judicial greffe


Jersey Employment and Discrimination Tribunal


Employment (Jersey) Law 2003

NOTIFICATION OF THE TRIBUNAL’S JUDGMENT

 

Reference:

[2017]TRE133                                                  

 

 

Applicant:

Mrs Yulia Trenouth-Wood

Respondent:

Euraco Group Limited

Hearing Date:

22 and 23 May 2017

Before:

Advocate Mike Preston, Deputy Chairman

Mrs Louise Cram and Mr Mike Baudains, Panel Members

 

 

 

For the Applicant:

The Applicant in person, assisted by a translator

For the Respondent:

Mr Jake Shaw, Director

 

 

 

 

 

 

 

 

 

 

 

 

 

THE TRIBUNAL’S JUDGMENT

Introduction

1.    This case involves a claim for constructive unfair dismissal and a claim for wrongful dismissal.

 

2.    The Respondent is a company incorporated in Jersey engaged as a multi-platform seller of consumer products. The Respondent employs 10 people based in Jersey.

 

3.    The Applicant was employed by the Respondent on 15 July 2014. At the outset, she was employed as an “eCommerce Sales Buyer” but she was promoted to the role of “Purchasing Director” on 25 February 2015. This was a job title as opposed to an appointment as a Director of the Respondent.

 

4.    At an earlier Interim Hearing, a differently constituted Tribunal, by its Judgement dated 2 December 2016, dismissed various claims made by the Applicant on the basis that those claims had no prospect of success. The only claims that survived the Interim Hearing were those for constructive unfair dismissal and wrongful dismissal. Following the Interim Hearing, that Tribunal found as a matter of fact that the effective date of termination of the Applicant’s employment was 12 October 2015.

 

5.    There was no dispute that the Applicant had been employed for more than one year but less than two and so her claim for compensation for constructive unfair dismissal was for 8 weeks of her salary. The Respondent invited the Tribunal to exercise its discretion and to reduce any award of compensation under Article 77F of the Employment (Jersey) Law 2003 (the “Law”) in the event that it found that the Applicant was entitled to compensation. Further, the Applicant’s notice period was 1 month and so her claim for wrongful dismissal was for 1 months’ pay.

The Evidence

 

6.    The Tribunal heard evidence from the Applicant on her own behalf and from her husband, Mr Roger Trenouth-Wood. For the Respondent, the Tribunal heard from Mr Jacob Shaw, Mr Jason Layton, Mr Ian Cardwell and Mr David Horman. A further witness for the Respondent (Mr Zibby Kusal) provided a witness statement but did not attend to give evidence and be cross-examined. As a consequence, the Tribunal did not give any weight to that witness statement. The Tribunal considered all of the evidence that it heard and all of the documents to which reference was made either during the hearing or those to which reference was made in the witness statements (save for that of Mr Kusal). It is not possible to refer in this Judgment to all of the evidence that was considered and so what follows is of necessity a summary of the evidence.

 

Constructive Unfair Dismissal

 

7.    Insofar as concerned the claim for constructive unfair dismissal, the Applicant’s case was that she was forced to resign on 6 October 2015 as a consequence of the actions of Mr Shaw and Mr Layton. It appeared to the Tribunal that those actions fell into 4 categories or issues, which will be dealt with in turn;

 

a.      The Cardwell Issue;

b.      The Time-off Issue;

c.       The Threats Issue;

d.     The Office Facilities Issue.

 

The Applicant claimed that the issues taken independently or cumulatively amounted to repudiatory breaches of her contract giving rise to an environment that was so unpleasant that she was forced to resign.

 

8.    The Cardwell Issue - Ian Cardwell gave evidence before the Tribunal and the Tribunal found him to be a reliable and truthful witness. However, this issue did not directly involve him.  The Applicant claimed that Mr Shaw forced her to act in a way that she considered immoral towards Mr Cardwell and his business, Tri-Ventures Limited (“Tri-Ventures”).   There was a relationship akin to a partnership that existed between the Respondent and Tri-Ventures. It was the Applicant’s case that Mr Cardwell was constantly denigrated to her by Mr Shaw and that Mr Shaw was acting in a way that would surreptitiously remove business from Tri-Ventures to the benefit of the Respondent. The Applicant was expected and indeed required to play her part in this intrigue.

 

9.    The Applicant’s evidence was that she was forced by Mr Shaw to reduce purchase orders so as to further Mr Shaw’s plan to harm Tri-Ventures and to benefit the Respondent. It was the Applicant’s case that this put her in an untenable position vis-à-vis Mr Cardwell, which caused her a great deal of stress and made the environment in which she was forced to work deeply unpleasant for her.

 

10. The Tribunal was shown screen shots of Skype conversations between Mr Shaw and the Applicant that showed communications between the two in April, May, June, July 2015 and one message from the Applicant to Mr Shaw dated 19 September 2015. It was accepted by Mr Shaw that relations between himself and Mr Cardwell were not easy and it was his plan to move his business away from the partnership that existed with Tri-Ventures. For Mr Shaw, there was nothing unusual about this and the Applicant was never asked to do anything illegal or immoral as she claimed. The Tribunal considered all of the screen shots of the Skype conversations between the Applicant and Mr Shaw, all of which were made available by the Applicant. It was her case that there were other Skype conversations between them but she had not been able to access them as they were on the Respondent’s system and the Respondent, in the shape of Mr Shaw and Mr Layton had not disclosed this evidence. Mr Shaw denied this serious allegation and the Tribunal found no evidence supporting the Applicant’s claim. Certain of these screen shots in the early part of 2015 supported the assertion that Mr Shaw no longer wanted to be involved with Mr Cardwell but this was accepted and so not in dispute. What was in dispute was that the actions of Mr Shaw in involving the Applicant in such matters, amounted to a repudiatory breach of the Applicant’s contract of employment.

 

11. As indicated above, the Applicant resigned on 6 October 2015. It was of note that the Tribunal was shown a screen shot of a Skype conversation between Mr Shaw and the Applicant on 16 May 2015 in which she stated that the “payment function must be taken from [Mr Cardwell] as soon as possible. He makes me feel very….”. Despite the Tribunal requesting a full copy of that message, it was no longer possible to provide it. On any reading, even this shortened version of the message was not supportive of the Applicant’s claim. On the contrary, it supported the view that the Applicant was working with Mr Shaw in his attempts to extricate the Respondent from the partnership with Tri-Ventures and that she did not hold Mr Cardwell in high regard.

 

12. The last screen shot presented by the Applicant showed a message from her to Mr Shaw dated 19 September 2015 in which she enquired about expanding her role within the Respondent. It read as follows;

 

“Hi Jake, Sorry for disturbing you at the weekend. I was thinking about the business. I would like to participate in Digital Marketing job along with Purchasing & Business development and System development if you don’t mind. I would like to work with our web team and make the business grow significantly. Digital marketing has always been very interested for me and connected with my speciality well. We can discuss this next week if it’s OK. Please, let me know what do you think.”[sic]

 

 

13. Mr Shaw’s evidence in respect to this screen shot was that it showed that far from being made to work in an environment that was impossible, the Applicant was seeking greater involvement in the business towards the end of  September, remembering that her resignation was in early October.  As it happened, Mr Shaw did not want the Applicant in the “Digital Marketing” role and that application was not progressed.

 

14. In fact, it was the Respondent’s case before the Tribunal that the Applicant had formulated a plan to leave the Respondent after her attempt to gain an equity stake in the business had been rejected by Mr Shaw.  Therefore, the application for the role in “Digital Marketing” had a more sinister overtone. After the Applicant had left the Respondent’s employment, Mr Shaw discovered that she had applied to work for a competitor as a “Purchasing Officer” by email dated 4 September 2015 and wrote to that competitor on 2 October 2015 thanking them for the job offer and stating that she was “delighted to accept it”.  Mr Shaw was now of the view that the earlier request regarding the “Digital Marketing” role was an attempt by the Applicant to gain a role in the Respondent’s organisation which would enable her to access more information about the business and then to take that information and work for that competitor. This view was only strengthened by the fact that the Applicant did email herself a great deal of confidential information as Mr Shaw discovered on 28 September 2015 (referred to below at paragraph 23).

 

15. The Applicant’s position was that the “Digital Marketing” application was an entirely legitimate attempt to widen her role in the business and denied that it had anything to do with acting against the Respondent. The fact that she had applied for another job was coincidental and she denied that she had ever intended to use or used confidential information in the way that had been suggested.  Whilst she had written accepting the other job on 2 October 2015 she did not sign a contract until 22 October 2015 and that was when she formally accepted the role.  It was also her position that it had been Mr Shaw who had wanted her to invest in the Respondent rather than the other way round.

 

16. The Tribunal noted that the message of 19 September was hardly indicative of an employee who was being subjected to such bad treatment that she was obliged to resign.  In fact, it appeared to show quite the opposite.

 

 

17. The Time-off Issue – it was the Applicant’s case that from the beginning of her employment Mr Shaw and Mr Layton had insisted that she do much of her work from home. It was her case that she was promised that she would be given time off work in lieu of overtime that she worked at home. In June 2015, the Applicant was diagnosed with a serious illness. In the interests of the Applicant’s privacy there is no need in this Judgment to reveal the nature of that illness. The Applicant’s evidence was that in July 2015, she had informed Mr Shaw that she would need time off work for medical reasons and told him that she would need to use some of the time off that she had “earned” by virtue of having worked overtime. This was in accordance with the promise referred to above.

 

18. The Applicant claimed that rather than honour the promise in respect of overtime, Mr Shaw lied and said that there had been no such promise. The Applicant was outraged by this dishonesty and it was another of the reasons that she relied upon in deciding to resign. She said that she was forced to take full days off to attend medical appointments, which in itself was a cause of significant stress to her.

 

19. Both Mr Shaw and Mr Layton gave evidence in respect of this issue. Mr Shaw emphasised that his relationship with the Applicant had always been fine. He did describe the Applicant as somewhat volatile.  In particular, he spoke of an incident on 2 September 2015 when the Applicant responded to some advice that he had given her about dealing with employees in India by exploding in a rage. He said that he had always been supportive of her, in particular with regard to her illness. He said that there had been no such promise regarding time in lieu but, in any event, the issue of time off had not arisen as had been suggested by the Applicant. In fact, he had received an email from the Applicant on 28 September 2015 regarding time off and it was only then that he had become suspicious of her actions.

 

20. The email referred to a telephone conversation that had taken place the week before and asked Mr Shaw to confirm the days that he “required” the Applicant to take as “full holidays instead of the partial work from office and home?” The email concluded that the Applicant agreed “with your decision and take these full days off as holiday.” It was Mr Shaw’s evidence that he thought that in some way the Applicant was trying to trap him as there was no truth whatsoever in her suggestion that he had required her to do any such thing. Mr Shaw replied that there were no days that she had been required to take off as full days as opposed to partial days.

 

21. That evening Mr Shaw and Mr Layton received an email from Mr Trenouth-Wood, which is now set out in full as it appeared, as follows;

 

Subject: You pair of disgusting PIGS

You are a pair of disgusting PIGS, how dare you treat my wife in this way, I have said that I wouldn’t get involved but you have now given me no choice, if my wife comes home again up-set because of your nasty aggressive actions and bad attitude towards her I will do the same to you and yours!!!!! Not a Threat a Promises!

My wife over the last 2 months has come home on many occasions, upset, distressed and completely distraught, as well you know, this in her current medical condition! I said to her put the things down in writing that you are un-happy about, as you asked her to do, and sort them out, this hasn’t happened! I find that she started too, but is frightened to give it to you, Frightened, she lives in fear of you, what do you think you are playing at!!!! Well I am not in fear of you, its her job and although this has nothing to do with me, the actions you have carried out towards her, this makes it my job, so if you don’t sort this out, I will!!!!! For your action, please see below my wife’s unfinished letter to you, as I have said she wont send it, Yulia doesn’t know I am sending this to you, but I will as you need to sort this out before things get-out-of-hand!!! Please give me the email address of the other Director at the premises so that I can tell him the same? I make a good friend but a lousy enemy, after these actions and abuse towards my wife, you are certainly not my friend!!

Yes I’m very angry!!” [sic]

 

22. The email then attached a long email from the Applicant in which she set out various complaints about her treatment by the Respondent. It was noted that whilst the “letter” was stated to be “unfinished” it appeared to be finished and there was no mention in it of what has been termed in this Judgment as the Cardwell Issue.

 

23. The next day (29 September 2015) Mr Shaw discussed the position with Mr Layton and, as he was very concerned at what was happening, he conducted a review of the Applicant’s email. His statement was that “to my horror I had found that she had emailed herself the entire product detail and the supplier database from the company email to her personal inbox and entire blueprint of the business.”

 

24. Mr Layton supported the evidence of Mr Shaw. There had been no promise as alleged by the Applicant with regard to time-off. There had been no breach of contract in this regard and the approach of Mr Trenouth-Wood was a cause for significant concern.

 

25. The Threats Issue – it was the Applicant’s case that Mr Shaw was “always” threatening her by stating that if she ever worked against him, he would destroy her life and that of her family. The Applicant used the example of a former employee of the Respondent who it was claimed had brought an unsuccessful claim to the Tribunal. It was the Applicant’s evidence that Mr Shaw had said words to the effect that if anyone tried that against him in future, they would be unemployed for the rest of their life. This was a very serious allegation and according to the Applicant, it caused her to feel very intimidated. This behaviour (if true) amounted to a repudiatory breach of contract and it seemed to the Tribunal that it was an allegation of a continuing course of conduct. According to the Applicant, Mr Shaw bullied and harassed her from at least July 2015 onwards, it seemed as part of a campaign to force her to leave the Respondent’s employment. This was something that became worse after the Applicant was diagnosed with a serious illness in July 2015.

 

26. These allegations were denied by Mr Shaw. It was his position that he was always supportive of the Applicant and that this allegation was just not true.

 

27. The Office Facilities Issue – it was the Applicant’s case that her working conditions at the office of the Respondent were so bad that the Respondent breached her contract by forcing her to work there. These breaches were repudiatory and took place from the very start of her employment. The Applicant’s complaints centred on the lack of adequate lighting and the lack of adequate heating.

 

28. The allegations were denied. In any event, the complaint regarding heating in the office arose in February 2015 and that concerning the lighting in July 2015.

 

Wrongful Dismissal

 

29. As to the claim for wrongful dismissal, it was the Applicant’s case that she gave her notice on 6 October 2015 at a time when she knew that both Mr Shaw and Mr Layton were away from the office. This was she said because she was so intimidated by them. The Respondent wrote to the Applicant on 8 October 2015 stating that she was not required to attend work during the course of her one month notice period but also seeking confirmations with regard to the information that it was alleged had been wrongly taken by the Applicant. The Applicant’s husband replied by email dated 12 October 2015, which email was headed “Notice of Termination of Contract and details of her Legal Representative”.

 

30. At the Interim Hearing referred to above, the differently constituted Tribunal found (paragraphs 24 to 32 of Judgment dated 2 December 2016) that the Applicant’s Effective Date of Termination was 12 October 2015, the date of Mr Trenouth-Wood’s email. It was the earlier Tribunal’s finding that this email signalled the fact that the Applicant was no longer available for work.

 

The Law

 

31. Article 61 of the Law states that an employee has the right not to be unfairly dismissed. Article 62(1)(c) of the Law provides that an employee is dismissed if, inter alia, “the employee terminates the contract under which he or she is employed (with or without notice) in circumstances in which the employee is entitled to terminate it without notice by reason of the employer’s conduct”.  This type of situation is a constructive dismissal.

 

32. In the case of Carratu v United Fashions Limited (110/2011) the Chairman of the Jersey Employment Tribunal set out the four basic ingredients which must be present in a case of constructive dismissal:

 

(i)            The employer must be in breach of a term of the contract of employment;

(ii)          The breach must be fundamental i.e. a repudiatory breach;

(iii)         The resignation must be a response to that breach; and

(iv)         The employee must not delay too long in resigning following the breach.     If he or she does delay too long, then the Tribunal may find that the breach has been waived.

33. In addition to the express terms which may be contained in the contract of employment there is a duty upon an employer not to destroy or seriously damage the relationship of trust and confidence that exists between an employer and their employee – see for example the case of Mahmud and Malik v Bank of Credit and Commercial International SA [1997] ICR 606.  This implied term was considered in Beillard v States Employment Board (JET 67/2001). The Respondent’s breach of the implied duty must go to the root of the contract. The test of whether there has been a fundamental breach is an objective one.

 

34. If there is a dismissal, Article 64 of the Law applies.  The Tribunal must consider whether the employer acted reasonably in all the circumstances of the case, taking into account its size and the administrative resources available to it.  The Tribunal must apply the principles of equity, that is, fairness, and consider the substantial merits of the case.  If the Applicant is correct in his arguments, it was the conduct of the employer that led to the resignation.  The concept of ‘reasonableness’ in a constructive unfair dismissal case differs from a classic case where the employee is dismissed and has not resigned.  In a constructive unfair dismissal case the issue of reasonableness is reversed and becomes an objective view of the reasonableness of the employer’s actions which led to the resignation.

 

35. In the case of Carratu the Court also noted (at paragraph 23): “In the recent case of Amanda Bisson v States Employment Board, above, which involved a complaint that the implied duty of an employer to maintain the trust and confidence of its employees had been breached, the Tribunal applied the English Court of Appeal decision of Tullett Prebon plc & Others v BGC Brokers LP & Others [2011] IRLR 420 and looked to the intention of the employer when acting as it did.  Tullett Prebon extended the assessment of a repudiatory breach of contract to include an objective assessment by the Employment Tribunal of the motive or intentions of the employer (the alleged contract breaker) and found that the question of whether there has been a repudiatory breach of the implied duty of trust and confidence ‘is a highly context specific question’.  The Court of Appeal also confirmed the legal test of a repudiatory breach of this implied term as being, ‘whether, looking at all the circumstances objectively, that it is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract’ (Eminence Property Developments Limited v Heaney 2010 EWCA Civ 1168).”

 

36. As to Article 77F of the Law, the Tribunal may reduce any award made where it considers that the conduct of an applicant before the dismissal that directly contributed to that dismissal was such that reduction of the award would be just and equitable.

 

37. The Tribunal is here also dealing with a claim for wrongful dismissal which unlike the statutory claim for unfair dismissal is a contractual claim. The jurisdiction to entertain such a claim arises under Article 86 of the Law, which provides that proceedings may be brought before the Tribunal in respect of an individual employment dispute which involves a claim in respect of which a Court in Jersey would have jurisdiction.

 

38. Claims under Article 86 require the Tribunal to make findings of fact and to make decisions on the contractual claim, as was made clear in the English Court of Appeal in Boardman v Nugent Care Society and Another [2013] ICR 927, where it was held that: -

 

“….in considering a claim for wrongful dismissal, the employment tribunal was not confined to a reviewing role, and it was not only appropriate, but necessary, for the tribunal to make its own findings of fact as to whether the claimant had breached [its] contract in such a way as to justify summary dismissal”

 

39. This approach has been endorsed by the Royal Court on appeal from the Tribunal in the case of Voisin v Soares [2014] JRC 004.

 

40.  Such a claim arises when an employer terminates the contract of an employee contrary to the terms of the contract, for example, by failing to give proper notice or by breaching another contractual term such as a failure to follow the contractual disciplinary procedure. In this case, the alleged breach is the failure by the Respondent to pay notice following its repudiatory breach of contract.

 

41. The general rule is that either party can end the contract by giving the appropriate notice without cause or reason.

 

42. A wrongfully dismissed employee can recover damages for breach of contract. The idea is to put the employee in the position that he or she would have been in if the employer had not broken the contract.

 

43. This case concerns allegations of repudiatory breaches of contract by the employee against the employer which created a situation that gave the employee no alternative but to resign. It would likely follow from a finding of constructive unfair dismissal that there had also been a wrongful dismissal for a failure to pay notice pay but it is important that the Tribunal considers the claim for wrongful dismissal separately from that for unfair dismissal.

 

44. It is for the Tribunal to consider whether the failure to pay notice pay in a particular case amounted to a breach of contract and whether, in all the circumstances, the employee was entitled to receive that notice pay in accordance with the contract.

 

45. It should be said that if a finding was made that there was no constructive unfair dismissal, there could still be a finding of wrongful dismissal if the resignation, though not one which resulted from a repudiatory breach, was then followed by a wrongful failure to pay notice pay. However, if an employee resigned having no intention of making himself or herself available to work during the notice period there would be no breach of contract if no notice payment was made, whether or not there had been an unfair dismissal.

 

46. It is also the case that this Tribunal is not bound by a finding of fact made by a differently constituted Tribunal if it considers that that finding was wrong or not supported by the evidence. Likewise, the Tribunal is not bound by the reasoning of such a differently constituted Tribunal where it considers such reasoning to have been based on an error of law.

 

DECISION

 

 

47. As indicated above the Tribunal carefully considered all of the evidence that it heard and the documentation relied upon. In order for the Applicant to have every opportunity to properly present her case in Closing, the Tribunal acceded to her application to submit Closing Submissions in writing. It has no hesitation in preferring the evidence of the witnesses for the Respondent over that of the Applicant and her husband. Having heard and seen the Applicant give her evidence, the Tribunal considered her to be a very unsatisfactory witness. It was the Tribunal’s view that the Applicant’s version of events was not credible and, having considered her evidence very carefully it found that she was not a truthful witness.

 

48. It was of note that whenever the Applicant was challenged as to her version of events, she would state that she either could not remember or that due to her poor health or the medication that she had been taking or indeed, her difficulty with the English language, she claimed that she was not able to assist. The Applicant had the benefit of a translator throughout the Final Hearing but only resorted to her for assistance with the odd word or phrase over the two days of the Hearing. The language used by the Applicant was on occasion sophisticated and at no time was the Tribunal concerned that any medical condition from which the Applicant might have been suffering impacted on her ability to present her case. The Tribunal was and remains confident that the Applicant fully understood the nature of the claims that she was making and the response with which those claims were met. The Applicant was permitted to provide her Closing Submissions in writing so as to afford her the opportunity to present her case in the best possible way.

 

49. As indicated, the Tribunal considered the Applicant’s evidence and her Closing Submissions very carefully, making appropriate allowances for her health issues and difficulties with language, and found that she was not a truthful witness.

 

50. As to Mr Trenouth-Wood, the Tribunal reached the same conclusion regarding his evidence, however, the aspects of the case that Mr Trenouth-Wood could give evidence upon were limited as, in large part, his evidence concerned what he had been told by the Applicant. It is the finding of the Tribunal that he was engaged with the Applicant in bringing a spurious claim against the Respondent. That underpinned the Tribunal’s view of the evidence given by Mr Trenouth-Wood and the Tribunal found as in the case of the Applicant that he was not a truthful witness. What might be termed the “Disgusting Pigs” email was shocking. It was the Tribunal’s finding that this was part of an engineered attempt to obtain compensation by inventing claims against the Respondent that simply were not true.

 

 

51. The evidence of the witnesses called on behalf of the Respondent was consistent and credible. Despite being cross-examined with significant vigour by the Applicant, none of them was shaken in the evidence that they gave. As indicated above, the Tribunal preferred the evidence of the Respondent against that of the Applicant wherever there was any contradiction or dispute.

 

52. As a consequence, the Tribunal finds as a matter of fact that there was no breach of contract, fundamental or otherwise, in what was said or done by Mr Shaw and/or Mr Layton on or prior to 6 October 2015. The Tribunal finds as a matter of fact that the Applicant planned to leave her employment and take another job immediately. The Tribunal finds that it was the Applicant’s intention to gain an advantage in that new employment (and potentially to cause damage to the Respondent) by removing a significant quantity of sensitive information concerning the Respondent’s product lines, pricing structure and supplier lists. The explanation given that this was simply to enable the Applicant to work for the Respondent from home was implausible in the extreme. This was particularly so given the Applicant’s actions in September and October 2015 with regard to the application to join the competitor and the application to widen her role within the Respondent’s organisation.  The Tribunal did not believe the Applicant’s explanation. The timing of the removal of this information and the means adopted (by sending an email to her private address and then deleting that email) caused the Tribunal grave concerns about her motivation at the time and her subsequent actions in bringing her claims against the Respondent. The Tribunal finds that the claims for compensation brought before the Tribunal were entirely spurious and without merit.

 

53. In respect to the four issues identified above, the Tribunal found as follows;

 

54. The Cardwell issue - the Tribunal did not consider that the evidence showed that the actions taken by the Applicant at the request of Mr Shaw were either illegal or immoral. The Tribunal also found that the evidence showed that the Applicant was a willing participant in the actions taken by Mr Shaw with respect to Mr Cardwell. The evidence did not support her assertion that the behaviour of Mr Shaw in this respect amounted to a breach of contract, repudiatory or otherwise. In fact, the Tribunal did not believe the Applicant when she claimed that the actions of Mr Shaw had caused her distress and in turn, caused her to resign.

 

55. It was the conclusion of the Tribunal that, as with the other aspects of her claim to be dealt with below, this complaint was invented as a means of bringing a claim against the Respondent following her disappointment at not securing an equity stake in the Respondent’s business. Therefore, the claim was entirely without merit.

 

56. Even if the Tribunal had found there to be any merit in this aspect of the Applicant’s claim, the evidence was that the Applicant had delayed from sometime in April, May, June or July 2015 when this “plan” against Mr Cardwell was being put into effect before resigning in October 2015. Indeed, far from finding the environment that Mr Shaw had created objectionable, the Applicant had by her request of 19 September 2015 sought to increase her role with the Respondent. If the Tribunal had found that there had been a breach of contract with respect to the Cardwell Issue and the Applicant had resigned as a result of that breach, it would have held that the Applicant had waived any such breach by not acting sooner.

 

57. The Time-off Issue – the Tribunal has no hesitation in preferring the Respondent’s version of events and finding as a matter of fact that there was no promise as alleged by the Applicant regarding time off. Further, the issue was a matter raised by the Applicant as part of her spurious claim that she had been treated badly by the Respondent. In fact, the evidence showed that the Applicant had been treated well by Mr Shaw throughout their relationship. It seemed that the Applicant had either convinced herself that she had been mistreated or that she was simply lying about what had happened. The Tribunal prefers the latter view and finds that there was no breach of contract with regard to the complaint made concerning time off.

 

58. The Threats Issue – once again, the Tribunal prefers the Respondent’s version of events and finds that there was no breach of contract, repudiatory or otherwise in this regard. The Tribunal finds as a matter of fact that there were no threats as alleged by the Applicant and that her claim to have been intimidated by Mr Shaw in particular was simply not true. The Tribunal had the benefit of seeing Mr Shaw give evidence and whilst at times exasperated at the allegations that were made against him, he was consistent, balanced and truthful. It was the Tribunal’s finding that he did not act as the Applicant alleged.

 

59. The Office Facilities Issue – the Applicant’s claims in this regard were not credible. Even if there had been truth or force in her complaints, the allegations were not such as to amount to repudiatory breaches. If they had been sufficiently serious, it was the case that the Applicant did not act upon them and resign. As such, she can be said to have waived the breaches.

 

60. As to the argument that all of the various complaints taken cumulatively amounted to a course of conduct that was so serious as to amount to a repudiatory breach, the Tribunal finds that there is no truth in any of the allegations. Therefore, the point does not arise for consideration.

 

61. The Tribunal finds that the Applicant resigned from her position in order to take a role with a competitor. Subsequently, she launched these proceedings in a cynical attempt to extract compensation from the Respondent to which she was not entitled. Therefore, the Tribunal has no hesitation in finding that the Applicant was not constructively unfairly dismissed.

 

62. Having made that finding, there is no need to consider the impact of Article 77(F) of the Law as no compensation is awarded to the Applicant.

 

63. As to the claim for wrongful dismissal, this must be considered separately from that for the unfair dismissal claim but against the finding of the Tribunal that the Applicant was not a truthful witness. As a consequence, the Tribunal finds as a matter of fact the Applicant resigned by her email of 6 October 2015 but that she did so with no intention of making herself available to work her notice period. In the circumstances, the Respondent did not breach the Applicant’s contract of employment by not paying her notice pay.

 

64. In making this finding the Tribunal departs from the finding and the reasoning of the differently constituted Tribunal at the Interim Hearing where it held that the Applicant’s Effective Date of Termination was 12 October 2015 and then went on to say (at paragraph 32 of the Judgement of 2 December 2016) that if the constructive unfair dismissal claim succeeded then the wrongful dismissal claim would also succeed and, further,  that if the constructive unfair dismissal claim failed then so would the wrongful dismissal claim. That is with respect to the earlier Tribunal not a correct statement of the applicable law. It is conceivable that an employee might be found to have been constructively unfairly dismissed but not wrongfully dismissed. It is also open to a Tribunal to dismiss an unfair dismissal claim (as it has in this case) and then to find that the Respondent breached the Applicant’s contract by not paying the notice pay to which he or she was entitled. In that instance, the wrongful dismissal claim would have succeeded.

 

65. However, in this case the Tribunal finds that the wrongful dismissal claim fails. It should be added that if the Tribunal had felt bound to hold that the Effective Date of Termination had been 12 October 2015 in accordance with the finding of the earlier Tribunal, it would still have held that there had been no breach of contract by the Respondent in not paying the Applicant any notice pay. This was because it has found that the Applicant never intended to make herself available for work after her resignation.

 

Conclusion

 

66. The Applicant resigned and is not entitled to an award of compensation. As a consequence, her complaint of constructive unfair dismissal is dismissed.

67. As to the claim for wrongful dismissal, the Applicant resigned with no intention of making herself available to work during her notice period. In the circumstances, the Respondent did not breach the Applicant’s contract of employment by not paying her any notice pay. As a consequence, her claim for wrongful dismissal is dismissed.

68. No award is made to the Applicant and the Tribunal only pauses to comment that if it had the power to award costs against parties it would have done so in this case against the Applicant and on the indemnity basis to reflect its disapproval of the manner in which the claim was conducted and as regards the lack of merit in the claims.

 

 

 

 

 

 

Signed: Advocate Mike Preston, Deputy Chairman                   Dated: 5 July 2017

 

 

Judgment and Reasons sent to the parties on

5 July 2017

For the Tribunal Office     

 


Page Last Updated: 18 Jul 2017