Ms I Lymperi v Yeotown Kitchen Ltd: 2206573/2018
JUDGMENT
[1]The judgment of the Tribunal is that the respondent did not:1.1 Wrongfully dismiss the claimant in breach of contract or1.2 Fail to pay the claimant for training/ induction days. Those claims are dismissed.[2]By consent the tribunal finds that the respondent is liable to pay the claimant for salary of two weeks and accrued holiday pay and it orders the respondent to pay the gross sums below, after deduction of tax and NI, in the April payroll:2.1 Wages of £1,076.92 and2.2 Holiday pay of £159.[3]The tribunal records that the claimant did not pursue a claim of unfair dismissal.[4]Reasons have been requested and will be provided.REASONS
[1]The Claimant’s case was that she was dismissed. The decision as to whether she was dismissed or resigned was a difficult one to make because neither side provided the explicit evidence that I would expect in this situation. A lesson to be learned for the Respondent is that should this situation ever arise again, or anything similar to it, a Tribunal would expect to see explicit confirmation in correspondence between an employee and an employer as to exactly how the employment ended. So, I am making my decision on a balance of probabilities, and on balance my decision is that the Claimant resigned on 14 August 2018 rather than being dismissed.[2]I list the reasons for that briefly: - 1 -2.1 In the run up to what I have found was a resignation, the Claimant informed the Respondent on 13 August that she would rather leave then do front of house waitressing work because she had been employed as a manager. Because the café was short staffed the Claimant was expected to muck in and help with service and also work the coffee machine and this was not something that she felt she had been employed to do.2.2 On the day of termination, 14 August, the Claimant again stated in an email, which also contained ideas about how to take the business forward in a way she considered more appropriate, the Claimant reiterated that she was not willing to do front of house work.2.3 She also suggested that the Respondent might not trust her and in which case there was no point in continuing work; this was before events which led to her leaving the premises for a second time.2.4 She left the Café mid shift on 13th. When she left again on 14th it was in an unplanned manner fairly early on in her shift and she gave the staff the impression that she was leaving her job.2.5 The Claimant was clearly upset, I have not gone in to the reasons why she felt upset and I do not say that she did not have grounds for feeling upset, but it was clear that she was very unhappy and disturbed about the situation which would of course give her a motive for resigning.2.6 She also returned the keys. The circumstances of her returning the keys are not entirely agreed but she did nonetheless return the keys that she had held as manager.2.7 It is clear from her WhatsApp correspondence with the claimant that the owner of the business, Mrs Sieff, believed that the Claimant had resigned and the WhatsApp messages say for example “you made it clear that you were not coming back”. The Claimant did not ever challenge this, in writing anyway, and - 2 - she responded also in a WhatsApp message to say, “sorry it has not worked out”. Those appear to be words of recognition that the employment had come to an end by resignation.2.8 There are, by contrast, no explicit words of dismissal on the part of the employer, indeed no words which would really lead to ambiguity on that point.2.9 When, later on, the Respondent treated the employment as terminated by resignation the Claimant did not say that she had not resigned.2.10 The Claimant also said to a witness, who was a new member of the waiting at the café, that she was leaving. Her words were potentially ambiguous, but his clear understanding was that she was resigning and when he said something along the lines of good luck and it was nice to have met her she did not respond that she was not resigning and was simply going home.2.11 There clearly was a significant falling out between the Claimant and the owner of the business, Mrs Sieff, albeit the from a long distance away as the respondent was away on holiday in the Far East with her family. Mrs Sieff points out that she had no motive to end the contract given that she was on holiday and the last thing she wanted was to lose her manager.2.12 She also points out that if she had decided to dismiss her manager she would not fight in a Tribunal over an obligation to pay one weeks’ notice pay.[3]So, all in all and on balance I conclude that the Claimant’s departure from the business on 14 August was a resignation and that as the termination was not a dismissal it did not attract the right to notice pay.[4]I note that during the course of the litigation, regrettably not before the litigation was commenced, the Respondent has agreed that it is obliged to pay accrued holiday pay which of course is clearly set out in statute as an obligation. The Respondent has today agreed to an order for £159 gross in terms of holiday pay. - 3 -[5]The Respondent has also during the course of this hearing agreed that it is obliged to pay the Claimant for the two weeks she worked amounting to £1,079.96 gross.[6]In terms of the trial period, the Claimant attended the premises on three occasions for orientation or training purposes and was paid for fifteen hours so my conclusion there is that the Claimant was paid for those attendances at the premises.