Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 4379/17

 

 

 

CLAIMANT: John Arends

 

 

RESPONDENT: The Mount Charles Group Limited

 

 

 

 

DECISION

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

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Browne

 

Members: Mr D Walls

Mr I O'Hea

 

 

Appearances:

 

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by
Millar McCall Wylie LLP Solicitors.

 

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Carson McDowell LLP Solicitors.

 

 

EVIDENCE AND FACTS FOUND

 

1. The claimant worked for the respondent as a chef manager from April 2015 until
19 May 2017, during which time he was transferred under TUPE in September 2015. During his employment, he always worked at Kilroot Power Station near Carrickfergus. The respondent supplies catering services throughout Northern Ireland.

 

2.          The claimant during his time working for the respondent felt that he and his only colleague working full time were expected by the respondent to carry out too many tasks, in that they had to prepare and serve up to three hundred meals per week, plus all the cleaning and maintenance of the kitchen area. In July 2016, the claimant formally requested additional help, in response to which the respondent appointed a casual Food Service Assistant, who worked on average 13.5 hours per week.

 

3.          In November 2016, the claimant was off on certified sick leave due to depression for seven weeks, returning on 12 January 2017, stating at his return to work interview that he was happy to return.

 

4.          The claimant was then absent from work for six weeks from 24 February 2017 until late March, citing stress as the reason when his sick lines were received on
21 March 2017.

 

5.      The claimant had emailed the respondent's managing director on 21 February with a list of complaints, namely "breach of contract, breach of company compliances, discrimination, unequality on the work floor and personal prosecution from HR towards me".

 

6.          The claimant was invited to meet Julie Brown, the respondent's HR Manager on a number of occasions during March 2017 to discuss his complaints, which he was unable to attend.

 

7.          He attended a meeting on 6 April 2017, and, in addition to his earlier complaints, raised further issues relating to a bonus payment, expenses entitlement, and disparity in staffing levels as between the Kilroot site and those at Ballylumford Power Station, for which site the respondent also provided catering services.

 

8.          During the meeting, the respondent told the tribunal that the claimant became aggressive, shouting over Mrs Brown. In a telephone call from the claimant to
Mrs Brown the next day, in which he demanded answers from her as to their meeting the previous day, it was alleged by her that he again became aggressive, and threatened to create problems for her, for the respondent, and for Kilroot Power Station.

 

9.          On 10 April 2017, Mrs Brown sent two letters to the claimant, in one of which she told him that his conduct during their meeting of 6 April was not acceptable.

 

10.       On 13 April 2017, Mr Larry McGrath, one of the respondent's managers, and another member of staff, spoke to the claimant at Kilroot about his health following his return to work. Again, they reported that his manner and language were unprofessional. The claimant, for his part, again emailed the managing director, complaining that in fact he had been bullied and intimidated by Mrs Brown and Mr McGrath, and that he wanted to raise a grievance.

 

11.       The grievance hearing on 9 May 2017 concluded that it should not be upheld. The claimant appealed, but claimed at the hearing that its chairman was bullying and harassing him, and he walked out of it, and later refused to arrange another date.

 

12.       On 18 May 2017, the claimant contacted the respondent, seeking more staff for his section, including a telephone call to Nikki Looby, the respondent's operations manager, but she was unavailable. She rang him back early on the morning of
19 May 2017 as she drove to work. Ms Looby recorded the conversation, because of the claimant's history of making complaints against the respondent's management staff.

 

13.       The tribunal listened to the recording. At the start, the claimant spoke articulately, and clearly argued his point. Ms Looby challenged his assertions about the casual worker not being enough to cover all the work, which led to the claimant becoming animated in his tone, although still well within an acceptable if robust conversation.

 

14.       The claimant however very quickly became aggressive, talking over Ms Looby. The line went dead, which Ms Looby on the recording put down to the claimant having abruptly terminated the call; the claimant stated that he believed that it was Ms Looby who had ended it. The tribunal considered that the call might also have been terminated due to a signal failure as Ms Looby drove through the countryside. In any event, the claimant rang back a short time later, but Ms Looby did not answer, as, on her evidence, she was on another call. The claimant interpreted this as being
Ms Looby refusing to take his call.

 

15.       The claimant left a voicemail for her, which the tribunal also heard, stating: "Hello there NIkki, you know what I cannot work today I discussed this with you I will be handing in my resignation and we are going to see each other. I can't do any day anymore, I had enough, so I will try to arrange with the agencies to come in today, that's me finished. Thank you."

 

16.       The claimant then went to his work section, and was recalled by his colleague Mr Lilly as being visibly upset, that he threw down his towel and left the premises and did not return. By doing so, he caused significant problems for the respondent to provide catering that day.

 

17.       The respondent's case is that it, from that date, regarded the claimant as having resigned, based upon its assessment of the combination of his words to Ms Looby and by immediately following them up by summarily leaving his place of work and not returning.

 

18.       That view was expressed internally among the respondent's management from the outset, and was followed up by a letter to the claimant on 23 May 2017, sent at
Ms Looby's direction, accepting his resignation.

 

19.       There was evidence that the claimant telephoned to the respondent twice on 19 May. On his version of events, he wanted to discuss what he claimed was his expression to Ms Looby during the voicemail message of what he later described as only an intention to resign.

 

20.       There was however no internal record of the calls, and the claimant was unable to provide details of anyone he spoke to. It should be borne in mind that the claimant still had the option of contacting Ms Looby again on her mobile phone, or contacting her or others by email. It also is of note that, despite previously not hesitating to contact the respondent's managing director directly via email, he did not do so on this most important issue.

 

21.       In any event, the claimant did not seek at any time after 19 May 2017 to contact the respondent until receipt of the letter of 23 May 2017, in which the respondent purported to accept his resignation.

 

22.       The claimant at the tribunal hearing sought to argue that he on 19 May 2017 had gone straight from work to his doctor's surgery, but was unable to see him without an appointment, to obtain a sick line due to work-related stress. The evidence of telephone records however revealed that the only call from the claimant to his doctor's surgery was on 22 May 2017. It also was noted by the tribunal that the medical certificate the claimant eventually produced records that the doctor did not in fact assess the claimant until 25 May 2017. The tribunal therefore concludes that the more likely sequence of events was that the claimant did not contact the surgery until
22 May, and secured an appointment for 25 May 2017.

 

23.       Those findings are significant in the tribunal's assessment of the claimant's veracity in later explaining his actions. The more likely scenario is that, rather than leaving his workplace due to illness caused by stress, the claimant walked out in furtherance of his earlier voicemail to Ms Looby.

 

LAW AND CONCLUSIONS

 

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

 

25.       In the current case, the claimant asserts that the respondent did, by virtue of relying upon his ambiguous words, without making any enquiry from him as to what the true position was.

 

26.       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.

 

27.       The facts in the current case are viewed by the tribunal as eroding the claimant's suggestion that there was sufficient ambiguity in his words and associated actions to raise a duty upon the respondent to conduct an enquiry.

 

28.       The import of the wording of his voicemail was in the view of the tribunal quite clear. Even on the claimant's own case, it was left after he had gone home and "reflected" upon the earlier telephone conversation with Ms Looby. Regardless of why the call had been terminated, it must have been quite clear to the claimant that Ms Looby disagreed with his demand for more staff. As a result, he was not going to get what he wanted, then, or in the future.

 

29.       It was clear to the tribunal, upon listening to the recording, that, regardless of who was right, the claimant, when the conversation was not going his way, was quite prepared to turn up the heat as well as the volume. Such an approach might readily be viewed as tactical, rather than someone who genuinely becomes distressed and says something in the course of a mutually heated discussion which ought to have alerted the respondent that further enquiry would be warranted.

 

30.       The conversation between the claimant and Ms Looby was heated on only one side, namely, the claimant's. The second call from the claimant which resulted in the voicemail was one-sided, because Ms Looby was on another call. The claimant was therefore on notice that he was talking to a machine, leaving a message, rather than having a volatile interaction with his employer.

 

31.       Rather than hanging up and calling back later, or leaving a message for Ms Looby requesting that she return his call, the claimant opted to leave a message for her which, even on casual inspection, gives rise to a reasonable interpretation of resignation.

 

32.       This, when viewed with the claimant's actions in summarily leaving his workplace, leaving the respondent with only Mr Lilly to provide the catering, lends significant strength to the respondent's case that the interpretation of resignation was correct.

 

33.       The claimant sought to rely upon his use of the words "I will be handing in my resignation" as indicative of an intention, but not a resignation with immediate effect. He coupled this with the wording of his contract of employment, which states that resignation "should" be in writing.

 

34.       The respondent's case on these points was that staff in the catering industry habitually resign without prior notice, or even by text. Whilst ideally, within the terms of the written contract, the use of the word "should' would be followed, it is not mandatory.

 

35.       The tribunal also noted that the claimant's reliance upon the terms of the contract on this aspect sat uneasily with his own disregard for it by simply walking out of his shift and not returning.

 

36.       The tribunal considered that the claimant's account of trying to see his doctor that day was probably untrue. The independent evidence of the telephone call records, and the date of 25 May 2017 specified by his doctor on the sick line, appeared to the tribunal to raise a compelling inference that the claimant only acted to obtain medical certification on 22 May 2017, and that his version to the tribunal was therefore unlikely to be true.

 

37.       The tribunal concluded that the most likely explanation for his account was that he by that time had heard nothing from the respondent, and realised that he had to explain his disappearance on 19 May 2017. That lends weight to the respondent's version of events that his words and deeds of 19 May 2017 were intended to convey that he had resigned, whether or not he actually intended to resign. The issue at stake is whether or not the respondent genuinely believed that he had resigned, and whether it reasonably had come to that conclusion and accepted it.

 

38.       It is possible that the claimant did in fact intend to resign. It might also have been the case that he calculated that the respondent would be so shocked and disadvantaged by his absence that it would be more likely to concede to his demand for more staff. If the latter, he could only have been disappointed by the total silence, followed by the realisation that his bluff had, in effect, been called.

 

39.       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, his language and actions were sufficiently unambiguous to justify the interpretation and consequent action of the respondent.

 

40.       The tribunal formed the view that few tears are likely to have been shed by the respondent at the departure of the claimant, on account of his frequently challenging behaviour.

 

41.       There was however insufficient evidence to demonstrate that there had been an inappropriate manipulation of an opportunity handed to the respondent by the claimant to offset what was, on a plain interpretation of the ample evidence, a genuine and reasonable entitlement to rely upon what he had said and done on 19 May 2017.

 

42.       The tribunal concluded that there had been no deliberate "cooling-off" period by the respondent. Firstly, 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 19 May 2017.

 

43.       Had there been a 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 cooling-off period; it was simply that the respondent did not take any action to finalise the view it had formed on 19 May 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.

 

44.       That period of time also gave the claimant ample chance to fill the vacuum by making a meaningful effort to re-establish contact with the respondent. He did not take it, which reinforces the view that, either he did not want to, or that he was waiting for the respondent to make the first move.

 

45.       There was no satisfactory, or any, indication from the claimant as to what he from his behaviour realistically expected the respondent to think.

 

46.       The tribunal is therefore unanimously of the view that the respondent on 19 May 2017 genuinely and reasonably interpreted the claimant's words and conduct as amounting to his resignation, effective from that date. The tribunal is also of the view that, whatever his ultimate goal was, he used language and conduct calculated to induce the respondent to forming that view. He therefore was not dismissed.

 

47.       The claimant has therefore failed to satisfy the tribunal that he was unfairly dismissed, and his claim is dismissed in its entirety.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 27 - 28 February and 1 March 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: