Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 1418_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1418/13

CLAIMANT: Romanas Mosejevas

RESPONDENT: G T Exhausts (NI) Limited

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 S Pyper

Mr J Welsh

Appearances:

The claimant appeared at the hearing with the assistance of a Lithuanian interpreter and was represented at the hearing by Ms S Cherry, voluntary representative.

The respondent appeared and was represented by Mr A Mills of ELAS.

The Claim

1. The claim was a claim of unfair dismissal.

The Issues

2. The primary issue to be determined by the tribunal was whether the claimant was dismissed by the respondent on 30 April 2013. If so, it was conceded by the respondent that the dismissal was procedurally unfair. Accordingly, if the tribunal determined that the claimant had been dismissed, it would then have to determine the appropriate remedy.

Identity of the respondent

3. At the beginning of the hearing, the Chairman raised the issue of the correct identity of the respondent. It was agreed by both parties that the only correct respondent to the claim was G T Exhausts (NI) Limited. Mr Gilbert Tunney was therefore dismissed as a respondent to the claim and the title of the proceedings was amended accordingly.

Sources of Evidence

4. The tribunal received written witness statements from the claimant and from Mr Nicholas Abraham and Mrs Joelene Abraham of the respondent company and each of these witnesses were cross-examined at the hearing.

Contentions of the Parties

5. The claimant’s representative contended that the claimant had been directly dismissed by Mr Gilbert Tunney of the respondent on 30 April 2013. She argued that such dismissal was unfair and the claimant should be awarded substantial compensation.

6. The respondent contended that the claimant had not been dismissed by Mr Tunney and that he had effectively resigned from his employment. In the alternative, should the tribunal not accept this primary contention, the respondent conceded that dismissal was procedurally, but not substantively, unfair. In relation to remedy, the respondent’s representative argued for a significant reduction in any compensation to be awarded to the claimant on the grounds that the claimant is likely to have been dismissed in any event had a fair procedure been followed.

Facts of the Case

7. Having considered the evidence of the claimant and the respondent’s witnesses, the documents referred to in evidence and the submissions made by the parties, the tribunal found the following relevant facts:-

8. The claimant was employed by the respondent as a welder from 23 October 2009 to 30 April 2013. The respondent company is a manufacturer and distributor of vehicle exhaust emission control and silencer products. The respondent has a number of sites in Northern Ireland, including the factory in Enniskillen where the claimant was employed.

9. On 26 March 2013, the claimant attended a disciplinary hearing following which he received a written warning dated 27 March 2013 for “health and safety issues, attitudes towards management, poor attendance and failing to report non attendance as per your terms and conditions of employment”. The improvement expected included “you are to comply with the correct reporting procedures, failure to do so will result in further disciplinary action”.

10. On Monday 29 April 2013, the claimant was absent from work. He did not make actual contact with the respondent to report his absence.

11. The claimant attended work on 30 April 2013 to start his shift at approximately 6.30 am. He went to the area known as the outer office or production office to collect his clock card. As was the usual practice when an employee was absent on the first day of the working week, the claimant’s clock card was not immediately available for use.

12. There was a discussion between the claimant and Nicholas Abraham the Production Manager of the respondent. Mr Abraham asked the claimant about his absence the previous day. This discussion became tense, if not heated. The claimant wrote his own clock card and clocked in for the day. Mr Abraham told the claimant that he was not to start work and he was to wait for the HR manager to arrive. The HR manager was Mrs Joelene Abraham, wife of Nicolas Abraham. She generally did not arrive into the factory until after 9 am.

13. The claimant proceeded on to the factory floor to look for work. He discovered that he needed new gloves. The claimant then returned to the production office to ask for new gloves. This discussion also became heated and the claimant was angry. Tempers on both sides had become frayed. The claimant touched Mr Abraham on the arm. Mr Abraham objected to this.

14. The claimant again returned to the factory floor. Mr Gilbert Tunney the founder of the respondent approached the claimant. He swore at the claimant and told him to “Go home”. The claimant asked “go home for today or for all time”. Mr Tunney did not reply.

15. The claimant then gathered up his tools which would normally be left in the workplace. He returned to the office and told Mr Abraham what had happened between him and Mr Tunney. The claimant asked for his money. Mr Abraham told the claimant that “Mr Tunney was nothing” in the company. The claimant then went to the canteen, changed and collected his personal belongings.

16. The claimant then returned to the office once more. Mr Tunney and Mr Abraham were both in the office. The claimant again demanded his money. He was swearing. Mr Tunney swore at the claimant and told him that he would get his money at the end of the week. He again told the claimant to “go home”. The claimant opened his jacket and told Mr Tunney and Mr Abraham that he had been recording what had been said. The claimant had not in fact been recording any of what had transpired. The claimant then left the factory.

17. When Mrs Abraham HR Manager arrived at the factory later in the morning, she was informed by Mr Abraham what had happened. She asked those involved to make statements regarding the events of the morning.

18. The claimant returned to the factory at approximately 12 pm to meet a colleague. Mrs Abraham spoke to the claimant. The claimant was reluctant to speak to her, but he told Mrs Abraham what had happened that morning. Mrs Abraham asked the claimant to come with her to the office for a discussion. He refused saying that he wanted to take advice from the CAB. The claimant told Mrs Abraham that he was happy to be free for the day. He also said that he did not want to work for the respondent. The claimant then left the factory. He did not return thereafter.

19. On 30 April 2013, Mrs Abraham wrote to the claimant. In this letter she said, “I understood you to tell me in no uncertain terms that you did not intend to return to the factory and that you wished to be given your money. I understand from this that you were resigning with immediate effect. …… In view of your behaviour at the factory this morning if you have not resigned please inform me by return and I will arrange for the Disciplinary Procedures to be put in place……..”

20. The claimant attended with the CAB and took advice. He wrote to the respondent by letter dated 8 May 2013 which letter was written with the assistance of the CAB adviser. This letter stated “I wish to raise a grievance for a constructive unfair dismissal. I was unfairly treated by Mr Gilbert who called me words and said to me to go home. I have asked about my money and he used a very strong bad language towards me. This took place at the end of April 2013. I was forced to leave the job and I’m entitled to 3 weeks gross redundancy payment due to the breach of trust. …….”. The letter then goes on to set out the legal basis for a claim of constructive unfair dismissal.

21. By letter dated 22 May 2013, the claimant was invited to attend a grievance hearing. He was informed of his right to be accompanied by a work colleague or a trade union representative. The hearing was to be conducted by Joelene Abraham. This letter also stated “In the letter dated 30 April from GT Exhaust to you I advised that we had accepted your resignation and if you had not resigned then to inform me. I now take it from your letter of 8 May 2013 that you have resigned and wish to discuss constructive dismissal as per your grievance. This will be considered at the meeting as discussed above.”

22. The grievance hearing took place on 4 June 2013. In the course of the meeting, the claimant indicated that he believed he had been dismissed.

23. By letter dated 10 June, Mrs Abraham confirmed the outcome of the hearing. In summary, she confirmed that it was accepted that Mr Tunney had shouted at the claimant and told him to go home. However, Mrs Abraham said that this was in response to the claimant being verbally abusive and assaulting Mr Abraham. In relation to the claimant’s alleged dismissal from the company, Mrs Abraham’s conclusion was that the claimant had resigned on 30 April 2013. The claimant was informed of his right of appeal.

24. By letter dated 20 June 2013, the claimant appealed the outcome of the grievance hearing. He asked that he should be allowed to be accompanied by a representative of his choosing or at the very least a translator. The appeal hearing took place on 6 September 2013. The hearing was conducted by Claire Napier, a director of the respondent and sister of Joelene Abraham. The claimant was accompanied by his partner who acted as interpreter.

25. The outcome of the appeal was confirmed by letter dated 9 October 2013. Mrs Napier upheld the outcome of the original grievance hearing.

26. Following the date of termination of his employment with the respondent, the claimant applied for numerous alternative jobs. The claimant was qualified as a welder and as a motor mechanic and he applied for jobs in both these fields. In addition, he submitted his cv to various employment agencies. The claimant also explored the possibility of becoming self-employed. The claimant carried out some work on the cars of his friends and family members as a favour for them. By the date of the hearing, the claimant had not obtained alternative employment.

Statement of Law

27. 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.”

28. Where the case is made that words spoken by the employer constitute words of dismissal, Harvey refers to a number of cases which touch on this point. The following propositions are drawn from the cases:

“1) The intention of the speaker is not the relevant test….. As Arnold J commented in the case 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 surrounding circumstances in which it was used.”

2) If the words used by the speaker are on their face ambiguous, then the test is how the words would have been understood by a reasonable listener. … In other words, the test is objective rather than subjective and the question whether or not there has been a dismissal or resignation must be considered in the light of all the surrounding circumstances. …In J & J Stern v Simpson 1983 IRLR 52, the EAT preferred to state the test as being “to construe the words in all the circumstances of the case in order to decide whether or not there has been a dismissal”.

29. Harvey summarises the legal position on this question as follows:-

“The preponderance of authority then is in favour of the objective view, ie that the question to be answered is how a reasonable listener would have construed the words used in all the circumstances of the case, and that this is the test whether the words used are ambiguous or not.”

Conclusions

30. In this case, there was a considerable amount of dispute between the parties in relation to various matters of evidence. However, as far as the most crucial matters of fact were concerned, there was a measure of agreement between the parties. It was agreed by both parties that Mr Tunney had told the claimant to “go home” and that he had sworn at the claimant. It was also accepted by both parties that the claimant had then asked if this meant go home for now or go home for all time. Likewise, it was agreed that Mr Abraham had told the claimant something to the effect that “Gilbert (ie Mr Tunney) was nothing” in the company.

31. After the various heated exchanges on 30 April 2013, the claimant returned to the factory around lunch-time and when he saw Mrs Abraham, he told her that he was happy to be free for the day and he did not want to work for the respondent any longer as he was treated badly. Mrs Abraham then wrote to the claimant that day saying that she believed that he had resigned, but if not, then the claimant should inform her by return in which event, the disciplinary procedures would be put in place.

32. Having received that letter, the claimant, with the help of a CAB adviser, wrote to the respondent saying that he wanted to raise a grievance of constructive unfair dismissal. He complained that Mr Tunney had used bad words to him and had treated him badly.

33. It was not until the grievance hearing on 4 June, more than a month after 30 April, that the claimant first alleged that he had been dismissed by Mr Tunney.

34. Essentially, the case made on behalf of the claimant focused on the words used by Mr Tunney, namely “go home”. The claimant’s representative described him as “the patriarch of the company”. It was argued that these words, along with a failure to clarify those words when it should have been clear to the respondent that the claimant believed he had been dismissed, amounted to a dismissal.

35. In construing these words, the tribunal applied the legal test outlined at paragraphs 26 to 28 above, that is how a reasonable listener would have construed the words used in all the circumstances of the case. In this case, the tribunal believes that the claimant correctly identified at the time that those words could have meant either “go home for now” or effectively “go home and never come back”. Therefore, immediately after the words were spoken, the claimant was not sure that he had been dismissed and he sought clarification.

36. It was for the tribunal to determine how a reasonable listener would have construed the words in question. In doing so, the tribunal took account of the surrounding circumstances. These words were used after a heated altercation between the claimant and Mr Abraham and Mr Tunney. As the claimant himself recognised at the time, one possible interpretation was that Mr Tunney’s words simply meant that the claimant should be removed from the situation which had become very tense. In response to the claimant’s request for clarification, Mr Abraham played down the authority of Mr Tunney. Later in the day, Mrs Abraham still wanted to take the opportunity to have a discussion with the claimant when he returned to the factory.

37. The claimant was then given the opportunity, having received Mrs Abraham’s letter dated 30 April to clarify that he had not in fact resigned, but rather he believed he had been dismissed by Mr Tunney. The claimant did not take this opportunity to clarify his position. Instead, when he wrote to the respondent on 8 May, with the assistance of a CAB adviser, the claimant’s position was that he had been constructively dismissed, in other words that he had resigned in response to the respondent’s breach.

38. In all the circumstances, and on balance, the tribunal has concluded that it is more likely that a reasonable listener would have interpreted the words “go home” as simply “go home now”. The tribunal is satisfied that nothing that was said or done by the respondent on 30 April either before or after these words were spoken would have led the reasonable listener or on-looker to interpret these words in any different manner meaning that the claimant was dismissed.

39. In the course of the hearing, the claimant’s representative argued that the claimant’s English was limited and it was sometimes difficult for him to understand what the respondent’s managers were saying to him. On the basis of the evidence and the tribunal’s own observations during the hearing, the tribunal was satisfied that the claimant did understand the words in question and indeed he had correctly identified at the time the two possible interpretations of these words.

40. In light of these conclusions, the tribunal has determined that the claimant has not discharged the burden on him to prove that he was dismissed by the respondent.

41. Accordingly, the tribunal has concluded that the claimant was not dismissed by the respondent and the claimant’s claim of unfair dismissal is dismissed in its entirety.

Chairman:

Date and place of hearing: 7 and 22 November, Belfast.

Date decision recorded in register and issued to parties: