Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/898_08IT.html
Cite as: [2009] NIIT 898_08IT, [2009] NIIT 898_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 898/08; 1354/08

CLAIMANT: Thomas Michael Corran

RESPONDENTS: (1) Ian Healy T/A Kaya Restaurant /Castle Arms

(2) Gillian Campbell

DECISION

The unanimous decision of the tribunal is that the claimant was not dismissed from his employment by the respondents. His above numbered claims are dismissed.

Constitution of Tribunal:

Chairman: Mrs Watson

Members: Mr McKenna

Mr Kinnear

Appearances:

The claimant was represented by Mr S. Mearns, of John Ross & Sons, Solicitors.

The respondent was represented by Mr C. Hamill B.L. instructed by Worthington, Solicitors.

Issue for determination

1. Was the claimant unfairly dismissed from his employment or did he resign.

Sources of evidence

2. The claimant gave oral evidence and called his sister, Christine Corran, Mrs Victoria Woods and Mr Des Cunningham to give evidence on his behalf.

The second respondent, Mrs Gillian Campbell gave oral evidence.

The tribunal was also provided with a bundle of relevant documentation. This included two statements from former colleagues of the claimant. Mr Hamill did not object to the tribunal being referred to these documents but the tribunal did not place any weight on the content of the statements as the witnesses did not appear.

Findings of Fact

3. The first respondent, Mr Healy, bought the business in Bangor known as the Kaya Restaurant /Castle Arms from the claimant’s father in or about April 2007. The claimant had been employed there by his father since March 1998 and was responsible for ordering the stock for the restaurant, bar and off licence which comprised the business. He also looked after the storeroom and carried out other minor maintenance tasks.

4. The claimant’s sister, Christine Corran, was also an employee at the time of the purchase. She had been there for several years too and had worked her way up to be manager of the restaurant. Because he did not work in the restaurant, Christine Corran had never had any line management duties in respect of the claimant. In fact, they would have had little contact in the workplace.

5. The second respondent, Gillian Campbell, had worked as an Estate Agent, also in Bangor, for some 25 years. She had been a regular customer of the restaurant for many years and had often entertained business clients and held staff functions there. Christine Corran stated in evidence that she and Mrs Campbell had an extremely good relationship when Mrs Campbell began work in March 2008 as General Manager of the business.

6. Following his purchase of the business, Mr Healy had been unable to spend as much time there as manager as perhaps was necessary because of his responsibilities to his sister who was terminally ill. The business largely carried on as it had done under the previous owner.

7. A large supermarket had opened near to the business premises and was selling alcohol at a much lower price than the off licence could afford to. Around Christmas 2007, Mr Healy spoke to Mrs Woods, the book keeper, about closing the off licence. Mrs Woods had also been asked by Mr Healy what the claimant’s job entailed. She had replied that she knew the claimant ordered stock for the business and helped with displays and stacking the shelves in the off licence but she did not really know what he did as he was not there very often and she had little contact with him. The claimant was paid £108 per week. For at least two years prior to the termination of this employment, the claimant had also been self employed as a landscape gardener. His duties at Kaya were ‘fitted in’ round his gardening business so that he did not have fixed hours of work and indeed would have done some if not most of the ordering from home by telephone.

8. At the beginning of 2008, Mr Healy asked Mrs Campbell to act as a ‘secret shopper’ and advise him of what she considered needed to be done to improve business performance. She inspected the premises and consulted some of her business clients who were in the licensed trade and made suggestions to Mr Healy. The Estate Agency had been running down for some time and was closed in early 2008. Mrs Campbell was appointed General Manager with effect from 17 March 2008.

9. When she started working at Kaya, Mrs Campbell believed, and informed some staff, that she was to be a partner in the business. This did not in fact happen but she was responsible for all the day to day management of the business in consultation with Mr Healy. At the outset, Mrs Campbell was very concerned with aspects of the work of the kitchen staff particularly with regard to standards of hygiene. Two senior members of the kitchen staff resigned at about the time she started work while Mrs Woods was made redundant. It was clear to the tribunal that some of the staff viewed Mrs Campbell’s appointment with apprehension in relation to their posts. Understandably, as the daughter of the former owner, Christine Corran would have been seen as a senior member of staff prior to the arrival of Mrs Campbell, especially since Mr Healy was not present very often.

10. The tribunal was satisfied that the second respondent had wide business and management skills from her many years experience running her own estate agency and assisting clients with their business interests but she had little knowledge of the licensed trade and had to find out about the daily needs of this type of enterprise. Notes made by her at that time indicated that she recognised the need to have job descriptions and contracts of employment for each member of staff. This would also have required her to find out what each employee did. She shared Mr Healy’s concerns relating to the drop in off sales and was investigating alternative uses for that part of the premises. Mrs Campbell noted that in the office, there did not appear to be any stock records and that invoices were not up to date.

11. While the claimant did not agree, the tribunal found that the second respondent had reason to be concerned with the practices and procedures operated by the claimant in the performance of his duties. It was clear to the tribunal that, despite his claim to the contrary, the claimant did not operate a satisfactory record of orders placed with suppliers, prices agreed with suppliers, check of stock delivery against orders, movement of stock to bar, restaurant and off sales or stock rotation that would have been expected. The claimant’s evidence was that he wrote the orders in a small duplicate book. One copy went to the office and the other to off sales staff who threw out the slip after the delivery. This was the way he had been doing the job for many years with no problems and he did not see any reason to change.

12. On Thursday 27 March 2008 about 4 p.m., Mrs Campbell met Christine Corran who had just finished her lunchtime shift and was leaving the premises. The tribunal was satisfied that there was a conversation between them and that Thomas, the claimant, featured in their talk. According to Miss Corran, Mrs Campbell said that Thomas’s services were no longer required and Miss Corran undertook to tell this to her brother rather than have Mrs Campbell do so. Mrs Campbell denied saying this or anything to that effect. Miss Corran said she telephoned her brother a short time later and told him that Gillian had said his services were no longer required. She could not remember if she had made the call from home or work. The claimant and his sister, Christine Corran gave evidence that at 4.30 p.m. on Thursday 27 March 2008, Christine had telephoned him and said that Gillian had told her to ‘tell Thomas that his services were no longer required.’ At the time of the call, the claimant was sitting in his vehicle accompanied by Mr Des Cunningham who gave evidence that he had heard the claimant speak to his sister on the phone and had been told by him afterwards that this was what Christine had said.

13. Miss Corran said that when she returned to work about 6 p.m., Mrs Campbell asked how Thomas had taken the news and she said “Fine”., Miss Corran informed Mrs Campbell that Thomas wanted to know whether he was sacked or redundant. Mrs Campbell asked how long Thomas had worked at Kaya and when she was told 10 years, she said that he was not redundant, he was sacked and that she would pay him two weeks pay. One of the bar staff, James Frith, provided a written statement to the claimant in which he referred to a conversation between Miss Corran and Mrs Campbell. The tribunal noted that the conversation was similar in some respects but materially different in others. The tribunal did not give any weight to the statement.

14. A short time after this, Miss Corran said that Mrs Campbell told her to forget what had been said earlier and give her Thomas’s telephone number as she needed to meet him to talk about stock issues. Both sides agreed that, having been given his number by Christine, Mrs Campbell telephoned the claimant and arranged to meet him on the premises the following day, Friday 28 March 2008 at noon.

15. Both agreed that at this meeting, the claimant told Mrs Campbell several times that he was no longer an employee as he had been told on Thursday 27 March 2008 at 4.30 p.m. by his sister, Christine, that his services were no longer required. Mrs Campbell ignored this and continued with her purpose of the meeting, finding out exactly what the claimant’s duties were, what wholesalers he used, what records he kept, what hours he worked, his rate of pay and other such matters. She had made notes of their discussion while they spoke. The claimant denied any such discussions had taken place, but when he was taken through the notes by Mr Hamill in cross examination, the tribunal was satisfied that the notes corroborated Mrs Campbell’s version of what had taken place. The matters discussed included the future requirement that the claimant work 20 hours each week on the premises and that Mrs Campbell would be involved in placing orders.

16. On Sunday 30 March 2008, the second respondent waited on the premises for the claimant to come in to discuss with her what would be ordered from the supplier on Monday morning. When he did not arrive, the second respondent rang to ask him when he would be in but was told by the claimant that he had been dismissed on Thursday 27 March 2008. Mrs Campbell denied that she had asked Christine to dismiss the claimant. The claimant ended the call.

17. Following her telephone conversation with the claimant on the evening of Sunday 30 March 2008, the second respondent wrote to the claimant the next day and told him that he was wrong to believe that his employment had been terminated. She made it clear that she had never authorised Christine to dismiss him and would not do so as Christine had no line management role over him and was his sister. The letter went on to say that despite her best efforts to persuade him otherwise, the claimant was determined that he no longer worked for the company. Mrs Campbell felt therefore that she had no alternative but to accept his refusal to come in to work as his resignation with immediate effect. The claimant did not respond to this letter. Christine Corran did not return to work at the restaurant. She reported sick and resigned soon after.

18. Mrs Campbell wrote again to the claimant on 21 April 2008 to ask him if he believed he was owed any money by the company and to seek confirmation that he held no documentation relating to the business. Again, no reply was made. In particular, no denial was made of the assertion that he had resigned, no claim was made that he had been dismissed or that he was owed any money until proceedings were lodged some months later.

The legal context

Part XI of the Employment Rights (Northern Ireland) Order 1996 (as amended) sets out the legal framework of unfair dismissal.

The right of an employee not to be unfairly dismissed is contained in Article 126 of the Order while Article 127 sets out the circumstances in which an employee is dismissed as follows;

(1) For the purposes of this Part an employee is dismissed by his employer if, and only if,

(a) the contract under which he is employed is terminated by the employer (whether with or without notice).

The Order defines employer as the ‘person by whom the employee is employed.’

(Art. 3(4))

Harvey on Industrial Relations and Employment Law at paragraph 201, The Concept of Dismissal, states;

“There can be no successful claim for unfair dismissal unless there has been a dismissal as defined by the legislation. It is for the employee to prove that he has been dismissed within the meaning of the relevant provision.”

21. At paragraph 250 et seq, it goes on to consider the situation where the alleged act of dismissal was by someone other than the actual employer. The issue then is whether, as a matter of law, it does in fact constitute a dismissal. The company law principle that a company will be bound by the actions of any officer who has either actual or ostensible authority is quoted. This is defined as someone who either has the authority or is held out as having the authority by someone capable of binding the company. (Emphasis added) Further, the Employment Appeal Tribunal was noted to have been of the view that where a purported dismissal was by someone with no actual or ostensible power to dismiss. It would expect the employer ‘speedily to restore the employee to full status on becoming aware of the action wrongfully taken in his name.’

Tribunal’s determination.

22. The tribunal gave very careful consideration to all the evidence presented to it and the applicable legal provisions detailed above. It was a very difficult decision for each of us. On the balance of probabilities, the panel unanimously found the version of events described by the claimant and his sister to have been less credible than that of the second respondent. In addition, the notes Mrs Campbell had made of their discussions during her meeting with the claimant were more corroborative of her version of events than that of the claimant. In particular, the tribunal considered it unlikely that the claimant would have engaged in discussions with the second respondent about his hours of work if he believed that she had terminated his employment. He was also alleged to have asked his sister to ask Mrs Campbell if he was dismissed or redundant, yet he did not ask her himself when he had the chance. Nor did he seek to have the alleged promise of 2 weeks notice pay confirmed.

23. The tribunal took into consideration the apparent lack of reason for Christine Corran to tell her brother he was dismissed if she had not believed it herself. The tribunal were satisfied that there was talk between the two women about the claimant’s job. Mrs Campbell may well have expressed a view of the claimant’s lack of contribution to the needs of the business. There may well have been misunderstanding on Christine’s part. Whatever the reason, the tribunal formed the view that even if we had believed the claimant and his sister’s version of events in its totality, there still would not have been a dismissal in law. Christine had never had any line management role in relation to her brother as they worked in different parts of the business. Nor did her position as manager apply to any part of the business except the restaurant. She had no actual or ostensible authority therefore, as required by the 1996 Order, to terminate his contract of employment.

24. The tribunal also noted that on the Sunday night, Mrs Campbell had expected the claimant to appear at the workplace and phoned him to ask if he was coming in. When he said he had been dismissed by Christine on Mrs Campbell’s instructions, Mrs Campbell took the first opportunity the next day to write to the claimant and explain that his sister had no authority to do so. In all the circumstances of this claim, the tribunal find on the balance of probabilities that the claimant resigned from his employment with the first respondent and was not unfairly dismissed. His claims are dismissed.

Chairman:

Date and place of hearing: 10-11 December 2008 and 20 January 2009,

Belfast

Date decision recorded in register and issued to parties: