Alison Wilson v. Colin Patton, t/a Market Fresh Fruit and Veg - (11 Jun 2018)

There was no requirement for any investigation or time to let the dust to settle before reaching a concluded view

Service

The Claimant's case was that, she was dismissed on or about 10th August, 2017 from her employment as a counter assistant at one of the Respondent's fruit and vegetable shops, where she had worked since July 2013. The central point to be resolved is which party ended the contract. In the current case, the Claimant asserts that, it was the Respondent who terminated the contract of employment, by virtue of improperly relying upon her ambiguous words, without making any enquiry from her as to what the true position was. The Tribunal does not accept that, there was any reference by her on 31st July, 2017 to illness which might have put the respondent on notice that her departure might have been for any reason other than resignation.

The Tribunal considered that, the Claimant's evidence was substantially less credible than that on behalf of the Respondent. Her evidence as to her sickness on Saturday 29th July, 2017 was not supported by any medical evidence, and she in fact gave clear evidence that, her self-diagnosis of a virus was completely at odds with that of her doctor's professional diagnosis.

In the case of Kwik-Fit (GB) Ltd -v- Lineham, a failure by an employer to investigate facts which might give rise to ambiguity in a purported resignation might render invalid any action or reliance by the employer upon such an interpretation.

In the terms of Gale -v- Gilbert, "It is of course well known that the undisclosed intention of a person using language whether orally or in writing as to its intended meaning is not properly to be taken into account in concluding what its true meaning is. That has to be decided from the language used and from the circumstances in which it was used". The tribunal concluded that, whatever the claimant's actual motive, her language and actions on 31st July, 2017 were sufficiently clear and unambiguous to justify the interpretation and consequent action of the Respondent.

The Tribunal concluded that there had been no formal "cooling-off" period by the Respondent; rather, Colin Patton simply waited to see what happened in the next few days. The Tribunal unanimously found that, within the terms of Kwik-Fit, there was no requirement for any investigation or time to let the dust to settle before reaching a concluded view, since the Respondent reasonably concluded from the objective evidence that the Claimant had in fact resigned on 31st July, 2017.

That period of time also gave the claimant ample chance to fill the vacuum by making a meaningful, or any, effort to re-establish contact with the respondent. She did not take it, which reinforces the view that, either she did not want to, or that she was waiting for the Respondent to make the first move, which it was under no obligation to do in view of its interpretation of her language and conduct.

The tribunal is unanimously of the view that the Respondent on 31st July, 2017 genuinely and reasonably was entitled to, and did, interpret the claimant's words and conduct as amounting to her resignation, effective from that date. The tribunal is also of the view that, whatever her ultimate goal was, she used language and conduct calculated to induce the respondent to forming that view. She therefore was not dismissed. The claimant has therefore failed to satisfy the tribunal that, she was unfairly dismissed, and her claim is dismissed in its entirety.

Tags : CONDUCT DISMISSAL LEGALITY