Ms D McPhee v The Red Squirrel Children’s Nursery Ltd: 4109759/2021
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4109759/2021
Between
Ms D McPheeClaimantThe Red Squirrel Children’s Nursery LtdRespondent
Before
Employment Judge MurphyDate 13 October 2021
JUDGMENT
The claimant was not dismissed by the respondent within the meaning of section 95 (1)(a) of the Employment Rights Act 1996 on 29 March 2021 or at all. The claimant’s complaint of unfair dismissal is dismissed.
REASONS
Issues
[1]The claimant has presented a claim for unfair dismissal. She alleges she was dismissed by the respondent on 29 March 2021. E.T. Z4 (WR)[2]The respondent resists the claim on the grounds that(1) the respondent did not dismiss the claimant on 29 March 2021, as alleged, or at all; and(2) in the event that the respondent is found to have dismissed the claimant on that date, the dismissal was for redundancy (a potentially fair reason) or some other substantial reason and was reasonable in all the circumstances.[3]A preliminary hearing was fixed to determine the issue of whether the claimant was dismissed as a matter of law in circumstances where the respondent had purported to reinstate her on appeal. It is relevant to note that there is no claim for a statutory redundancy payment. The only context in which the Tribunal requires to determine whether there was a dismissal is for the purpose of the unfair dismissal claim.[4]The hearing took place via cloud video conferencing, there being no objection by either party to this format.[5]The Tribunal heard oral evidence from the claimant and from the respondent’s finance director, Stephanie Dunn. A relatively brief Inventory of Productions was lodged. Findings in Fact[6]Having heard the evidence, the Tribunal found the following facts to be proved.[7]The claimant was employed by the respondent from 23 November 2018 initially as a cleaner. Her role latterly changed to that of administrative assistant.[8]She commenced a period of maternity leave in September 2019. In June 2020, the claimant’s maternity leave ended. Instead of returning to work at that time, the claimant was placed on furlough leave. The respondent had experienced a significant downturn in revenue because of the Covid 19 pandemic.[9]On 21 July 2020, the respondent sent the claimant a letter informing her she was at risk of redundancy. She was invited to a meeting to discuss the situation. She attended the meeting on 28 July 2020 with Stephanie Dunn. At that meeting, her redundancy was not confirmed but she was told Ms Dunn would contact her again.[10]The claimant had subsequent calls with Ms Dunn in December 2020 and January 2021 when Ms Dunn told her there was not scope for her to return to work at that time and that she would continue on furlough leave.[11]On 8 March 2021, the claimant sent an email to Ms Dunn. She informed her she was pregnant and that she wished to start her maternity leave on 28 June 2021.[12]Ms Dunn called the claimant shortly after she received the claimant’s email. She told the claimant that she had sent a letter to her, serving notice of redundancy on 1 March 20221, and that the termination was due to take effect on 29 March 2021. She said, from the claimant’s email, it seemed that she (the claimant) had not received it. She said she would require to take HR and legal advice on the effect of the claimant’s lack of receipt.[13]Ms Dunn called the claimant back the following morning (9 March ’21). She told the claimant that as far as the respondent was concerned, the redundancy notice stood. She said that the claimant’s employment would end on 29 March 2021 and that she would be remunerated anything owed, including accrued untaken holiday pay on 31 March 2021. She told the claimant that the letter of 1st March had been sent using a tracked service and that she would locate the tracking number to provide it to the claimant so she could investigate what had happened to the letter.[14]Shortly afterwards on 9 March, Ms Dunn emailed the claimant. She confirmed that the redundancy letter had been issued on Monday 1 March 2020. Her email stated: “Your employment termination is effective from 29 March 2021 and reasons cited as no administration positions are available and financially viable for the business. We note based on the MATB1 form, the 15th week before your baby is due is 7th April 2021 which means that you are not entitled to statutory maternity leave as an employee.”[15]She indicated that she would arrange for another copy of the information to be sent to the claimant within 7 days. She did not, however, send a copy of the dismissal notice letter in this time scale.[16]The claimant took advice from the Citizens Advice Bureau and from ACAS. She decided to appeal against her dismissal. At this stage she had still not seen the letter dated 1 March 2021.[17]The respondent had no published procedure dealing with redundancy appeals, contractual or otherwise.[18]The claimant sent an email to Ms Dunn on 24 March 2021 in the following terms: “Dear Stephanie Dunn I am writing to formally appeal against the decision to dismiss me because of redundancy on 01/03/2021. My reason for appeal is as follows:• Unfair dismissal• I believe that the correct protocol was not followed in the redundancy process• I am also currently still awaiting documentation that was to be sent to me within 7 days after our telephone conversation and email on the 9th of March when I was informed of my redundancy. I would be grateful if you would let me know when and where we can meet to discuss my appeal. Yours sincerely …”[19]The claimant, when she sent this appeal, wished to be reinstated. Alternatively, if she were not to be so, she wished to use the opportunity of the appeal meeting to discuss what payments she was owed as she had not received any breakdown of the monies she could expect on termination.[20]On 24 March 2021, Ms Dunn emailed the claimant and invited her to attend an appeal hearing on 26 March 2021. The meeting was brief and lasted approximately 5 minutes. Ms Dunn conducted the meeting with the claimant and Jennifer, the nursery manager was present to take notes. During the meeting, Ms Dunn showed the claimant a copy of the letter dated 1 March 2020 and allowed her the opportunity to read it in full but did not provide her with her own copy. That letter included the following text: “…it is regrettable that I must inform you our final decision is that we can no longer provide you with employment. This letter provides notice to terminate your employment with effect from 29 March 2021. Your final pay and holiday calculation will be remunerated to you on 31 March 2021.”[21]No outcome for the appeal was provided during the appeal meeting, and at the conclusion of the discussion, Ms Dunn told the claimant that she would be in touch with the business decision.[22]Ms Dunn did not get in touch with the decision for some considerable time. The respondent continued to pay the claimant furlough monies and did not on 31 March pay a statutory redundancy payment or a payment in lieu of accrued untaken holiday outstanding as of 29 March 2021.[23]The respondent paid furlough monies for the months of April and May 2021 at the end of those months. The claimant did not chase the respondent for its appeal decision. The claimant did not write to the respondent to query why they continued to pay her furlough monies, or attempt to return those monies.[24]On 25 May 2021, the claimant lodged her complaint of unfair dismissal with the Employment Tribunal. The Tribunal issued notice of the claim to the respondent and confirmed that a response was due by 25 June 2021.[25]On 24 June 2021, the respondent sent two letters to the claimant by email which she read on that date. The first was a redundancy appeal outcome. It included the following text: “I am now writing to inform you of my decision. I find the nursery did not treat you unfairly by delaying the decision to make your role redundant as the reason for this was to keep you employed for as long as possible in order to protect your financial position. The redundancy dismissal letter was posted to you on 24 March 2021. I acknowledge that there has been a long delay in providing you with an outcome to your appeal and I apologise for this. I can confirm, however, that following your appeal hearing, there has been an increase in the uptake of places at the Nursery. Due to this change in circumstances, I am happy to confirm that the Nursery now has a requirement for your role as Administration Assistant and is able to reinstate you in your role. It is therefore my decision that the decision to dismiss you is overturned with immediate effect meaning that you are reinstated in your previous position with immediate effect. You are currently on furlough leave and will be starting your maternity leave on 28 June 2021 therefore I will contact you prior to the end of your maternity leave to make arrangements for your return to work.”[26]The other letter attached to Ms Dunn’s email of 24 June set out information about the claimant’s maternity leave and pay. It stated the claimant was entitled to 52 weeks’ Maternity Leave and to receive Statutory Maternity Pay. It included the following text: “My understanding is that you would like your maternity leave to start on 28 June 2021. If your maternity leave does start on this date, it will end and you will be expected to return to work on 28 June 2021.”[27]The claimant was paid furlough monies for the period up to 28 June 2021 on the 30th of that month. Thenceforth to the date of the hearing she has been in receipt of SMP from the respondent.[28]The claimant did not respond to the respondent’s letters of 24 June 2021. She did not write to dispute the reinstatement. She did not query the payment of furlough or SMP monies and has not sought to return the monies to the respondent. Relevant Law Was there a dismissal?
Relevant Law
[29]To succeed in a complaint of unfair dismissal, an employee must have been dismissed within the meaning of section 95 of ERA, which provides as follows: “95(1) For the purposes of this Part an employee is dismissed if (and subject to subsection (2) only if) –(a) The contract under which he is employed is terminated by the employer (whether with or without notice),(b) He is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or(c) The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[30]Where the fact of dismissal is disputed, it is for the employee to satisfy the Tribunal on this point, on the balance of probabilities.[31]A dismissal will not be effective until the employee actually knows he is being dismissed (Gisda Cyf v Barratt [2010] IRLR 1073, SC). A notice of dismissal must specify an ascertainable date from which the dismissal is to take effect (e.g. International Computers Ltd v Kennedy [1981] IRLR 28). Subject to certain exceptions where resignation or dismissal is intimated in the ‘heat of the moment’, once notice of termination has been given, it cannot be unilaterally withdrawn (Riordan v War Office [1959] 3 All ER 552).[32]There have been a number of cases in which a successful contractual appeal has led to a contract being revived with the effect that the original dismissal was extinguished (Howgate v Fane Acoustics Ltd [1981] IRLR 161, Roberts v West Coast Trains Ltd [2005] ICR 254, Salmon v Castleback Care (Teesdale) Ltd & Anr [2015] ICR 735, Folkstone Nursing Home Limited v Patel [2019] ICR 273, The Phoenix Academy Trust v S Kilroy [2020] UKEAT/0264/19/AT). This caselaw has developed in the context of contractual internal disciplinary appeal processes and the effect of overturning conduct related dismissals on appeal. Submissions[33]Mr Macdougall gave an oral submission on behalf of the respondent. What follows is a summary, not a verbatim account. Specific points made in support of his broad submission are considered in more detail in the following section headed ‘Discussion and Decision’. Mr Macdougall acknowledged that notice of dismissal, once served by the respondent could not be unilaterally withdrawn. However, he said that the fact of the claimant’s appeal was a material consideration and that the effect was that there was no unilateral withdrawal of the notice; it was, in effect done by agreement. Alternatively, if the notice was not withdrawn by agreement, the dismissal was rescinded by agreement when the appeal succeeded. It would be artificial, Mr Macdougall submitted, to ignore all that had happened since 29 March and look at the notice of dismissal in isolation. He also pointed out the claimant had suffered no financial loss.[34]The claimant gave a submission orally on her own behalf. Again, it is not reproduced verbatim but summarised here and expanded upon in the next section. The claimant’s starting point was that she had been dismissed on 29 March 2021, and she focussed her submission on whether reinstatement had occurred. The offer of re-engagement, she said, sat outside the requirements of section 138 of ERA. It had not been made within the prescribed 4 weeks.[35]Further, she said there had been a breach of trust and confidence in the employer / employee relationship which had stopped reinstatement taking place. The breach of trust relied upon was that she was told of her redundancy dismissal soon after she sent an email on 8 March to inform the respondent of her pregnancy. Finally, the fact she had received payments relating to the period after 29 March ’21 did not, in the claimant’s submission, mean that a dismissal had not taken place.[36]I drew parties’ attention to the line of authorities on ‘vanishing dismissals’ following successful contractual disciplinary appeals. Their submissions, made after consideration was given to these during an adjournment, are discussed in the following section. Discussion and Decision[37]It was for the claimant to show that she was dismissed within the meaning of section 95 of ERA. There was no suggestion by the claimant that she had resigned and held herself constructively dismissed and no evidence to this effect. Likewise, there was no suggestion that section 95(1)(b) (dealing with expiry of fixed term contracts) was engaged. What requires to be proved, therefore, is that the respondent had terminated her contract for the purposes of section 95(1)(a).[38]The claimant had recorded in her ET1 that her employment was continuing but maintained at the preliminary hearing that she was dismissed with effect from 29 March 2021. She relied upon the communications on 8 and 9 March as well as the display of the dismissal notice letter to her on 26th March at the appeal hearing.[39]It was clear and undisputed that by at least 9 March 2021, the claimant had received notice from the respondent that it was terminating her employment with effect from 29 March 2021. Ms Dunn’s email of 9 March 2021 was read on the date of sending. The wording was unambiguous and provided explicit confirmation of the date on which the dismissal would take effect: “Your employment termination is effective from 29 March 2021 and reasons cited as no administration positions are available and financially viable for the business.” (i) Was the notice issued by the respondent revoked by agreement before its expiry?[40]Mr Macdougall submits that the dismissal was not effective and suggests two potential routes to this conclusion. In the first place, he argues that in appealing, the claimant was asking for her employment with the respondent to continue. There was no unilateral withdrawal of the notice in those circumstances; it was, in effect done by agreement.[41]I don’t accept that the notice was withdrawn by agreement in this case before its expiry. The claimant lodged her appeal on 24 March. The respondent had the opportunity to, but did not, overturn the dismissal before it took effect at or following the appeal hearing on 26 March 2021. No outcome to the appeal was communicated to the claimant before 29 March 2021 or for some months thereafter.[42]I accept that Mr Macdougall is correct that, objectively, the claimant, by appealing, was asking for her employment with the respondent to continue. There was, however, no evidence at all that the respondent expressly or impliedly agreed to this request, even on an interim basis pending the appeal outcome, before the dismissal notice expired. Once the dismissal notice had expired without being withdrawn, I do not accept there was scope for it to be withdrawn retrospectively. The dismissal took effect on 29 March 2021. A separate question, to which I will return, is whether the dismissal was subsequently cancelled or extinguished by later events.[43]The first instance decision in Van den Berg v Handsam Ltd Case No 1302636/16, which was included in the respondent’s authorities is not binding but is, in any event, distinguishable on the facts. The Employment Tribunal held that there had been a mutual agreement to withdraw the dismissal where the claimant appealed and was specifically told by the manager that she remained an employee until the outcome of her appeal hearing (which took place after the original notice would have expired).[44]As things stood on 29th March 2021, I accept the situation in the present case was, as the claimant submits, that she was dismissed, the dismissal notice not having been consensually varied or revoked. (ii) Did events following the 29th March 2021 operate to rescind or extinguish the dismissal?[45]If the notice of dismissal was not withdrawn by agreement before taking effect, Mr Macdougall alternatively submits that the dismissal itself was rescinded by agreement subsequently. It would be artificial, he says, to ignore all that had happened since 29 March and look at the notice of dismissal in isolation.[46]No reinstatement was communicated within four weeks of the dismissal. The claimant points out, therefore, that the dismissal was not extinguished or rescinded by operation of section 138 of ERA. Mr Macdougall, rightly, does not seek to rely upon this provision. Section 138 is only relevant to eligibility for a statutory redundancy payment, something with which the present claim is not concerned. For that reason, and because the 4-week time scale prescribed was not, in any event, complied with, section 138 could not be, and was not, prayed in aid by the respondent. However, I do not accept – if such is the claimant’s suggestion - that because the circumstances fall outside the s.138 regime, any scope that the dismissal was extinguished for the purposes of an unfair dismissal claim is excluded.[47]I turn to the effect of the appeal outcome and subsequent events. I understand Mr Macdougall’s submission to be that the reinstatement communicated did not just revive the employment relationship from that date but had the effect of rescinding the earlier dismissal on 29 March 2021. Parties were given an opportunity to consider the line of authorities dealing with vanishing dismissals in the context of contractual disciplinary appeal procedures, and provided citations for Phoenix Academy Trust, Kirkpatrick and Howgate. After an adjournment, Mr Macdougall and the claimant addressed me on their views of the relevance or otherwise of these authorities in the present context.[48]The claimant said the type of dismissal was different and that it was not clear that the principles relating to misconduct dismissals could be applied to redundancy dismissals. She also distinguished the facts in Phoenix Academy, where the employee had said before the appeal was decided that he did not wish to return to work if successful. In contrast, the claimant said that when she began her appeal her intention had been to return. In her case, she said, the offer of reinstatement had not been made in good faith but had been made to avert her tribunal claim. She didn’t believe the respondent had observed its duty of trust and confidence towards her.[49]Mr Macdougall acknowledged that the authorities had developed in the context of misconduct dismissals but submitted that the reasoning and principles sitting behind the decisions apply equally to dismissals arising from redundancies. He explained the underlying logic of the authorities by reference to the civil right to remedy. If an employer overturns a dismissal on appeal, he said, the employee may continue in employment or not, but that in the event he or she chooses not to, the internal process would still have remedied any actionable wrong. That made sense, he said, because appeal processes cost employers time, money and effort which would go to waste if employees could simply put employers to that expense, then leave and litigate against them despite a positive appeal outcome. For these reasons, in Mr Macdougall’s submission, the same principles and logic apply equally to dismissals for redundancy as to conduct cases.[50]I accept that the principles in the caselaw could equally be applied to cases involving dismissals for redundancy. The essential reasoning in the authorities has not centred on the reason for the original dismissal but on the effect of the employee invoking the appeal procedure and of the dismissal being overturned pursuant to such a procedure. Perhaps the caselaw has developed in the context of disciplinary appeals because it may be more common for employers to have contractual disciplinary appeal procedures due to the requirements of section 3 of ERA. In any event, I agree that the underlying logic could apply equally to other types of dismissal. I note that, for example, it has been applied in the context of a capability dismissal in Thomson v Barnet Primary Care Trust UKEAT/0247/12.[51]A distinction, however, between the facts of the present case and those considered in the Roberts line of authorities is that there is no contractual appeal procedure here. There is no published appeal procedure of any sort. Reliance has been placed on the contractual nature of the appeal procedures in many if not all of the appellate cases. The logic goes that the employee agrees at the outset of their employment when they agree the contractual terms that, if they are dismissed in the future and appeal under the contractual procedure, then they may be reinstated as provided for in that procedure. In Roberts itself, the Court of Appeal agreed with the EAT’s analysis which emphasized that the appeal outcome - which in that case included a substitute sanction of demotion for the employee - was taken within the terms of the contract of employment which included an appeal procedure providing for the possibility of such an outcome.[52]I know of no appellate authority which has turned on the effect of reinstatement (or purported reinstatement) where a dismissal has been overturned pursuant to a non-contractual internal procedure, or indeed, as in the present case, where it is said to have been overturned through a process not governed by any published procedure. None was cited to me. In the first instance Tribunal decision of Gerrard v Scottish Borders Housing Association S/100930/2011, the Employment Judge ultimately decided that the appeal procedure was contractual on the facts before him, but commented that even had it not been so, he would have concluded that the reinstatement on appeal had the effect of nullifying the dismissal. By embarking on the appeal procedure, the Tribunal in that case considered the employee is deemed to consent to the matter being reconsidered by the employer (para 83 et seq).[53]The Tribunal’s approach is non-binding but is mentioned because it seems to me to be similar to that advocated by Mr Macdougall. He also says that the invocation of the appeal by the claimant objectively implied consent to reinstatement such that when the respondent agreed to reinstate, the original dismissal was rescinded by agreement. I accept that by instigating an appeal the claimant was consenting, in principle, to be reinstated pursuant to that process. She has also given evidence that this was her subjective intention when she lodged her appeal on 24th March 2021. However, in the absence of any published procedure, what were the parameters of that consent?[54]I drew parties’ attention to the EAT decision in Howgate. No submissions were made by either party with reference to this case specifically. It is a relatively old authority, but I am not aware of it having been disapproved. The facts are not entirely on all fours with the present case but I consider it nonetheless relevant. Mr Howgate was dismissed but later, following a meeting with a manager and director of his ex-employer, was ‘re-started’ 12 days later.[55]The employer in Howgate had issued a contract of employment which included a clause about grievances. It said: “Grievance Procedure if you have any grievance relating to your employment you should raise it with material controls manager. If the matter is not settled at this level, you may pursue it through A Barnes.’[56]The EAT was willing to read into the clause title the words ‘grievance and disciplinary procedure’ and to hold on the facts of the case that when the employee had discussions with management following the termination of his employment, he was exercising and to be treated as exercising a right of appeal which, the EAT held, was set out in the clause quoted. When Mr Howgate restarted, it ruled his dismissal was cancelled and there was no break in his continuity of service.[57]Mr Justice Kilner-Brown said that ‘the situation with regard to a person who appeals against a decision to dismiss him is that the intervening period has to be treated as one of suspension and the ultimate decision of the appeal process relates back to the date on which the purported dismissal was effected. If the man wins, he goes back into employment. If the man loses, he is deemed to have been dismissed on the original date’ (para 12). Later in the decision, he went on: ‘when there is an appeal process in being, the employee is to be treated as suspended without pay. It is not necessary to have that put in terms, as it was in Sainsbury’s [1980] IRLR 109 case, in the contract of employment. It is implicit in every contract of employment’ (para 16).[58]In Howgate, I accept there was a brief written procedure which the EAT was willing to interpret as an appeal procedure, whereas in the present case there was no evidence of a procedure of any sort. That said, the procedure there was sparse and gave little detail on the process to which Mr Howgate was inferred to have agreed. It gave no indication, for example, of the timescales within which appeals against dismissal might be determined or whether substitute sanctions might be imposed in the disciplinary context. It did not, for that matter, expressly specify that Mr Barnes had the power to reinstate in the event the procedure was invoked following a dismissal. In these respects, it may be considered analogous to the present case. The EAT was nonetheless firm in its conclusion that the reinstatement cancelled the earlier dismissal and that both the employer and employee had effectively agreed it would do so by virtue of an implied term ‘in every contract of employment’ to that effect.[59]The claimant referred to the case of Rembiszewski v Atkins Ltd UKEAT/0402/11/ZT. That case concerned the statutory power of the Tribunal to order re-engagement under sections 113 – 116 of ERA after the employment had been terminated and the dismissal found to be unfair. It related to an argument the employer wished to make about the impracticability of ordering reinstatement for the purposes of the relevant provisions following an allegation by the claimant of a loss of trust and confidence. It is not in point here, but I understand the claimant’s submission to be that the respondent breached her trust and confidence and that this operates to thwart the possibility of reinstatement. She founded on two separate matters in this regard at different stages of her submissions.[60]She complained in the first place that her trust had been breached by the respondent telling her of her redundancy dismissal soon after she sent an email on 8 March to inform the respondent of her pregnancy. That alleged breach of trust pre-dated the claimant’s decision to lodge an appeal. Her appeal was plain in its terms; she was appealing against her dismissal. On her own evidence, she took this action with the intent of being reinstated to her role. Whether the claimant was well advised to intimate an appeal in circumstances where(i) the ACAS Code did not apply to her dismissal; and(ii) she says the employer had breached her trust before the appeal was lodged, is not a matter for this Tribunal. I do not accept this alleged breach affects the analysis that at the time of invoking her appeal, the claimant was impliedly agreeing to reinstatement, should it be offered, and to the nullification of the dismissal in that event.[61]The other alleged breach of trust related to the delay in the appeal outcome. The claimant said that the positive appeal outcome was not only late but was issued in bad faith to avert her unfair dismissal complaint. In Howgate, the intervening period between the dismissal and reinstatement was only 12 days. If, applying the implied term referred to in Howgate, it was implicit as at 24 March 2021, when the claimant intimated her appeal, that – if successful - the intervening period would be treated as one of suspension, did the passage of months change that?[62]I accept that there may be limits on what can properly be implied as agreed between parties about the consequences of appeal and that these may vary from case to case. The question will be fact sensitive. In the present case, although there was a substantial delay between the appeal hearing and the outcome, Mr Macdougall points out that the claimant continued to receive furlough monies from the respondent without query or protest. I agree this feature of the factual matrix is material. She did so without chasing the respondent for an appeal outcome or withdrawing the appeal. The conduct of the respondent in paying the furlough monies and of the claimant in accepting them, implied, in my view, that despite the delay, the claimant continued to entertain the appeal process and insodoing accepted the potential for an outcome that may cancel the dismissal.[63]In Salmon, the EAT has held that ‘A right to appeal and have the appeal heard necessarily involves a right to be told the result of that appeal. It is certainly open to the employee in such a case to complain, if they are not told of the result, that there has in this respect been a repudiatory breach by the employer.’ In the claimant’s case, however, there is no evidence that she resigned either expressly or impliedly in response to the delay. She has, since the appeal outcome on 28 June 2021, continued to receive SMP from the respondent for which she would have been ineligible if the dismissal of 29 March 2021 had not been extinguished. She has not communicated to the respondent an intention not to return to her role, which she has been told will be open for her at the end of her maternity leave. On the facts found, I don’t consider there is scope to determine there has been a constructive dismissal for the purposes of section 95(1)(c) of ERA.[64]The claimant was not dismissed for the purposes of section 95(1) of the Employment Rights Act 1996 and her complaint of unfair dismissal is, therefore, dismissed.