Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/02836_10IT.html
Cite as: [2011] NIIT 2836_10IT, [2011] NIIT 02836_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2836/10

CLAIMANT: Konrad Romanowski

RESPONDENT: Mullinsallagh Ltd, T/A OB Construction

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of unfair dismissal and for unauthorised deduction of wages are not made out and the claims are dismissed by the tribunal, without further order.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr M Grant

Mr T Waite

Appearances:

The claimant was represented by Ms Maria Mulholland, Barrister-at-Law, instructed by Berkeley White, Solicitors.

The respondent was represented by Mr Joe Kennedy, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.

REASONS

1. By claim dated 23 November 2010, the claimant claimed unfair dismissal and unauthorised deduction of wages. By response dated 13 January 2011, the respondent denied that the claimant had been unfairly or constructively dismissed and the claim for unauthorised deduction of wages was also denied. The respondent contended that the claimant had not been dismissed but rather that the claimant had resigned.

2. The claimant is a Polish national. His command of English is quite good. However, in order to ensure that the claimant was not placed at any disadvantage in terms of his comprehension of proceedings, an interpreter was provided at all stages throughout the course of the hearing (save for a very small part of the hearing where it was confirmed by the claimant’s representative that it was accepted that the claimant was placed at no disadvantage concerning the conduct of that part of the matter). The tribunal is thus satisfied that the claimant suffered no detriment or disadvantage on account of the fact that the proceedings were conducted in English and that English is not the claimant’s first language.

3. At the outset of the hearing an issue arose concerning whether or not the tribunal had jurisdiction to hear a claim of constructive dismissal. Having noted the content of the claim documentation and having heard submissions in regard to the issue from the respective representatives, the tribunal determined that the tribunal had no jurisdiction to hear any claim for constructive dismissal for the reason that such a claim has not been instituted by the claimant in accordance with the statutory procedures. Accordingly, the tribunal proceeded to hear and to determine the claim for unfair dismissal and the claim for unauthorised deduction of wages.

4. In regard to the unfair dismissal claim, the tribunal had to determine as a primary issue if there had been a dismissal of the claimant by the respondent. The tribunal noted the claimant’s contention that he had been dismissed from employment and the respondent’s contention that the claimant had resigned.

5. The tribunal heard oral evidence from the claimant and, on behalf of the respondent, from Daniel O’Boyle the respondent's production manager, Ruairi O’Boyle, a director of the respondent company and general manager, Imelda McErlean, the respondent’s office administrator, and Brenda Carolan, the respondent's accounts technician. Upon conclusion of the hearing, the tribunal had the benefit of written submissions and of replies thereto and further replying submissions on behalf of the respective parties. The tribunal is grateful to the respective representatives for the assistance provided in such submissions in reaching a determination in the matter.

THE TRIBUNAL’S FINDINGS OF FACT

6. In consequence of the oral and the documentary evidence adduced, the tribunal, on the balance of probabilities, determined the following material facts:-

6.1 The claimant is a Polish national who commenced working in Northern Ireland in 2007. The claimant’s first day of employment with the respondent was 2 May 2007.

6.2 The respondent carries on the business of fabrication and installation of concrete and other construction products from premises at Knockloughrim, Magherafelt, County Londonderry. That part of the respondent’s industrial operation which was of particular note was the fabrication of the various reinforced concrete products at the respondent’s premises. Part of this process involved operatives bending structural steel into appropriately sized and shaped components for use with reinforced concrete mouldings and structures, together with associated operations.

6.3 The work of the claimant with the respondent involved the hand bending of structural steel bars, the operation of hydraulic equipment designed to work with this structural steelwork, using a forklift truck to move components, parts and materials, and any necessary record-keeping and documentation in regard to the work operations and processes, together with other associated tasks normally conducted in this industry. At the time, the respondent was also taking steps to train the claimant in the conduct of welding operations.

6.4 In February 2010 the claimant sustained an injury to his back. The tribunal makes no finding as to how that occurred. The effect of sustaining that injury was that the claimant was absent from work from 10 February to 19 February 2010. Despite being further certified as unfit for work by his doctor, the claimant returned to work on 22 February 2010.

6.5 The respondent's evidence from Ruairi O’Boyle was that the claimant did not inform the respondent as to the cause of his “back pain”; for that was the Doctor’s description of the cause of unfitness for work as mentioned in the medical certification. According to Ruairi O’Boyle, the first that the respondent knew of the alleged cause was when the respondent, some time later, received a Solicitor's letter of claim regarding an alleged injury at work by the claimant. The claimant did not expressly inform the respondent’s management at the time, from his own evidence, concerning the cause and the circumstances of the February 2010 absence from work and any possible associated injury. The claimant nonetheless contended in his evidence that this was “common knowledge” in the workplace. There was no other evidence to support that. Daniel O'Boyle's evidence was that the claimant and he regularly discussed their back problems, Daniel O'Boyle's apparently stemming from footballing injuries and the claimant's, as far as Daniel O'Boyle was concerned, seemingly from weight lifting. According to Daniel O'Boyle these discussions concerning back problems and issues commenced well before the claimant’s February 2010 absence from work. The tribunal accepts the respondent's evidence in this respect. The tribunal’s finding is that the respondent's management did not enquire as to the details of the cause of the claimant’s absence from work and the respondent's management were not expressly informed by the claimant at the time concerning any accident or injury underlying his absence for these days in February 2010.

6.6 After the claimant’s return to work in February 2010 his employment with the respondent appears to have been quite uneventful until events that occurred on Friday, 10 September 2010. On that day, the claimant arrived at work as normal. He performed his customary work duties as usual. The claimant's evidence to the tribunal was that quite early on in the day he was endeavouring to lift a trailer. In doing so he contended that he strained or in some way hurt his back or aggravated an existing back injury or condition. There is however no evidence that the claimant informed any of his workmates or indeed any members of the respondent’s management at that particular time of any injury or difficulty occurring.

6.7 The respondent’s business administration is conducted from an office which consists of a reception area, from which reception leads a short corridor off which are located a number of smaller offices. On 10 September 2010 the claimant came into the reception area. From the evidence, the tribunal believes this to have been approximately 1.00 pm. The claimant spoke with Daniel O’Boyle at or close to Daniel O’Boyle’s office. The claimant had completed an order for work which required to be processed, with records and documentation being completed by the respondent’s quantity surveyor. The claimant’s discussion with Daniel O’Boyle at the time concerned the claimant requesting to be assigned more work to do. The tribunal’s finding is that the claimant did not mention any back injury or any difficulty or restriction in his capacity to work at that specific time; in doing so the tribunal accepts the evidence of Daniel O’Boyle.

6.8 What then occurred is a matter of substantial factual dispute. The claimant’s evidence, which version of events was not directly corroborated or supported by any of the witness evidence from the other parties, is that when he requested more work Daniel O’Boyle asked the claimant to wait outside the office. In his evidence, the claimant did not mention his speaking to any other person in the office at that time. Daniel O’Boyle then came out and he told the claimant to tidy up the yard. The claimant's evidence concerning what happened next is that the claimant then told Daniel O’Boyle that he could not do this tidying work as he could not lift heavy items. The claimant's evidence continues that in response to this Daniel O’Boyle became angry and he said to the claimant that if he (the claimant) did not like the work he could go home and his P45 would be sent to him. The claimant, in response, got into his car and he drove home.

6.9 The claimant’s version of events was significantly contradicted by the respondent’s witnesses. Daniel O’Boyle’s version of events was that the claimant had approached him in the office to enquire about any work orders for processing. Processing one particular order was going to take a period of time as this involved the respondent's quantity surveyor, Kevin Gallagher, in scrutinising the order. Accordingly, so as Daniel O’Boyle could keep the claimant occupied and busy, he requested the claimant to go out and to tidy up the yard. Daniel O’Boyle’s evidence continued that the claimant, after first having stated that the yard was tidy and after having again been requested by Daniel O’Boyle to tidy the yard, then asked Daniel O’Boyle why he (Daniel O’Boyle) did not ask another employee (an employee named Philip Good who was a welder) to tidy up the yard. However, as that employee was engaged in other work at the time, Daniel O’Boyle repeated his request. Then the claimant went to Ruairi O’Boyle’s office and the claimant spoke with Ruairi O’Boyle. Ruairi O’Boyle’s response was the same as that of Daniel O’Boyle in that he also told the claimant to go out to the yard and do the work which he had been instructed to do. The claimant then returned to Daniel O’Boyle. At this stage he was becoming loud and agitated. The claimant began to swear in Polish. Daniel O’Boyle then accompanied the claimant outside to the yard. Daniel O’Boyle’s account is that the claimant then stated to Daniel O’Boyle that he was not going to do the work, that it was not his job and that he was going to go home as he would not be tidying the yard. Daniel O’Boyle was quite insistent in his evidence that at no stage did the claimant make any mention whatsoever of any back injury nor did he allude to any physical difficulty preventing him from carrying out the work instructed. The claimant then, according to Daniel O’Boyle’s account, “stormed off”, towards his car and asked that he be sent his P45. His precise words, according to Daniel O'Boyle, were, “I’ll not be f’ ing doing that, that's not my job, I go home, I’ll not tidy that, send me my P45”. Daniel O'Boyle's account was that the claimant stated clearly, “send me my P45”, on at least two occasions at this particular time. The claimant was not given permission by Daniel O’Boyle to leave the workplace at this time. The claimant then drove off in his car. Immediately after the claimant's departure, Daniel O’Boyle approached Ruairi O’Boyle and discussed what had transpired, in the office.

6.10 Ruairi O’Boyle’s account in his evidence was that he was in his office on the day in question when he overheard the initial conversation between the claimant and Daniel O’Boyle. Daniel O’Boyle had told the claimant that the order being worked upon could not be processed any quicker and had asked the claimant to tidy up the yard. The claimant then came to Ruairi O’Boyle in his office and asked Ruairi O’Boyle to speed up the order. Ruairi O’Boyle explained that he could not do that and explained the reason for this. Ruairi O’Boyle then stated to the claimant to go and tidy up the yard. The claimant then went back towards Daniel O’Boyle and Ruairi O’Boyle heard the claimant’s voice being raised and the claimant becoming more noisy. Ruairi O’Boyle stated to the tribunal that at this time he felt that this was merely “banter”, as he put it, and he thought nothing of it at the immediate time. Ruairi O’Boyle however did not hear what happened next as that took place outside in the yard and beyond his own earshot. A short time afterwards Daniel O’Boyle came in to the office and he spoke with Ruairi O’Boyle. Daniel O’Boyle stated that the claimant had just left work and that the claimant had just asked for his P45. Ruairi O’Boyle’s best recollection given in his evidence of the words used to him by Daniel O'Boyle at the time were, "That guy’s just left and asked for a P45”, and, “That guy has headed home shouting for me to give him his P45”. Ruairi O’Boyle had himself heard the claimant swearing and the claimant's raised voice but he had felt at the time that probably not much would come of it. Ruairi O’Boyle had also heard a car leaving the work premises quite noisily in the immediate aftermath of these events.

6.11 Corroboration of the accounts given by Daniel O’Boyle and Ruairi O’Boyle was provided in the evidence of Imelda McErlean, the respondent’s Office Administrator. She stated in her evidence that she had been present in the office reception area at the time the claimant arrived with his order. She witnessed the conversations which took place thereafter in the office. The tribunal found Imelda McErlean’s evidence to be given in a straightforward and credible manner. Imelda McErlean confirmed to the tribunal that the claimant had come into the office that day. This was about lunchtime, or just after. The claimant came in the office door and he asked for Daniel O’Boyle. The claimant then walked to Daniel O’Boyle’s office door and he spoke with him. He then went and stood just outside Ruairi O’Boyle’s office door which was open at the time and he spoke with Ruairi O’Boyle. The claimant then came back and Daniel O’Boyle appeared to meet the claimant in the doorway of his own office. The claimant asked Daniel O’Boyle what was happening and Daniel O’Boyle asked the claimant to tidy up the yard. The claimant then put his hands up in the air and he began to swear in Polish. Daniel O’Boyle then accompanied the claimant out through the office door. A short time afterwards, Imelda McErlean observed the claimant’s car leave the yard. Daniel O’Boyle then returned to the office and Imelda McErlean spoke with him. Daniel O’Boyle stated to her that the claimant had just requested his P45. Brenda Carolan, the respondent’s Accounts Technician, provided corroboration in respect of the foregoing to the extent that, although she was in her office with the door closed, she stated that she heard a raised voice at the time, speaking in Polish. However, she did not hear the exact details of the conversation.

6.12 The claimant's evidence was that he telephoned his doctor on that Friday, 10 September 2010. There was no corroboration of that and no entry was made in the medical notes and records inspected by the tribunal. On the following Monday, 13 September 2010, the claimant telephoned his Doctor and he arranged an appointment. There is a record of that recorded in the medical notes which mention a “telephone encounter”. The claimant attended his Doctor on Wednesday, 15 September 2010 and he was given a medical certificate. The claimant was certified by his Doctor as unfit for work for two weeks from 10 September 2010. On 15 September 2010, the claimant attended the respondent’s workplace with the medical certificate. He left the certificate at the reception desk. Brenda Carolan had been informed by Ruairi O’Boyle that the claimant had resigned and she had been instructed to complete a P45 for the claimant. Brenda Carolan did this and she made out a cheque for the claimant's final wages. When the claimant came in to the office on 15 September 2010, he left the medical certificate in the office reception area. He began to leave and Brenda Carolan followed him out and endeavoured to hand the claimant the P45. She stated to the claimant that she could not take the medical certificate as the claimant had resigned. The claimant refused to accept the P45. Brenda Carolan then telephoned Ruairi O’Boyle, the latter being absent from the office at a funeral that day, in order to seek advice. Ruairi O’Boyle confirmed that it was in order for Brenda Carolan to accept the medical certificate.

6.13 One issue which emerged in the case concerned the precise nature of the work which Daniel O'Boyle had asked the claimant to perform on 10 September 2010. This, the claimant stated in his evidence, he felt incapable of carrying out on account of his back injury or condition. The claimant's evidence was that the instructed work would have involved, without any assistance, his lifting quite heavy objects such as long scaffolding boards and metal trestles in order to place the yard in a condition where the forklift truck could be used effectively. In evidence on behalf of the respondent, both Daniel O'Boyle and Ruairi O'Boyle stated that the task of cleaning up the yard was not as physically demanding as suggested by the claimant. Photographic evidence that had been taken on 12 April 2011 was produced to the tribunal to indicate the general nature and circumstances of the yard. However, that was of limited evidential value and there was no contemporaneous photographic or other evidence concerning the condition of the yard at the time that Daniel O'Boyle had requested the claimant to do the tidying work. The tribunal was thus left with conflicting evidence concerning whether the yard tidying task as instructed was a relatively light task, or not, in comparison to the steel bending and other physical tasks which the claimant had been conducting that morning. Daniel O'Boyle's evidence to the tribunal appeared to suggest, without going into detail, that on previous occasions the claimant might have been somewhat reluctant to tidy up the yard, suggesting that the claimant did not want to accept responsibility for tidying up what he felt others ought to have tidied.

6.14 The tribunal inspected an unredacted copy of a material extract from Ruairi O'Boyle's office diary at this time. At first sight some of the entries in this were rather curious as they appeared to have been inserted on the wrong date. In Ruairi O'Boyle's evidence to the tribunal he explained how he had mistaken certain dates and had become confused concerning dates at the time some of the diary entries were made. However, Ruairi O'Boyle maintained, notwithstanding this, that the diary entries were made in a contemporaneous manner by him and that such records ought to be accepted by the tribunal as a proper recording of his notes of circumstances or events occurring upon of the dates in question. There was apparent confusion over the dates in the diary with the Thursday and the Friday of that week (9 and 10 September 2010) seemingly being confused. Then in an entry on Monday, 13 September 2010, it is recorded that the claimant did not contact the respondent to confirm his status. In regard to these entries, the evidence of Ruairi O'Boyle to the tribunal in cross-examination was that some of these entries had been recorded after he had sought legal advice and various possible scenarios had been discussed with his legal adviser. Thus entries had been made in the diary to accord with these potential scenarios. The cumulative effect of the confusion concerning dates and the discrepancies in some of the entries raised concerns as to whether or not the evidence of Ruairi O'Boyle that these were contemporaneous entries could be readily accepted. Accordingly the tribunal treated this particular evidence of Ruairi O'Boyle about precise contemporaneity of these entries with some circumspection.

6.15 In the immediate aftermath of the events of 10 September 2010, neither Daniel O'Boyle nor Ruairi O'Boyle made any attempt to contact the claimant directly. The tribunal heard and accepted certain evidence from Ruairi O'Boyle that in the type of business conducted by the respondent fulfilling orders in a timely manner was of the utmost importance. Ruairi O'Boyle confirmed to the tribunal that, once it had been ascertained by the respondent that the claimant had resigned from employment, it was critical, in order to avoid financial penalties and to adhere to contractual obligations, to have an operative do the work which had been carried out by the claimant up to that point. Ruairi O'Boyle therefore contacted that day, 10 September 2010, a person called Robert Sloan and Mr Sloan commenced employment with the respondent on the following Monday, 13 September 2010.

6.16 The claimant telephoned the respondent on Tuesday, 14 September 2010 and he spoke with Ruairi O'Boyle. When the claimant mentioned that he was intending to leave in a medical certificate concerning his unfitness to work, Ruairi O'Boyle replied to the claimant by stating that the claimant had resigned on the previous Friday and therefore there was no point in the claimant leaving in the medical certificate.

6.17 By letter dated 17 September 2010, which was hand delivered by Ruairi O'Boyle to the claimant, Ruairi O'Boyle wrote to the claimant confirming that he acknowledged and confirmed the claimant’s resignation, tendered orally on 10 September 2010. Mention was made of the claimant's attendance at the office on 15 September 2010 with a doctor's certificate and that the company did not require this as the claimant had resigned on 10 September.

6.18 The tribunal did not need to determine any further material findings of fact for the purpose of reaching its decision in this case.

THE APPLICABLE LAW

7. The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. Before any tribunal can deal with the substantive law concerning unfair dismissal, the tribunal must be satisfied that there was a dismissal.

THE TRIBUNAL’S DETERMINATION

8. Dealing, firstly, with the claimant’s claim for unauthorised deduction of wages, the tribunal notes that it received no specific evidence in respect of this head of claim nor was there any specific reference made to that claim in the submissions to the tribunal. For want of evidence to sustain this head of claim and in the absence of any submissions expressly made in support of that claim, the tribunal finds that the claim for unauthorised deduction of wages is not made out and the claim is dismissed by the tribunal, without further order.

9. The tribunal then turns to the claim of unfair dismissal. It is essential to examine with some care the precise circumstances under which the contract of employment in this matter came to an end. For the claimant, it has been submitted that the effective date of termination of the contract was 10 September 2010, this being the date upon which it is contended that the termination took effect, notwithstanding that the claimant was not made aware of this until 14 September 2010, so it is submitted. Following the claimant leaving the yard on the day in question, the claimant’s contention is that Ruairi O’Boyle, as a Director of the respondent company and having the capacity to engage and to dismiss employees, made the decision to dismiss the claimant, without notice. However, it is also submitted that that decision was not communicated to the claimant until 14 December 2010 when the claimant telephoned Ruairi O’Boyle to inform him about the medical certificate.

10. The respondent’s case in the matter is that the claimant refused, without any proper cause, a work task instructed to him. Then the claimant employed unambiguous words of resignation, which unambiguous words of resignation were properly and reasonably construed as such by Daniel O’Boyle who immediately reported the position to Ruairi O’Boyle. Ruairi O’Boyle then, understanding that the claimant had resigned from employment, proceeded in consequence of that resignation by very shortly thereafter engaging another employee to undertake the work which had been carried out by the claimant. In undertaking this, Ruairi O’Boyle de facto accepted the repudiation of the contract by the claimant.

11. The central task of the tribunal in assessing the regrettably conflicting evidence in the matter concerns properly arriving at determinations of fact flowing from the appropriate assessment of disputed evidence. One of the central determinations of fact in this case arises from an evaluation of the evidence concerning the words spoken by the claimant at the material time and whether or not the claimant employed unambiguous words of resignation, thereby evidencing some manner of intent to terminate the contract of employment. The legal effect of any actions requires thereafter to be assessed, once the essential facts have been established.

12. Dealing, firstly, with matters of essential fact, the tribunal gave consideration to the evidence of the claimant and of the respondent's witnesses concerning the events of 10 September 2010. The tribunal generally found the evidence of Daniel O’Boyle to be given in a clear and forthright manner. The same can be said about the evidence of the respondent’s witness Imelda McErlean, whom the tribunal found to be an honest and compelling witness insofar as her evidence went. These observations can also be applied to the evidence of Brenda Carolan, which latter evidence, although credible, provided a lesser degree of corroboration to the evidence of the respondent's main witnesses regarding the events which transpired on that day. These various witnesses portrayed a sequence of events and a series of interactions between the claimant and both Daniel O’Boyle and also Ruairi O’Boyle in the respondent's office which culminated in the claimant becoming angry and agitated. This conduct on the claimant's part was witnessed directly by Imelda McErlean. Brenda Carolan provided corroboration from what she heard at the time. It is noteworthy that in giving his own evidence, the claimant provided almost no detail of these specific events. Indeed the tribunal's assessment was that the claimant appeared unwilling to impart the full version of the events which transpired at that time. The tribunal's assessment was that this reluctance was not impacted upon by the claimant not having English as his first language, but rather displayed a lack of forthrightness which somewhat impacted on the claimant’s general credibility.

13. The evidence which most persuaded the tribunal demonstrates that Daniel O’Boyle left the office premises together with the claimant, who was at that stage in an angry and frustrated mood. This anger and frustration on the claimant's part was as a result of the claimant, after having been initially instructed by Daniel O'Boyle to tidy up the yard, then approaching Ruairi O’Boyle in the office to see if he could achieve any better success in avoiding carrying out this work instruction. Ruairi O’Boyle then made it quite clear to the claimant that he had to carry out the task instructed by Daniel O’Boyle. The claimant was most reluctant to do so. His mood deteriorated very rapidly to one of anger. He raised his voice and he cursed in Polish; this was witnessed by the office staff. The tribunal does not accept the claimant’s contention that he explained that he had injured his back on that morning and that this was the stated cause of his reluctance to carry out this instructed work. In leaving the office, therefore, in the company of Daniel O'Boyle the claimant was in an angry and obstinate frame of mind.

14. The tribunal then turns to examine what is probably the most central part of the tribunal’s fact finding. This is to assess the true facts concerning the exchange which then took place out of the earshot of the other witnesses and just between Daniel O’Boyle and the claimant. The tribunal noted the conflicting testimonies. Assessing the relative credibility of both the claimant and Daniel O’Boyle, the tribunal prefers the evidence of Daniel O’Boyle. In making a particular assessment of the claimant in some crucial aspects of the case, the tribunal found the claimant’s evidence to be in some respects vague and unsatisfactory. The tribunal notes a number of matters where the claimant stated that he “could not remember” when certain things were put to him in cross-examination, in a less than convincing manner. The tribunal's general impression was that the claimant endeavoured to be selective and somewhat guarded in the giving of his evidence. To take one example, the tribunal found the evidence of the claimant, where he maintained that he had had no difficulties with his back prior to February 2010 and that he had not done weight lifting, problematical. The medical records introduced into evidence did show a record of issues concerning the claimant's back prior to February 2010. Upon cross-examination, the claimant did eventually concede that he possessed a weight lifting belt and that he did some weight lifting and had some weight lifting equipment. To take another example, the impression the claimant attempted to impart to the tribunal was that he had only spoken with Daniel O’Boyle at the time of the events which particularly concern this matter, not Ruairi O’Boyle. Having been afforded every opportunity fully to portray all of the material events, the claimant in his evidence denied, on several occasions when it was put to him, speaking with Ruairi O’Boyle. However, the tribunal has made the determination based upon the entirety of the evidence that Ruairi O’Boyle had indeed spoken with the claimant in the office and had instructed him at the time to carry out the tasks which Daniel O’Boyle had requested him to do. In contrast to the difficulties experienced with some of the claimant’s evidence, the tribunal encountered no such difficulties with Daniel O’Boyle as a credible and consistent witness.

15. From the evidence of Daniel O’Boyle, what transpired was that Daniel O’Boyle and the claimant walked together out of the office. The claimant then stated to Daniel O’Boyle that he would not be tidying up the yard and that it was nothing to do with him. The claimant stated, “I’ll not be f’ing doing that, it’s not my job!”. When Daniel O’Boyle instructed him again to do the tidying up work the claimant repeated that he would not be doing that work. The claimant then, as Daniel O’Boyle observed it, “stormed off” shouting back, “You can send me my P45”. Daniel O’Boyle’s evidence was that the claimant stated this latter on at least two occasions. The claimant then immediately got into his car and he drove off. Near contemporary corroboration of these events is provided by the evidence that Daniel O’Boyle immediately returned to the office and stated to Ruairi O’Boyle words such as, “That boy’s just resigned and asked me to send on his P45”. The tribunal accepts the evidence that Daniel O'Boyle had a conversation with Ruairi O'Boyle of this nature immediately after his exchange with the claimant. The tribunal's conclusion in respect of this evidence is that, unless Daniel O’Boyle took it upon himself inaccurately to portray to Ruairi O'Boyle what the claimant had just stated in the immediate aftermath of the conversation (which the tribunal does not accept as a proposition), Daniel O’Boyle's recounting of this information to Ruairi O’Boyle was an accurate account of what had just transpired and thus of the words which had been spoken by the claimant and his actions thereafter. Ruairi O’Boyle was thus entitled in a managerial capacity to interpret these words and to act appropriately.

16. The words used by the claimant are not such as to give rise to possible ambiguity. Under cross-examination, the claimant confirmed to the tribunal that he fully understood what a “P45” was and the significance of requesting a P45 from an employer. Of course the claimant in this case denies that he requested a P45. The tribunal, considering all of the evidence, finds that there were words uttered and employed by the claimant which constitute, without any doubt, unambiguous words of resignation. It is worthy of mention, once again, that the tribunal is satisfied that there were no linguistic or interpretational issues affecting the claimant’s use of these words. The tribunal’s finding accordingly is that these words were used by the claimant in full comprehension of the proper meaning and significance of the words used and of the potential effect or impact upon the contract of employment.

17. Introduced into evidence in the matter were copy diary entries from a diary maintained by Ruairi O’Boyle. In submissions for the claimant, it was contended that the diary entries disclosed matters which would impact significantly upon the credibility of the respondent’s case. The tribunal noted that the evidence of these diary entries was somewhat problematical with confusion over dates and some redactions. The tribunal’s assessment of this evidence was that this cast doubt upon whether or not these were indeed fully contemporaneous entries, as suggested to the tribunal. Notwithstanding the uncertainty concerning the provenance of these diary entries, in other material respects the evidence of Ruairi O’Boyle was consistent with that of Daniel O’Boyle and Imelda McErlean, with whom the tribunal had no issues regarding personal credibility. Accordingly, the tribunal is satisfied that the claimant did not bring to the attention of either Ruairi O’Boyle or Daniel O’Boyle on that day the matter of an alleged injury to his back as being a reason for his stated incapacity in carrying out the instructed task of tidying up the yard.

18. Whilst Ruairi O’Boyle did not make any endeavour in the immediate aftermath of these events to contact the claimant to communicate the respondent’s acceptance of the claimant’s resignation, his actions very shortly thereafter in arranging to engage a person to carry out the claimant's job functions are consistent with the acceptance of the resignation and this engagement of another employee bears out the position as it was seen by the respondent.

