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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Abraham v Rosemary and William John Cunn... [2010] NIIT 00309_10IT (06 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/00309_10IT.html
Cite as: [2010] NIIT 00309_10IT, [2010] NIIT 309_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 319/10
CLAIMANT: Robert Abraham
RESPONDENT: Rosemary and William John Cunningham t/a Kingshill Bakery
DECISION
The unanimous decision of the tribunal is that the claimant was not dismissed by the respondent and the claimant’s claim of unfair dismissal is therefore dismissed in its entirety.
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr R Gray
Mr J Hall
Appearances:
The claimant appeared and was represented at the hearing by Colm Hagan, Barrister-at-Law, instructed by John P Hagan, Solicitors.
The respondent appeared and was represented by Gavin Robinson, Barrister-at-Law instructed by Peter Murphy, Solicitors.
The Claim
1. The claim was a claim of unfair dismissal.
The Issues
2. The tribunal had to determine whether the claimant was dismissed by the respondent on or around 10 November 2009.
3. It was accepted by the respondent’s representative at the outset of the hearing that the statutory dismissal procedure was applicable in this case. He further accepted that the statutory procedure had not been followed. The respondent’s representative therefore accepted that, in the event the tribunal found that the claimant had been dismissed by the respondent, such dismissal was automatically unfair.
4. In the event that the tribunal found that the claimant had been automatically unfairly dismissed by the respondent, the tribunal would be required to determine the appropriate remedy. The claimant sought compensation only.
Identity of the respondent
5. At the beginning of the hearing, the Chairman sought to clarify the correct identity of the respondent. It was agreed by both parties that the correct respondent to the claim was Rosemary and William John Cunningham t/a Kingshill Bakery and the title of the proceedings was amended accordingly.
Sources of Evidence
6. The tribunal heard oral evidence from the claimant and from Mr Ian Scott, Mr John Cunningham and Mr William John Cunningham (Senior) on behalf of the respondent.
Contentions of the Parties
7. It was contended on behalf of the claimant that, on 10 November 2009, Mr John Cunningham, the manager of the respondent, had told him that he could look for alternative employment “from tomorrow”. It was contended that this constituted words of dismissal and that the claimant had properly concluded that he was dismissed. The claimant’s counsel further argued that the claimant had been unfairly dismissed and was entitled to compensation for such unfair dismissal. In respect of compensation, counsel also referred the tribunal to Article 27 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”).
8. The respondent’s counsel contended that the claimant had not been dismissed on 10 November 2009. Counsel for the respondent contended that no words of dismissal had been spoken by Mr Cunningham. Rather, he contended that the claimant himself had repudiated his contract of employment by his own actions in carrying out work for others in competition with the respondent’s business in the days immediately following 10 November 2009.
Facts of the Case
Having considered the evidence of the claimant and the witnesses on behalf of the respondent and having considered the documents referred to in evidence, and the submissions made on behalf of the parties, the tribunal found the following relevant facts:-
9. The claimant was employed by the respondent from 1 September 2003 as a delivery driver/van salesman. The claimant sold and delivered the respondent bakery’s buns, cakes and bread products to small shops and supermarkets throughout Northern Ireland and some parts of the Republic of Ireland.
10. The respondent’s bakery business started off in the early 1990s as a very small family business, essentially a diversification from the small family farm. When the claimant was first employed, the bakery business had only five staff, three of whom were members of the Cunningham family.
11. Throughout the period of the claimant’s employment, the respondent did not have written terms and conditions for employees nor were there any written employment policies and procedures. Employment issues were dealt with verbally, usually by John Cunningham the Manager of the respondent, in the first instance. The staff of the respondent understood generally, that, if they were unhappy with any decision made by John Cunningham, they could approach Mr William John Cunningham (Senior) who was generally seen as the ultimate authority in the business.
12. When an employee wished to make a request for holidays, the procedure was that the employee would simply make a verbal request to John Cunningham. It was generally understood by staff that approximately one months notice of the requested holiday was required. Prior to the events referred to below, Mr John Cunningham had never refused any request by the claimant for holidays.
13. During his employment by the respondent, the claimant also delivered bread products, namely bread baps, for Mr Martin Smith who traded under the name of “Marty’s baps”. In 2005, Mr John Cunningham came across the claimant in Belfast during the claimant’s working hours with a quantity of Marty’s baps in the respondent’s van. On that occasion, Mr John Cunningham administered what was, in effect, a verbal warning to the claimant.
14. Throughout his employment by the respondent, the claimant was by far the respondent’s best salesman. The respondent was reluctant to lose the sales figures generated by the claimant and this was why the respondent did not take more severe action against the claimant when he was found carrying Marty’s baps.
15. In April 2009, the claimant booked a trip to Poland. He was to travel to Poland with a group of friends from Tuesday 17 to Sunday 22 November 2009.
16. In his claim form and in his evidence to the tribunal, the claimant said that, in September 2009, he informed Mr John Cunningham that he would be taking four days holiday in November 2009 for his trip to Poland. The claimant’s evidence was that Mr Cunningham’s response was along the lines of “you can go, but you won’t be paid”. The claimant evidence was that he had simply put Mr Cunningham’s response down to him having “a bad day” and he had not challenged this.
17. In his evidence to the tribunal, Mr John Cunningham was adamant that this alleged conversation in September 2009 never took place.
18. Faced with this clear conflict of evidence, the tribunal was required to determine on the balance of probabilities whether this conversation did or did not take place. Generally, the tribunal considered that Mr John Cunningham gave his evidence in a manner which was straightforward, clear and consistent, even when under cross-examination by the claimant’s counsel. The tribunal also formed the view that, if the claimant had indeed been told in September that he would not be paid for holidays to which he was entitled, it is highly unlikely that the claimant would have remained silent about this and not taken the matter further, for instance taken it up with Mr William John Cunningham. On balance, the tribunal concluded, on the balance of probabilities, that no conversation regarding holidays took place in September 2009.
19. The tribunal heard evidence from Mr Ian Scott who is a self-employed electrical engineer who carries out work at the respondent’s bakery premises from time to time. Mr Scott’s evidence was that, a few weeks prior to 10 November 2009, he had a conversation with the claimant at the bakery when the claimant had said that he was soon going to be “starting his own line of stuff”. Mr Scott had not attached any significance to this conversation until he heard a few weeks later that the claimant had left the respondent. When he heard this, Mr Scott had informed Mr John Cunningham about what the claimant had said to him a few weeks before.
20. In his evidence, the claimant denied that any such conversation had taken place with Mr Scott.
21. The tribunal found Mr Scott to be an entirely straightforward and credible witness. On balance, the tribunal accepted Mr Scott’s version of events and therefore finds as a fact that the claimant did tell Mr Scott some weeks before 10 November 2009 that he was soon going to be starting his own line.
22. In November 2009, the respondent found itself short-staffed. One of its van sales drivers was absent on sick leave and another had to go in to hospital for an operation. This left the respondent with only the claimant and one other part-time van driver/salesman.
23. In his claim form and in his evidence to the tribunal, the claimant said that, on 10 November 2009, having returned from his rounds, he had spoken to John Cunningham in the general office of the bakery. The claimant’s version of this conversation is as follows. Mr Cunningham had said “you’ll be in Belfast next week” to which the claimant had replied “No, I’ll be in Poland next week”. Then Mr Cunningham said that the claimant had not told him about this. The claimant reminded him of an alleged conversation about holidays in September when Mr Cunningham had said the claimant would not be paid for holidays in November. The claimant’s version was that Mr Cunningham had then said this was correct, he would not be paid to which the claimant then said that he would look for another job. The claimant’s version was that the conversation ended with Mr Cunningham saying that he could look from tomorrow which the claimant understood to be a dismissal. The claimant’s evidence was that he was very shocked by this. However, he did not seek to appeal what he considered to be a dismissal by Mr John Cunningham.
24. In his evidence, Mr Cunningham gave a different version of this conversation. He said that the claimant had asked how things were going. Mr Cunningham replied that he was under pressure with being short-staffed to which the claimant had said that he was off next week. In Mr Cunningham’s version, this was the first time he had heard about the claimant’s holiday plans for November. Mr Cunningham then said that he couldn’t do without the claimant and the conversation concluded with the claimant saying that he would get another job and walking out.
25. The tribunal was required to resolve this clear and crucial conflict between the version of events given by the claimant and that given by Mr John Cunningham. The tribunal did not hear from any other witness to this conversation. As indicated above, the tribunal generally found Mr Cunningham to be a straightforward, clear and consistent witness, even under cross-examination. Further, the tribunal had to consider this conflict of evidence in the relevant context. The tribunal was mindful that the claimant was the respondent’s best salesman and that the respondent was exceptionally short-staffed at this time. The respondent had not previously dismissed the claimant even when he was found to be delivering a competitor’s products from the respondent’s van and on the respondent’s time. The tribunal therefore found it highly unlikely that Mr Cunningham would have dismissed the claimant at this time. On the other hand, the tribunal found it unlikely that the claimant would not seek to appeal a dismissal to Mr William John Cunningham (Senior) if he considered that he had indeed been dismissed by Mr John Cunningham. Further, the tribunal found it difficult to accept the claimant’s evidence that he had been very shocked following what he took to be a dismissal. It was accepted by both parties that a conversation had taken place on 10 November and this had been late in the day (around 4.30pm) after the claimant had completed his rounds. By very early the next morning, the claimant had been able to organise himself to load up his van, not only with Marty’s baps which he had previously been delivering, but also with Hazel’s cakes and buns which were new products to him. Rather, the tribunal considered it much more likely that the claimant had been preparing for some time to set up in business on his own account. This is also consistent with the tribunal’s finding of fact set out above that the claimant had told Mr Scott a few weeks previously that he would soon be starting his own line of stuff.
26. Having taking account of all the factors set out in the previous paragraph, the tribunal concluded on the balance of probabilities that Mr Cunningham’s version of this conversation on 10 November 2009 was correct. Specifically, the tribunal found as a fact that Mr Cunningham did not say that the claimant could “look for another job from tomorrow” nor did he say other words to that effect. The tribunal finds that this conversation ended with the claimant saying that he would look for other work and walking out.
27. On 11 November 2009, the claimant did not attend for work with the respondent. The claimant normally started work at 6 am. By 7.30 am, Mr John Cunningham realised that the claimant was not coming in to work and decided to undertake the claimant’s delivery round himself. When Mr John Cunningham reached the first shop on the round, he was informed that the claimant had been there before him. The claimant had sold Marty’s baps to this shop and also buns and cakes from a bakery in Larne called Hazel’s. Throughout 11 November, Mr John Cunningham found that the claimant was following the same round ahead of him selling Marty’s baps and Hazel’s cakes. A number of shops informed Mr Cunningham that they were transferring their business to the claimant.
28. On both 12 and 13 November, the claimant again failed to attend work for the respondent. Once again, Mr Cunningham found that the claimant was following his normal round selling and delivering Marty’s baps and Hazel’s cakes and buns to the respondent’s customers.
29. On Thursday 13 November, Mr William John Cunningham phoned the claimant on his mobile. He asked the claimant about a particular unpaid account, but this was largely a pretext to establish the position with the claimant. The claimant replied that this account was “your problem now” and cut short the call. Mr William John Cunningham (Senior) tried to telephone the claimant again over the next few days, but these calls were not answered.
30. On 16 November 2009, the respondent issued a P45 to the claimant. The date of termination was given as 13 November 2009. Outstanding pay and holiday pay were also sent to the claimant.
31. From 17 to 22 November 2009, the claimant was on holiday in Poland. Whilst he was away, he arranged for someone else to continue deliveries and sales of Marty’s baps and Hazel’s cakes in his absence.
32. Within a short time, the claimant’s net profits from his new business had equalled or exceeded his earnings from his former employment with the respondent.
33. After the claimant left the respondent’s employment and despite engaging a replacement, the respondent suffered a significant decrease in sales of cakes, buns and bread products and therefore in profits.
Statement of Law
34. There was a dispute in this case as to whether the claimant had been dismissed by the respondent. In such a case, the burden of proof rests with the claimant to satisfy the tribunal that he was dismissed. The position is described in Harvey on Industrial Relations and Employment Law (Div D I A para 201) as follows:-
“If the fact of dismissal is disputed, it is for the employee to satisfy the tribunal on this point. If he fails to do so, he will lose his case.”
35. In the case of Dalitis t/a Shanklin Motor Com v Plissi UKEAT/0127/08/MAA, the EAT made it clear that in cases where there was a dispute between the parties as to whether the claimant was dismissed or whether he resigned, the tribunal must make a specific finding of fact as to the words spoken.
36. The question of whether an employee can be considered to have dismissed himself by reason of repudiatory conduct is discussed at Div D I (2) paras 291 – 300 of Harvey. The learned author of Harvey suggests that there may be a limited number of cases where certain acts of an employee automatically terminate the contract of employment without the need for acceptance by the employer, such as “where the employee has by his conduct indicated that he is no longer willing to continue employment relationship e.g. he has left and obtained another job”.
37. Article 27 of the 2003 Order requires the tribunal to make an additional award to the claimant where the respondent has failed to provide a written statement of initial employment particulars and where the tribunal has
a) found in favour of the claimant but makes no award; or
b)
makes an award to the claimant
Conclusions
38. In this case, there was a clear dispute on the evidence as to the content of the conversation which took place between the claimant and Mr John Cunningham on 10 November 2009. For the reasons outlined above, the tribunal preferred Mr Cunningham’s version of events.
39. In the claim form and at all stages of this case, the claimant’s case relied very heavily on the contention that words of dismissal had been spoken by Mr Cunningham 10 November 2009. The alleged words of dismissal were to the effect that “you can look for another job from tomorrow”. The tribunal made specific findings of fact in relation to the content of the conversation on
10 November 2009 as required by the Dalitis case. The tribunal found as a fact that neither the words alleged by the claimant nor any words to the same effect were spoken. That being the case, the only conclusion open to the tribunal was that the claimant was not dismissed as a result of words spoken by Mr Cunningham on 10 November 2009.
40. The tribunal went on to consider whether there was any alternative basis on which the claimant could establish that he had been dismissed by the respondent. The tribunal considered, for example, whether the issuing of a
P45 to the claimant effectively constituted a dismissal.
41. The tribunal rejected this analysis. In the days leading up to the issue of the
P45, the claimant failed to attend for work and commenced a new business in direct competition with that of the respondent. Those actions made it clear that the claimant was no longer willing to continue the employment relationship with the respondent. The tribunal therefore concluded that the claimant had in effect automatically terminated his contract of employment by this own actions without the need for acceptance by the respondent. The tribunal agreed with the submission of the respondent’s counsel that in issuing the P45, the respondent was doing nothing other than reflecting the reality of the situation. Accordingly, the tribunal had little hesitation in concluding that the claimant was not dismissed by the respondent.
42. The tribunal has not found in favour of the claimant so the question of an additional award under Article 27 does not arise.
43. Since the claimant was not dismissed, the claim of unfair dismissal must be dismissed in its entirety.
Chairman:
Date and place of hearing: 8 and 29 June 2010, Belfast
Date decision recorded in register and issued to parties: