additional evidence but that, in the face of objections, did not proceed with that endeavour. It is impermissible for the tribunal to speculate what might, or might not, have been contained in such evidence. Given all of the evidence which was received by the tribunal bearing upon the issue, the tribunal is unable to conclude that Ryan McShane intended to describe the claimant's post in his social media message, whether at the direction of management or otherwise.

19. The claimant then, on 7 February, was by some means (not fully explained) transmitted a copy of Ryan McShane's message. He received this probably around 11.00am, or shortly thereafter, on that day. He appears to have immediately concluded that this was "his" job that was being advertised. He was due to attend a meeting at the workplace later that day and when he attended he met with Siobhan Devenney. Kathleen McShane was to attend the meeting as soon as she was able to do so. As there were only two persons present at the meeting and as there exists a significant conflict between the two as to what occurred, the tribunal was faced with reaching a determination as to which evidence was the more cogent and credible. The tribunal has noted the equivocation of the claimant concerning how either of the two previous periods of employment came to an end. This equivocation stands clearly against the claimant's own evidence contained in his witness statement and the position expressly stated by his solicitors in correspondence issued on behalf of the claimant. Not only did the claimant deny being angry at the meeting, although he admitted to being "irked" or "hurt", he also denied stating the words which are attributed to him by Siobhan Devenney (to which the tribunal shall return) and denied leaving the meeting and "stomping" down the stairs. The evidence of Siobhan Devenney was that he did toss papers which he was holding across the table to her, these including a medical certificate. Siobhan Devenney indicated that she was shocked by the claimant's demeanour and that she saw a "nasty" demeanour which she had not previously witnessed. Siobhan Devenney stated that the claimant did stand up and leave the room and "stomp" down the stairs. Kathleen McShane, who was in an adjacent room, heard raised voices and the sound of someone "stomping" down the (carpeted) stairs. The claimant's evidence, in contrast, was that he left the room and "walked normally". Whilst, Siobhan Devenney stated that she followed him and said words along the lines of "don't be like that", the claimant denied that any of this had occurred. Assessing the weight of the evidence, on balance, as regards the claimant's demeanour and the way in which he left the meeting room, the tribunal prefers the evidence of Siobhan Devenney, when taken together with the corroborative evidence of Kathleen McShane. The tribunal regarded Kathleen McShane as being, in general terms, a forthright and a credible witness.

20. In respect of whether Siobhan Devenney stated to the claimant that the respondent could not afford to pay him SSP and engage another employee to cover for him, in the face of Siobhan Devenney's strenuous denial that this had occurred and with the claimant insisting that it had, the tribunal was unable to make any definitive determination save to note that the claimant attended the CAB a very short time afterwards. If the claimant's version of events is correct there would have been two issues of concern. Firstly, his job being advertised, as he saw it, and secondly Siobhan Devenney suggesting that the respondent could not pay him SSP. It is perhaps for that latter reason, if not for both reasons, that the claimant via CAB made a request for a statement of terms and conditions of employment, obviously wishing to take further advice on his position under contract.

21. Dealing then with the strongly-contested issue of the words which were spoken by the claimant, Siobhan Devenney's evidence is noted. The tribunal assesses that there was a, perhaps understandable, reticence about setting out the words in full in Siobhan Devenney's witness statement, initially on account of a "four letter "word that was allegedly used. However, in her oral evidence Siobhan Devenney confirmed that the claimant had stated, "F... this, I've had enough!" Notwithstanding the claimant endeavouring to play down the suggestion that he was in an angry mood, the tribunal's assessment of the claimant's demeanour and mood at this specific time is that he was beyond being "irked" or "hurt" and that he was angry, which was interpreted by Siobhan Devenney as being "nasty", as she put it. The tribunal therefore concludes, on balance and notwithstanding the claimant's denial, that the claimant did speak these words, as attributed to him, in a raised voice (this being overheard by Kathleen McShane in an adjacent office, notwithstanding two doors being closed). Siobhan Devenney stated that the claimant "tossed" papers which he was holding under his arm onto or across the table. The tribunal concludes that this very possibly took place, as described. The claimant stood up and far from walking out of the room "normally", as he would have wished the tribunal to believe, the claimant left in a somewhat angry or emotional state and he "stomped" down the stairs in a manner which was heard by Kathleen McShane, who provided corroborative evidence in that respect. The tribunal also accepts that Siobhan Devenney followed the claimant out of the room and endeavoured to have him return. Whilst denying that this occurred, the claimant must have overheard Siobhan Devenney's request, but he determined to ignore that.

22. In the light of the foregoing findings of fact, the tribunal must apply the applicable principles to the utterance of these words by the claimant. Dealing first of all with the words determined to have been spoken by the claimant, taking account of each word individually and also collectively, these words (as has been pointed out in submissions made on behalf of the claimant) do not state expressly, "I am resigning" or "I am leaving". The words spoken break down essentially into two parts, or connected phrases, the first part being "F... this". This is clearly an expression of frustration or anger at the perceived situation in which the claimant believes he has been placed. Those words, in isolation, may be properly construed as nothing other than an expression of frustration or anger. The second part of the words spoken are, "I've had enough". Looking at these words objectively and disregarding for the moment any specific context, the speaker might have intended to state that he had "had enough" (i.e. of the meeting) and that he wanted to leave the meeting, or he might have been stating that he had "had enough" (i.e. of the job) thereby evincing an intention to leave the job, to resign. The very fact that these two possibilities are indeed open to interpretation must, it follows, properly entitle the tribunal to conclude that the words spoken were objectively ambiguous, notwithstanding that they might have been subjectively interpreted, as contended on behalf of the respondent, by the respondent's management as being an unambiguous statement by the claimant, at that time, to the effect that the claimant was resigning from his employment.

23. If one therefore assesses these words as being objectively ambiguous, the tribunal also makes the assessment that the words were spoken by the claimant (notwithstanding his denial) in what could be fairly described as being a somewhat emotional or angry mood. This is borne out by Siobhan Devenney's evidence that the claimant's demeanour was "nasty", as she described it and that he aggressively "stomped" down the stairs and that he did not leave the room (which the claimant had endeavoured to persuade the tribunal he did) by walking out as "normal". Accordingly, the words were ambiguous and were uttered in what could be reasonably described as, "in the heat of the moment".

24. As the tribunal's finding is that these were ambiguous words, the applicable legal principles mentioned above suggest that the preponderance of authority in relation to ambiguous statements is in favour of the objective view. This is how a reasonable listener would have construed the words used by the claimant, in all the circumstances of the case. Such a reasonable listener, taking an objective view, would also have to be properly informed of any relevant facts and proper context. Accordingly, what the claimant might have intended by speaking the words is not relevant. By focusing on the surrounding circumstances, rather than by seeking to discover the actual intention of the speaker or the honest understanding of the listener, an objective test is accordingly applied. This is not a case of otherwise unambiguous words (such as described in Barclay -v- City of Glasgow District Council or in Kwik-Fit (GB) Ltd -v- Lineham) being used and the tribunal's assessment is that ambiguous words were used by the claimant and therefore the matter must be looked at objectively in the light of all of the circumstances of the case. The claimant's position has been at all times to deny that such words were spoken. He did does not accept that the words attributed to him (and found to have been uttered by him by the tribunal) were spoken at all. Accordingly, there would have been no immediate or timely retraction of words never admitted as spoken.

25. Considering all the material circumstances of the case, the tribunal's assessment of how a hypothetical, reasonable and properly informed, listener would have construed the words used by the claimant, in all the circumstances of the case is that, upon hearing these words spoken, upon witnessing the claimant's immediate demeanour and his reaction by leaving the room and "stomping" down the stairs, such a reasonable listener would not have been entitled to form a reasonably-held conclusion that the claimant had resigned from employment, without affording an opportunity for clarification to the claimant to explain his view and what he meant. Thus the tribunal concludes that, objectively assessed the claimant did not without doubt intend to "walk out", to quit, the employment. Further clarification was clearly required, upon an objective assessment.

26. The aftermath of these events is slightly unusual in that, if the claimant had not been otherwise certified sick, he might have attended the workplace on the following day to discuss matters further. In view of his certified sickness, matters, as it were, "went a little quiet" for a few days. When the respondent next heard from the claimant, the written communication consisted of a neutrally-expressed request for a statement of terms and conditions of employment. The respondent states that it construed this request as being evidence that the claimant had resigned, but the tribunal cannot see how that would have been an obvious construction of the request. In any event, on 15 February, the P45 was processed indicating to the claimant, upon receipt, that the respondent had recorded his date of leaving as 7 February and this constituted a form of acceptance by the respondent of the repudiation of contract by the claimant. It has been argued, for the claimant, which argument is accepted by the tribunal, that the position was compounded by the respondent's management's failure, in the immediate aftermath, either to seek clarification from the claimant, if they were in any doubt, or by the respondent forthwith communicating with the claimant their perception that this was indeed a resignation and that the respondent had accepted such resignation. It is noted that the respondent's position is that they were in no doubt whatsoever that the claimant had resigned, but this is not the perception of a reasonable employer. In any event, the respondent communicated with the claimant by sending the P45 and then making their position fully clear at a subsequent meeting on 20 February. The respondent had subjectively concluded that there had been a resignation by the claimant, by his words and actions, on 7 February which had, in effect, brought the employment contract to an end. Siobhan Devenney's posting of the P45 confirmed the employer's acceptance of the repudiation of the contact of employment by the claimant. In the light of the foregoing, subjective, conclusion on the respondent's part that the claimant had resigned but in the light of the finding that this is not objectively sustainable (applying the test of the reasonable listener), the contract of employment was brought to an end, under these circumstances, by the respondent on 15 February 2017 and not by the claimant. There was thus a dismissal of the claimant by the respondent. In all of the circumstances, the tribunal determines that this was an unfair dismissal by the respondent.

THE LAW RELATING TO REMEDY

27. Where a tribunal finds a complaint of unfair dismissal to be well-founded, orders the tribunal may make are set out at Article 146 of ERO. These include reinstatement, re-engagement and compensation. The calculation of compensation is provided for in Articles 152 to 161 of ERO.

28. The starting point for the calculation of the compensatory award in Article 157 (1) of ERO provides:

'(1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.'

29. The claimant is under a duty to mitigate his loss. The onus rests with the respondent to show that the claimant behaved unreasonably in any steps taken to mitigate loss, or otherwise. The compensatory and basic awards may be reduced where the claimant is guilty of blameworthy conduct or is unreasonable in the circumstances, contributing to the employer's decision to dismiss. If the tribunal considers it just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault, it may do so.

30. The statutory disciplinary and dismissal procedures (SDP) must also be followed in relation to any dismissal. Where the non-completion of the minimum procedure was wholly or mainly attributable to the failure by the employer or employee, under Article 17 of the Employment (Northern Ireland) Order 2003 an award of compensation shall be increased or reduced by between 10 and 50 % by the tribunal, save in exceptional circumstances which would make it unjust or inequitable, in which case the tribunal may either make no adjustment or may make such lesser percentage adjustment as it considers just and equitable in all the circumstances.

FINDINGS RELEVANT TO REMEDY

31. The respondent treated the employment as ending on 7 February 2017. However, in view of the finding that the claimant did not resign on that date, the material date upon which the employment was ended by the respondent was the date of dispatch of the P45, that being 15 February 2017. This is the effective date of termination (EDT) for the purposes of computation. The claimant's date of birth was 20 October 1975. He had completed one full year's service with the respondent at the material time. His gross weekly wage was £240.00 and the net wage was £220.00. The claimant was certified medically unfit for work until 18 March 2017. He would have been entitled to SSP for qualifying days. It was confirmed that all pay, including any arrears of holiday pay, had been received by the claimant up to the date of EDT (it is noted that there appears to be a conflict in the claimant's revised schedule of loss between the claimant's proposition, otherwise, that the EDT was 15 February and what is therein stated as being the EDT, 7 February). Contributory fault was not raised by the respondent in submissions.

32. The c laimant sought compensation only. He attended his local Jobs and Benefits office and he made a claim for state benefits on 20 February and he was advised to ring the Employment Support Allowance (ESA) helpline. He then made an application by telephone, but he was eventually notified that he was not entitled to ESA. He applied for JSA on 20 March. Approximately one month later he was informed that he was not entitled to JSA on account of inadequate Class 1 National Insurance Contributions. The tribunal, as mentioned, had no information that the claimant was in receipt of any social security benefits (save for a credit of Class 1 National Insurance Contributions). Accordingly, as he had not gained any employment in the meantime up until close to the time of the tribunal hearing, at which time he was fortunate enough to have secured employment, he had no income, either from work or from state benefits, for this time.

33. As part of the Social Security claim for benefits, the claimant was required to complete the customary records of endeavours made by him to seek employment. The Social Security Agency certified, by notice dated 5 October 2017, that the claimant had made proper endeavours to seek employment throughout the period from 20 March 2017 to 5 October 2017 (he had been certified unfit to work until 18 March). Shortly before the tribunal hearing the claimant was able to secure employment at remuneration just slightly less than he had earned with the respondent and his claim was adjusted to include a marginal ongoing loss claim. Whilst the respondent's representative endeavoured to assert that the claimant had not made reasonable and proper endeavours to secure alternative employment, this submission is not accepted by the tribunal. No failure to mitigate therefore arises in the case.

34. The claimant in the revised schedule of loss submitted, sought a basic award of £360.00 (later amended), a compensatory award made up of immediate loss from 7 February to 22 October 2017 of £8,077.14 and a future loss over 52 weeks of £190.84 from the date of commencement of the new employment, together with £500.00 for loss of statutory rights. The claimant also claimed a statutory uplift of 50% for failure to follow the applicable statutory procedure. The total sum claimed in the revised schedule of loss was £15,131.97.

35. No exceptional circumstances were raised as to why an award should not be increased for failure to follow statutory procedures under Article 17 of the 2003 Order.

36. Taking into account the above, the award is as follows:

(1) Basic Award - Article 153 (2)(a) of ERO :-

£240.00 x 1 = £240.00

(2) Compensatory award - under Article 157 of ERO (loss sustained by the claimant in consequence of the dismissal insofar as attributable to action taken by the respondent, assessed on a just and equitable basis in all the circumstances):-

(i) Immediate loss of earnings to date of hearing:

SSP from EDT (as confirmed by the claimant) being 15 February 2017 to 18 March 2017, 31 days (@ £ 88.45 per week) = £ 391.71

30.5 weeks @ £220.00 = £6,710.00

(ii) Future loss:

(representing pay differential per week between claimant's employment with the respondent and with the new employer = per week £3.67)

Say 26 weeks @ £3.67 £ 95.42

(iii) Loss of statutory rights say £ 350.00

(iv) Failure to Take Reasonable Steps in Mitigation

The respondent has not shown that the claimant has unreasonably failed in his duty to mitigate his loss to date of hearing.

Total compensatory award before adjustment: £7,787.13

(v) Failure to follow statutory procedure.

In the absence of exceptional circumstances which would make an award unjust or inequitable, the tribunal increases the award by £1,557.43, the amount of 20 % under Article 17 of the Employment (Northern Ireland) Order 2003.

(vi) Failure to Provide a Written Statement of Particulars of Employment (Articles 33(1) and 36(1) of ERO)

The tribunal determines that it is just and equitable, under the specific circumstances of this case, to award four weeks' pay: £960.00

TOTAL AWARD £10,304.56

RECOUPMENT

37. The particulars otherwise to be provided pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 and t he Social Security (Miscellaneous Amendments No.6) Regulations (Northern Ireland) 2010 are not applicable in the matter.

38. The claimant has been unfairly dismissed by the respondent contrary to Article 130 ERO and respondent shall pay the claimant compensation of £10,304.56.

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

Employment Judge:

Date and place of hearing: 16 October and 17 October 2017, Belfast.

Date decision recorded in register and issued to parties:

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Barr v Glenfresh Foods Limited [2017] NIIT 01810_17IT (07 December 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/01810_17IT.html Cite as: [2017] NIIT 1810_17IT, [2017] NIIT 01810_17IT

Industrial Tribunals Northern Ireland Decisions