19. In submissions made on behalf of the claimant, the tribunal's attention is drawn to one particular diary entry dated Monday, 13 December 2010, which states “Konrad Romanowski did not ring to confirm status – P45 to be issued”. For the claimant it has been submitted that this entry was made for the reason that Ruairi O’Boyle knew that the claimant had not resigned on 10 September 2010. Ruairi O’Boyle’s explanation for this was that he had sought legal advice immediately after the events which occurred on 10 September 2010. As a result of this advice he had anticipated that there might well have been a further approach from the claimant concerning his status. In further submissions on behalf of the claimant, reference has been made to a further diary entry dated 15 September 2010 which reads, “Unequivocal - by law - pay him his notice:- one week per year - outstanding holidays, period of service end as paying in lieu of notice he requested”. It is contended in submissions that these words demonstrate that the respondent did not believe the claimant had resigned from employment. The respondent's explanation provided by Ruairi O’Boyle is that he had sought legal advice and he had written these words in his diary notes on the basis of that legal advice.

20. The tribunal has found that the claimant had used unambiguous words of resignation. Accordingly, the tribunal had some difficulty in comprehending the advice apparently tendered, as that has apparently been recorded by Ruairi O'Boyle. However, the tribunal has also considerable difficulty in going behind any legal advice provided at the time for the reason that the tribunal has no means of assessing the nature and quality of instructions given at the time to any legal adviser nor the nature and quality of the legal advice provided at the time and whether it was fully and accurately recorded in the diary. The tribunal does however accept the evidence of Ruairi O'Boyle that he did seek legal advice immediately these events transpired. Accordingly the tribunal does not draw any conclusions as a result of the apparent recording of any advice received in the diary notes and in consequence of this particular submission made on behalf of the claimant.

21. What legal consequences then arise from the unambiguous words of resignation that were uttered by the claimant on 10 September 2010? In submissions, the claimant’s representative has contended that there were various special circumstances attaching to the matter. Foremost amongst these special circumstances included the contentions that the words spoken by the claimant were said, “in the heat of the moment”, that the claimant was suffering from a painful back injury at the time, and, furthermore, that the respondent was eager to get rid of the claimant because of his ongoing back problems (with the contention that the respondent’s endeavour to find an immediate replacement for the claimant in the form of Mr Sloan was clear evidence of the respondent's intention to be rid of the claimant). This submission on behalf of the claimant is grounded upon the contention that if words are uttered in special circumstances which demonstrate that the person saying them did not mean to resign, then the employer is not entitled to interpret the words used as constituting a resignation. Amongst a number of cases, the following particular cases were cited in argument:-

Iris Maida Sothern v Franks Charlesly & Co [1981] IRLR 278 CA; Greater Glasgow Health Authority v Mackay [1989] SLT 729;

Sovereign House Security Services Ltd v Savage [1989] IRLR 115;

Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 (EAT);

and the tribunal was also referred to relevant extracts from Harvey.

22. The tribunal notes that the state of the law in regard to this area is somewhat problematical (see the commentary in Harvey in that respect). There are certain conflicting authorities; the tribunal can only take heed of the preponderance of authority in regard to particular issues under scrutiny in this matter. The tribunal may begin its task by discounting any references to ambiguous language referred to in the commentaries or authorities, for the reason that the language used by the claimant has been determined by the tribunal to be unambiguous, without doubt.

23. The general tenor of the authorities in respect of unambiguous language of resignation, which indeed is the language encountered in this case, is that the tribunal begins with the subjective position: that the speaker has to take the consequences that his clear words of resignation shall be taken at face value by the employer (no matter how a reasonable listener might have interpreted the words). However, this simple statement is or can be subject to qualification by the possible admission of an exception. This exception might arise on account of what have become known as, “special circumstances”. If there are such special circumstances the view might be legitimately taken that it is more appropriate to apply an objective approach to see what meaning the speaker might reasonably have intended to attach to the words spoken. The case of Sovereign House Security Services Ltd v Savage (per May LJ) illustrates this approach. The tribunal shall return to this further below.

24. For the respondent, it has been submitted that the fundamental question for the tribunal to consider is, who really ended the employment relationship? Citing Sovereign House Security Services Ltd v Savage the respondent’s representative has submitted that if words used by an employee are unambiguous and are so understood by his employer, then no question as to what a reasonable employer would have understood arises and the employee’s unrevealed intention is not relevant. It is further submitted that the exception to any rule should only be applied in highly exceptional circumstances (see Greater Glasgow Health Board v Mackay). The principle submitted is that the employer is entitled on a subjective test to accept the natural meaning of the words used and to act in accepting a resignation, the exception being set out in orbiter dicta in the case of Iris Maida Sothern v Franks Charlesly & Co. The respondent's submission continues that, even if some ambiguity were seen to exist within the words used, the claimant's action in refusing a work instruction, leaving the workplace and in not contacting the respondent until the following Tuesday, taken together with the denial of using the words such as were reported by Daniel O’Boyle, would satisfy the relevant considerations in regard to the objective test. The respondent should accordingly be entitled to accept the resignation, upon any objective test. If it is argued that words were used in the heat of the moment, notwithstanding that they are unambiguous, not only were any words not withdrawn almost immediately, but there has been a persistent denial that the words were used in the first place, on the claimant's part.

25. For the claimant, it has been submitted that the tribunal is required on foot of the authorities to take a mixed subjective and objective approach to the matter. The submission for the claimant emphasises that there are indeed “special circumstances” existing, and in written submissions the claimant's representative has listed a number of these, including that words were stated by Daniel O'Boyle “in the heat of the moment”. In regard to this particular submission the tribunal encounters a difficulty in the claimant’s representative’s submission. The “heat of the moment” issue appears to form the most significant ground of the claimant’s “special circumstances” argument, being first mentioned. The tribunal nonetheless notes that the claimant’s case from the outset has been entirely grounded upon the contention that the claimant did not utter words of resignation at all. The submission is that, “….words were said in the heat of the moment between (the tribunal's emphasis) Daniel O'Boyle and the claimant”. The claimant's case has always been to reject the suggestion that the claimant stated the words attributed to him by the respondent and that, indeed, it was Daniel O'Boyle who referred to the “P45”. The tribunal further notes that “heat of the moment” is commonly suggested in the context of words of resignation (be they unambiguous or ambiguous) uttered by an employee. It is commonly submitted that these words were uttered in the heat of the moment and that special circumstances arise to permit the conclusion to be drawn that the true intention of the employee was not to resign. In contrast, in this matter the claimant’s contention has always been that he uttered no such words of resignation. It is not therefore open to the claimant’s case to argue “heat of the moment special circumstances”, for there has been maintained a denial that the claimant uttered any words of resignation. The tribunal however has found that unambiguous words of resignation were used by the claimant. There was no endeavour to withdraw such words of resignation for the reason that the claimant has not accepted that he uttered such words in the first place.

26. The other special circumstances referred to on behalf of the claimant in submissions include the claimant's non-confrontational character, the fact that the claimant was suffering from a painful back injury, that Daniel O'Boyle admitted that he did not accept the claimant's resignation and the allegation that the respondent was eager to be rid of the claimant because of his ongoing back problems. In regard to that latter contention, the tribunal notes that this allegation of eagerness to be rid of the claimant has been denied in the respondent's evidence and submissions and indeed the respondent's witnesses have confirmed that the claimant was generally regarded as being a good and conscientious worker and the tribunal's attention has been drawn to the fact that the claimant was being trained at the time by the respondent in welding tasks, with a view to the future.

27. Examining the submissions, the tribunal is more persuaded by the case made on behalf of the respondent upon both the facts and the law. The authorities cited in argument are persuasive only and not binding upon this tribunal and the tribunal’s attention has not been drawn to any binding authorities. The respondent’s case is that unambiguous words of resignation were spoken by the claimant to Daniel O'Boyle. Daniel O'Boyle forthwith conveyed these words of resignation to Ruairi O’Boyle who was in the position of decision maker, as manager. Ruairi O’Boyle was entitled to construe these words at face value and had no reason to doubt what was being reported to him by Daniel O'Boyle in the immediate aftermath of these events. Ruairi O’Boyle, as manager, was compelled for good and sound business reasons, having encountered the situation of an employee who had unambiguously resigned from employment, to engage forthwith a suitable employee in order to fulfil contracts and orders and to avoid financial penalties and other detriment to the business of the respondent. He therefore took an action to engage a replacement employee, Mr Sloan, which was consistent with acceptance of the claimant’s repudiation of contract. Applying the subjective test, Ruairi O’Boyle on behalf of the respondent was entitled to construe these words at face value, as he did. Applying the objective test, insofar as case law might suggest that this is appropriate, the tribunal is not persuaded that there were special circumstances, upon the facts of the matter, which the employer on these particular facts ought to have been obliged properly to have taken the view that the words uttered by the employee were not meant to be taken seriously or were not properly to be construed at face value. The tribunal notes that the exceptionality test is only to be applied in highly exceptional circumstances (see Greater Glasgow Health Board v Mackay) and in such particular circumstances where this will be justified. Such circumstances do not exist in this case to the extent of imposing such a requirement upon the employer.

28. Looking at all of this, there has been a clear and express resignation uttered by the employee. That has been accepted at face value by the employer and thus the contract has been brought to an end. The tribunal finds accordingly that there was no dismissal of the claimant by the respondent. Therefore there can be no unfair dismissal case sustained by the claimant on the facts of the matter.

29. That being so, the claimant’s claim of unfair dismissal is dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: 12 and 13 April, 24 and 31 May, and 1 June 2011, Belfast.

Date decision recorded in register and issued to parties: