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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Allen v Sheerin [2009] NIIT 418_08IT (11 February 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/418_08IT.html Cite as: [2009] NIIT 418_8IT, [2009] NIIT 418_08IT |
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The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondents and taking into account a 75% reduction for contributory fault the tribunal orders the respondents to pay the claimant the sum of £1,053.47.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr J Smyth
Miss T Madden
THE CLAIM
1. The claimant claimed that she had been unfairly dismissed by the respondents on 22 December 2007. The respondents contended that she had not been dismissed but had resigned on 22 December 2007. The title of the respondent was amended by consent to that shown above.
THE ISSUES
2. The issues before the tribunal were as follows:-
(i) Was the claimant dismissed?
If so, was the claimant unfairly dismissed by the respondents?
The respondent’s representative indicated at the outset of the hearing that should the tribunal find that the claimant was dismissed no evidence was being proffered by the respondents to defend the allegation of unfair dismissal. The respondents’ written submissions attached to this decision make the same point.
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant and from Mrs Mary Sheerin, the manager of Fort Lodge Hotel together with Mr Kevin Sheerin, and Miss Michelle Dolan, receptionist at the Fort Lodge Hotel. The tribunal was also presented with documentation by both parties and took into account as evidence only those items of documentation specifically referred to in the course of evidence.
FINDINGS OF FACT
4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant was employed by the respondents from 27 February 2006 until 22 December 2007, being the effective date of her termination of employment. The claimant had been employed initially as a restaurant supervisor and was a receptionist for some time prior to the 22 December 2007.
(ii) The tribunal considered that the claimant was unconvincing in relation to certain parts of her evidence and found that the most credible of the respondents’ witnesses was Mary Sheerin.
(iii) On or about 17 November 2007, the claimant had had a heated exchange with the chief chef in the hotel who had told her to “get out”. The claimant went to the hotel car park for 20 minutes to half an hour in order to calm down before returning to the hotel to resume work. The tribunal also accepts that in or about early-mid December 2007, Kevin Sheerin had indicated to her that she should look for another job. Kevin Sheerin had also spoken to the claimant on a previous occasion expressing concerns about her ex-husband coming into the hotel premises. On the Saturday following 22 December 2007, Damien Sheerin, who worked in the bar area in the hotel refused to give the claimant’s daughter access to a disco in the premises owing to the fact that she had allegedly been involved in a fight in the hotel the previous week. Kevin Sheerin described himself as a door supervisor and produced a certificate to the tribunal in relation to such duties. He preformed security duties on Saturday nights in the hotel and, in relation to the incident regarding the claimant’s daughter, the tribunal is satisfied that he did have a role to play in the sequence of events preventing her from entering the premises. He admitted that he and his brother Damien worked as a team, and kept reiterating in his evidence that no one member of staff was above another. Kevin Sheerin worked 60 hours per week as a lorry driver for Quinn Brothers. The tribunal accepts that, apart from his duties on Saturday night, he did not come to the hotel on a regular basis, or stay for a long time.
(iv) The tribunal is not satisfied that Kevin Sheerin was responsible for terminating the employment of other members of staff as claimed by the claimant. The claimant in her evidence in chief acknowledged that Mary Sheerin made all decisions in relation to hiring and firing staff. However, in relation to the incident which occurred on 22 December 2007, and although in her evidence she did not ascribe a management role to Kevin Sheerin, on this occasion the claimant maintained that he had dismissed her and made the case that he had authority to do so on behalf of the respondents.
(v) The claimant was a fundraiser for a scout group, which was using the residents’ lounge in the hotel on 21 December 2007. Kevin Sheerin met the claimant on that occasion and enquired as to the persons using the residents’ lounge. The claimant stated that Kevin Sheerin’s mother, Mary Sheerin, knew about it. Kevin Sheerin spoke to his mother on the following morning (Saturday) but she denied having any knowledge of the function involving the scouts. The claimant was scheduled to come on duty at 3.00 pm on 22 December 2007. Kevin Sheerin, who had arrived at the hotel to collect his fiancée, Michelle Dolan, spoke to the claimant shortly after 3.00 pm on 22 December 2007 in the hotel reception and put it to her that she had told a lie in relation to his mother having knowledge of the scouts’ function on the previous night. The tribunal is satisfied that Michelle Dolan raised a bill of £10 for this function. Kevin Sheerin then went to bring Mary Sheerin to the reception area. Although she claimed that she was unable to recollect the words used, Mary Sheerin did state in evidence, which the tribunal accepts, that both the claimant and her son Kevin were shouting at one another and she had to advise them to keep their voices down as customers were looking on. The tribunal is further satisfied that such an exchange did take place at the end of which Kevin Sheerin told the claimant to “get out, get out now, we have Michelle, we don’t need you”. This was followed by a further exchange between the claimant and Kevin Sheerin. The claimant stated that she had left a full time job to work for him again. Kevin Sheerin then stated that that was their mistake for taking her on full time and to “get out”. The tribunal is equally satisfied that Mrs Sheerin was present when all of these words were uttered, as she was able to testify both as to the claimant’s immediate reaction to the words when she said “I don’t have to take this crap”, and that she then lifted her bag and left the premises.
The claimant received a sum of money on the following Thursday delivered by her cousin. There is no evidence before the tribunal as to the precise period covered by this payment. No effort was made by or on behalf of the respondents to contact the claimant further after the effective date of termination as, according to Mary Sheerin, this was not normal procedure. The claimant then wrote to the manager of the hotel on 10 January 2008 stating as follows:-
“Following my dismissal, as hotel receptionist, from your employment on 22 December 2007 I hereby require you to confirm in writing the main terms and conditions of my employment.”
The respondents then invited the claimant to a grievance hearing on Monday 4 February 2008 in the hotel to discuss matters. In correspondence to the claimant dated 18 January 2008 they asserted “that you instead resigned from your employment on 22 December 2007 with immediate effect and walked off the site”. Present at the grievance hearing were Mary Sheerin, Damien Sheerin, Kevin Sheerin and the accountant Eric Johnston together with Mrs Morrison. In correspondence dated 6 February 2008 to the claimant after the grievance hearing, the respondents maintained that she had resigned and stated further that “at the Hearing you acknowledged having admitted patrons to the residents’ lounge of the hotel without payment however you considered your actions to be justified as management had on occasions exercised its’ discretion in affording some patrons with admission without payment also. We would advise that we would consider your actions to amount to a breach of the terms of your employment, however as you have resigned from your employment no further action will be taken in this regard.”
(vii) The claimant gave evidence regarding her alleged loss. The parties’ representatives prepared a Schedule of Loss which was agreed in most respects. The tribunal is satisfied that the claimant did not mitigate her loss from the end of July 2008 onwards as she chose to leave her job with British Telecom on the basis that she did not like working in a call centre and was seeking variety in her daily work routine. The claimant obtained Job Seekers’ Allowance from 28 December 2007 until 3 February 2008 amounting to £295.75. The relevant maximum weekly amount at the effective date of termination was £310. The claimant was aged 44 at that date.
SUBMISSIONS
5. The tribunal received considerable assistance from the helpful written submissions furnished by Mr Flanigan and Mr Black. These submissions are attached to this decision. Both legal representatives made further oral submissions on the final day of the hearing.
6. THE LAW
The relevant statutory provisions of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) and case law is adequately set out in the written submissions attached to this decision. The tribunal considered these submissions carefully together with the oral submissions and the section in Harvey on Industrial Relations and Employment Law Volume 1, paragraph D1225 – 249.
CONCLUSIONS
7. The tribunal, having carefully considered the evidence together with the submissions from both parties and having applied the principles of law to the facts as found concludes as follows:-
(i) The tribunal is satisfied that Kevin Sheerin had at least ostensible authority to bind the respondents when he spoke to the claimant in the terms recorded in the Findings of Fact. These words of dismissal were unambiguous and would have been so understood by a reasonable listener having regard to all the surrounding circumstances including the fact that Mary Sheerin did not intervene or speak to the claimant further before she left the premises. Mary Sheerin did nothing to indicate that Kevin Sheerin had no authority to dismiss her nor did she seek to contact the claimant after she had left the hotel. Furthermore, it is clear to the tribunal that the claimant understood these words as being tantamount to dismissal and, if they were used by Kevin Sheerin in the heat of the moment, neither he nor Mary Sheerin or anyone else on their behalf sought to withdraw them.
(ii) In the absence of any evidence being proffered on behalf of the respondents, the tribunal is satisfied that the claimant was summarily dismissed for misconduct on 22 December 2007. The decision to dismiss the claimant did not fall within the band of reasonable responses which a reasonable employer might have adopted in the particular circumstances of this case, and therefore the dismissal was unfair.
(iii) The tribunal is satisfied that the claimant contributed substantially towards her own dismissal and that there should be a 75% reduction in the compensatory award to reflect this, by virtue of Article 157(6) of the Order. Moreover, it is satisfied that a similar reduction should be made in respect of the basic award by virtue of Article 156 (2) of the Order. The tribunal calculated the average net weekly loss in wages from 4/2/08 until the end of July 2008 (taking into account the payment of £259.71 for week ending 27/7/07) at £60.50 and, given its finding relating to mitigation, is satisfied that this is the appropriate weekly net loss of for the entire period from 4/2/08 until 14/1108.
(iv) The tribunal is also satisfied on the evidence that the claimant is not entitled to any other remedy or remedies under the Order.
(v) The tribunal therefore awards the claimant the sum of £1,053.47 made up as follows:-
Basic award £288 x 1.5 = £432.00 minus 75% = £108.00
Compensatory award from 22/12/07 – 4/2/08 = £1,508.57
Compensatory award from 4/2/08 – 14/11/08 =
40.6 weeks @ £60.50 = £2,456.30
Total compensatory award = £3,964.87
minus 75% = £991.22
Add amount for loss of statutory rights £250.00
Total monetary award to include
basic award = £1,349.22
8. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996. The award is therefore subject to recoupment of Job seeker’s Allowance from 28 December 2007 to 3 February 2008 totalling £295.75.
The attached Recoupment Notice forms part of the decision of the tribunal.
9. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 12 December 2008, Enniskillen and 20 January 2009, Enniskillen
Date decision recorded in register and issued to parties:
Case Ref No: 00418/08
RESPONDENT: Mary Sheerin and John Sheerin T/A Fort Lodge Hotel
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
£
(a) Monetary award 1,349.22
(b) Prescribed element 295.75
(c) Period to which (b) relates: 28/12/07 – 3/2/08
(d) Excess of (a) over (b) £1,053.47
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.
EMPLOYMENT
TRIBUNALS NI
CASE NO 418/08IT
GERALDINE ALLEN
CLAIMANT
-V-
MARY SHEERIN & FORT
LODGE HOTEL
RESPONDENT
WRITTEN
SUBMISSIONS ON BEHALF OF THE CLAIMANT
The Statutory Test
The statutory scheme under the Employment Rights (Northern Ireland) Order 1996 (No. 1919 (N.I. 16)) sets out the right not to be unfairly dismissed and the circumstances regarding what will constitute a dismissal.
The Right
126.
—
(1) An employee has the right not to
be unfairly dismissed by his employer.
(2). Paragraph (1) has
effect subject to the following provisions of this Part (in
particular
Articles 140 to 144).
Dismissal
Circumstances in which an
employee is dismissed
127. - (I) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only if)-....
(a) the contract under which he is employed is terminated by the employer (whether with or without notice),
The Issues
Whether or not Mrs Allen was dismissed is central to this case. It is agreed by both parties that if she was dismissed then the dismissal was unfair.
It is the claimant’s case, in short, that on or about the 22’” December 2007, following an altercation with Kevin Sheerin (the respondent’s son), she was told to “get out, get out now” and that following an exchange about her return to full time work with the Respondents Kevin Sheerin stated “that was our mistake, get out now”. She alleges that the latter part of this exchange took place in front of the
Respondent who did not act or communicate any intention contrary to her son, Kevin Sheerin.
3. Two important issues arise. Firstly, was there in fact a dismissal i.e. was the language used by Kevin Sheerin sufficient to satisfy the standard imposed by law as to allow the Claimant to construe them as words of dismissal. Secondly, if this is found in the affirmative, was the act of dismissal. by the employer.
The language used
4. It is the Claimant’s submission that the words used by Kevin Sheerin to her were unambiguous in meaning. They were not merely words of rebuke or chastisement and it was clear they were words meant to construe dismissal and that the learned Tribunal should adopt a subjective approach when deciding this case.
5. In B G Gale Ltd v Gilbert [1978] IRLJ? 453 Arnold I commented;
“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.”
6. In Sothern v Franks. Charlesly & Co [1981] IRLR 278 support for such a subjective approach is found in the dictum of Fox LJ;
“…The natural meaning of the words and the fact that the employers understood them to mean that the employee was resigning cannot be overridden by appeals to what a reasonable employer might have assumed. The non-disclosed intention of a person using language as to his intended meaning is not properly to be taken into account in determining what the true meaning is. That was the actual decision of the tribunal in Gale v Gilbert and in my view it was correct”
7. It is contended that a three step approach should be taken by the Tribunal in the analysis of the language. Firstly, it must be established that the words used really are unambiguous and indicate a clear and present intention to sever the employment relationship. It is submitted that the words “get out, get out now” are unequivocal in indicating such an intention.
8. Secondly, the Tribunal must look to how the words were understood (B G Gale Ltd v Gilbert.) If it is not clear how the words were understood, the Tribunal may infer that they were understood as a reasonable listener may have construed them in all the circumstances. It is submitted that it is clear from the evidence of the Claimant how these words were understood but in the event the Tribunal is not satisfied with this understanding it is contended that any reasonable listener in the circumstances would have construed such language as a dismissal.
9. Thirdly, as the EAT held in Martin v Yeomen Aggregates Ltd [1983] IRLR 49 if the words are used in the heat of the moment they will not constitute a dismissal if withdrawn immediately. It is contended this limb of the approach does not apply to these facts.
10. In all the circumstances it is the Claimant’s contention that it is clear that she was in fact dismissed from the language used toward her.
Was the act of dismissal by the employer?
It is the claimant’s submission that the act of dismissal was the act of her employer. She has given evidence that Mr Sheerin had taken an active role previously in the hiring and firing of employees and even on the Respondent’s evidence, he took an active role in managing the premises although she indicates mostly when she wasn’t there.
It
is submitted on behalf of the claimant that the principles laid down
in the case of Warnes v Trustees of
Cheriton Oddfellows Social Club [1993] IRLR 58 apply,
namely;
“An employer is not
entitled to rely upon the lack of power under its constitution of an
officer or organ of the employer in acting in a way which f valid
would constitute a dismissal”
As
Harvey (Issue 195) at DI [251] indicates;
“this
is consistent with the principle in company law that a company will
be bound by the actions of any officer who has either actual or
ostensible authority, i.e. either has the authority or is held out
as having the authority by someone capable of binding the company As
the EAT noted, the position would be otherwise f
both sides appreciated that
what was done was of no practical effect or significance. This would
cover for example, a purported dismissal by someone with no actual
or ostensible power to dismiss. But in such circumstances one would
expect the employer speedily to restore the employee to full status
on becoming aware of the action wrongfully taken in his name.”
This approach is relied upon by the Claimant. If it is not accepted that Mr Sheerin had the power to dismiss the claimant, it is her submission that on the evidence Mr Sheerin at the very least on a number of occasion held himself out to have such a power and that because of this and the words used she took it she was dismissed.
In
the alternative if that is not accepted, it would seem that as these
events took
place in front of the Respondent she was under a
duty to do something about this
situation. It is submitted that,
if her intention was not for the claimant to be
dismissed then
she should indeed have taken steps to restore the claimant’s
• employment status as soon as possible. It is clear that
the Respondent acted in no
• such manner. She didn’t
even attempt to contact the claimant.
It is for the above reasons that the Claimant claims for Unfair Dismissal and seeks compensation as adjudged appropriate by the Tribunal.
Colm
Flanagan BL
IN
THE OFFICE OF INDUSTRIAL TRIBUNALS AND
FAIR EMPLOYMENT TRIBUNAL
Case No.
418/081T
BETWEEN
GERALDINE ALLEN
Claimant
- and –
MARY
SHEERIN
Respondent
WRITTEN SUBMISSIONS
THE CLAIM
The Claimant claims that she has been unfairly dismissed by the Respondent. The Respondent denies that the Claimant was dismissed, and contends that the Claimant resigned from her employment.
THE ISSUE
The issue before the Tribunal, as agreed by the parties, is whether the Claimant was dismissed from her employment with the Respondent.
It is acknowledged that should the Tribunal determine that the Claimant was dismissed then such dismissal was unfair.
THE LAW
The statutory provisions relevant to the claim are comprised in the Employment Rights (Northern Ireland) Order 1996 (“the Order) and in particular:
The Right
126. — (1) An employee, has the right not to be unfairly dismissed by his employer. . .
Page
I
Circumstances in which an employee is dismissed
127. — (1) For the purposes of this Part an employee is dismissed by his employer if (and subject to paragraph (2), only if) –
(a) the contract under which he is employed is terminated by the employer (whether with or without notice),
5. In the event that the Claimant establishes that she was dismissed from her employment the statutory provisions in relation to contributory fault and mitigation of loss as contained in Articles 156 and 157 of the Order shall also become relevant.
SUBMISSIONS
The preliminary question arising in this case is whether or not there has been a dismissal. In such circumstances the burden of proof falls on the Claimant and the Tribunal must consider whether it was more likely than not that the contract of employment was terminated by dismissal rather than by resignation.
The Claimant alleges that on or about 22 December 2007, following an exchange of words with Kevin Sheerin (the Respondent’s son) she was told by Kevin Sheerin to “get out; get out now”.
The issues which give rise to whether there was a dismissal are whether the words allegedly spoken by Kevin Sheerin were unambiguous in meaning and sufficiently clear to constitute an express dismissal, and secondly whether such action taken by Kevin Sheerin was carried out by or on behalf of the employer. Thirdly, it is also necessary to focus attention on the actions of the Claimant to determine whether her actions amounted to a resignation.
Ambiguous Language
The issue as to whether words used in the heat of the moment by an employer amount to words of dismissal and whether the words used in a similar situation by an employee amount to a resignation is one which regularly arises for decision by Tribunals. The principles of law which apply to the resolution of such an issue have been considered by the Court of Appeal in Southern v Frank Charlesly & Co [1981] IRLR 278 and by the Employment Appeal Tribunal in Tanner v Kean [1978] IRLR 110, Gale Limited v Gilbert [1978] IRLR 453, Martin v Yeoman Aggregates Limited [1983] IRLR 49, Stern v Simpson [.1983] IRLR 52 and Barclays v City of Glasgow District Council [1983] IRLR 313.The authorities have been appropriately discussed and outlined by the learned editors of Harvey
Page
2
on
Industrial Relations and Employment Law at Volume
1, paragraphs Dl 225 to
249.
The commentary provided by Harvey establishes the following applicable principles:
(i) The
intention of the speaker is not the relevant test; and
(ii) 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 having regard to all the surrounding circumstances.
11. According to the Claimant the following words were spoken at the reception of the Fort Lodge Hotel:-
Kevin
Sheerin: “You have told
a lie and you can get out now.
Claimant: You cannot speak to me
like that”
Kevin Sheerin: “Get out, get out now. We
have Michelle here now, we don’t need
you.”
Claimant: [Words spoken with regard to full time employment]
Kevin Sheerin: “That was our mistake, get out.”
The Claimant acknowledged that both she and Kevin Sheerin spoke with raised voices. In view of the comments alleged to have been made by Kevin Sheerin the Claimant stated .that she assumed it was the end of her employment. The Claimant alleged that the Respondent ‘just stood there and made no comment” although the Claimant did agree that she did not speak with or seek to clarify her employment status with the Respondent.
At the time of preparation of these written submissions, evidence has not been provided by either Kevin Sheerin or Michelle O’Dolan. In giving evidence the Respondent stated that she was not present initially and that whilst working in the restaurant she heard raised voices, however, was unable to make out the words spoken. The Respondent stated that when she arrived at the reception she spoke with both the Claimant and Kevin Sheerin and asked them to be quiet as there were customers in the lounge; The next words which the Respondent recalls being spoken were from the Claimant who said that she had had “enough of this crap”. The Respondent stated in evidence that the Claimant then “lifted her bag and walked out” and it was this course of action by the Claimant which was interpreted by the Respondent as a resignation by the Claimant from her employment.
I
would respectfully submit that caution should be given with regard
to the
credibility of the Claimant in respect of her version of
the words allegedly spoken.
As outlined above the Claimant
purports that Kevin Sheerin stated that “we have
Michelle
here now, we don’t need you.” This was the first
occasion on which the
Claimant alleges that these words were
spoken by Kevin Sheerin having
Page 3
addressed the issue previously in both the IT1 and the Replies to Request for Additional Information.
With regard to the words “get out; get out now” it cannot be said that these words are unequivocal and an indication to sever the employment relationship. When asked during cross examination, the Claimant acknowledged that on previous occasions she had been told by the head chef of the Fort Lodge Hotel to “get out”. The Claimant agreed that when these words were communicated by the head chef she did not interpret them as amounting to a termination of her employment.
Although the case law has established that the intention of the speaker is not the relevant test; I would respectfully submit that the identity and capacity of the speaker is a relevant consideration having regard to all the surrounding circumstances. The issue as to the role held by Kevin Sheerin is detailed further below, however, although this is set out as a distinct issue I would submit that Kevin Sheerin’s lack of authority within the hotel is a relevant factor in determining how the words alleged to have been spoken would have been understood by either the Claimant or a reasonable listener having regard to all the surrounding circumstances. As acknowledged by Claimant in relation to the scenario set out in the paragraph above, I would respectfully submit that the use of the words “get out; get out now” by an individual who is neither the employer nor someone with the authority of the employer cannot be interpreted as amounting to unambiguous words indicating dismissal from employment.
Was the alleged act of dismissal by the employer?
In Harvey on Industrial Relations and Employment Law at Volume 1, paragraph Dl 251 in commenting on the case of Warnes v Trustees of Cheriton Oddfellows Social Club [19931 IRLR 58 it is noted that:
“…a
company
will be bound by the actions of any officer who has either actual
or
ostensible authority, i.e. either has the authority of is held
out as having the authority by someone capable of binding the
company... As the EAT noted, the position would be otherwise if both
aides appreciated that what was done was of no practical effect or
significance. This would cover, for example a purported dismissal by
someone with no actual or ostensible power to dismiss.”
The Claimant acknowledged in evidence that Kevin Sheerin was “just Mary’s son”. As far as the Claimant was aware, Kevin Sheerin did not hold any managerial role within the hotel other than to run the nightclub and at no stage was the Claimant advised that Kevin was the boss”. The Claimant acknowledged that the Respondent made all decisions and that it was the Respondent who “dealt with the hiring and firing. The Claimant did comment on Kevin Sheerin having “got rid of people” and in particular named Donna Foy and
Page 4
Jeanette Morrison, however, under cross examination the Claimant acknowledged that she did not witness such incidents first hand and could only make these remarks on the basis of comments that she had heard from a third party.
18. Evidence was also given by the Respondent that her son Kevin Sheerin is employed as a lorry driver by Sean Quinn and at the relevant time was working in the region of 60 hours per week in this employment. At the time of the alleged incident Kevin Sheerin had called into the hotel to collect his girlfriend, Michelle O’Dolan, who had lust finished her shift and was not on the premises in his capacity as an employee or indeed as an agent or representative of the Respondent.
19.The Claimant’s Counsel in cross examination of the Respondent sought to establish that Kevin Sheerin took an active role in managing the premises particularly when the Respondent was absent. Even if this were established it does not impact on the fact that the Respondent was present on the premises at the time• of the alleged dismissal and furthermore that the Claimant herself acknowledged that Kevin Sheerin held no managerial role or responsibility within the hotel.
20. The Claimant gave evidence that during a previous discussion with Kevin Sheerin a mailer of weeks previously he advised the Claimant that she “should look for another job”. The Claimant conceded that she took no action in response to this comment and did not deem it significant enough to discuss with the Respondent. It is questionable as to why the Claimant did not deem these words as constituting a dismissal from her employment, however, the words alleged to have been spoken on 22 December 2007 were interpreted as such. I would therefore respectfully submit that the Claimant cannot elect to establish that on one occasion comments made by Kevin Sheerin were insignificant and in no way binding on the Respondent and on the occasion relevant to these proceedings seek to convince the Tribunal that Kevin Sheerin either had the power to dismiss or at the very least held himself out to have such a power.
Contributory Fault and Mitigation
21.
In the event that the Tribunal should determine that the Claimant has
been unfairly dismissed from her employment, it would be my
respectful submission that any award of compensation to the Claimant
should be reduced in accordance with Articles 156 and 157 of the
Order by reason of the Claimant’s actions. In particular a
deduction
should be made for the Claimants failure to bring any issues she may
have had with Kevin Sheerin to the attention of the Respondent and
also the Claimant’s failure to clarify her employment status
with the Respondent who was in attendance on the premises and
available to consult on 22nd
December 2007.
Page 5
22.The Claimant has also demonstrated a failure to mitigate her loss in that she admitted under cross examination that in July 2008 she voluntarily left her employment working in the BT call centre on behalf of Manpower due to the fact that she “did not like working in a call centre” and sought variety in her daily work routine. The Claimant’s reduction in income as a result of commencing employment with Grafton cannot therefore be attributed to the Respondent.
Conclusion
23. The words alleged to have been spoken by Kevin Sheerin, if spoken at all, cannot be interpreted as being sufficiently clear to constitute an express dismissal. Furthermore, the fact that they were allegedly spoken by an individual who the Claimant herself was aware did not hold any managerial role or authority would mean that Claimant cannot establish that she was dismissed within the meaning as provided within Article 127 of the Order.
24.The evidence of the Respondent that on arrival at reception she heard the Claimant state that she had had “enough of this crap” combined with the actions of the Claimant lifting her bag and walking out without seeking clarification of her employment status from the Respondent would strongly indicate that the Claimant resigned from her employment.
25. In the event that the Tribunal - determines that the Claimant has been unfairly dismissed from her employment, the Tribunal should consider reducing any compensation due to the Claimant’s contributory fault and her failure to mitigate her loss as aforementioned.
Page 6
