Dootson v Stoves Ltd [1992] UKEAT 486_90_1711

EAT
Dootson v Stoves Ltd
[1992] UKEAT 486_90_1711 · 1992-11-17
MR JUSTICE WOOD (PRESIDENT): On the 16th May 1990 an Industrial Tribunal at Liverpool heard an application by Mr Dootson that he had been unfairly dismissed by his employers Stoves Limited. Having heard the evidence the Tribunal decided in a reserved judgment, as I understand it, promulgated on 13th September 1990 that Mr Dootson had resigned. Therefore he had not been dismissed and his application was rejected.Before the Tribunal Mr Dootson was represented by a Solicitor who was instructed by some consultants called "Rees Associates". Paragraph 2 of the Tribunal's decision indicates that he was a Solicitor with Rees Associates, but we understand that he was instructed by Rees Associates.The Company was represented by Counsel.Mr Dootson appeals from that decision. He is represented today by Mr Naylor from a different firm of consultants. It is abundantly clear that Rees Associates and Mr Naylor are responsible for the pleadings, the Originating Application and the Notice of Appeal; Mr Naylor appears today.In the Originating Application Mr Dootson sets out the story of his departure from the Company. It is set out perfectly clearly and at some length, but as one was taught in early days at the Bar, a pleading is intended to plead the facts and not necessarily to plead the law. The facts are pleaded. On the pleading of those facts, Mr Dootson, having presented a document giving 28 days, notice of resignation, alleges that that resignation was not accepted and that the matter therefore was not considered by him to be effective. Secondly, that it is clear from the documentation that at 8.45 am on Thursday, 8th February, which is only a few days after the note of the 29th January in which he indicated an intention to resign, he was told to leave the premises immediately. No help or representation was offered on that occasion, therefore there clearly was a dismissal on the 8th February, whether or not it was unfair would have to be investigated. That allegation would stand even if there had been a resignation because it was during the period of notice. Two issues, therefore, appear on the face of the pleading.The matter came before the Tribunal, as we have said, on the 16th May. The learned Chairman turned to the representatives and he asked how the matter was to be dealt with. It is clear that it was agreed by the parties that the Tribunal should make a decision on the resignation issue as a necessary preliminary issue. As is apparent from the pleadings the resignation issue would not constitute an end of the matter, it would only decide the first point. If there was no resignation of course then there would have been a dismissal in the event. But even if there was a resignation one needed to look at the terms of the resignation to see whether the second issue raised on the pleadings was a live issue. It seems to us quite clear that no one observed that the second issue was on the pleadings, and no one observed that if looked at carefully, the issue of the resignation did not decide the matter. Thus the Tribunal proceeded upon the basis that if the resignation was valid that was an end of the matter, and that on the face of the pleading is clearly inaccurate.The Hearing also took a somewhat unusual course in that a bundle of documents were submitted and then the Applicant gave evidence, at the end of his evidence in chief the Chairman asked if anyone wished to cross-examine or call any further evidence and everyone stated that they did not. So that the decision is based solely on the evidence of the Applicant and of the bundle of correspondence. There is no indication in the decision that the Applicant was disbelieved in any way. The Tribunal saw and heard him, and the documentation by way of letters.The Applicant had been working for this Company and its predecessors for some years since 1975, he had continuity of employment. His note of resignation is dated 29th January. In the previous October a Financial Director was dismissed and on the 2nd January a new Financial Director, a Mr Bates, took over. In the interim the Applicant had assisted as best he could, but not withstanding overtime and hard work the Department was getting behind with its work. It was clear that the relationship between Mr Bates and the Applicant was not a good one and was to be contrasted with a relationship between the Applicant and Mr Craythorne, the Managing Director, which clearly was a sound one, indeed, a friendly one.On the 29th January, that is some 4 weeks after his arrival a conversation took place between Mr Bates and the Applicant, there were pressures upon the Applicant and criticisms Mr Dootson clearly felt that matters were coming to a head and he said "he had had enough of this and was thinking of handing in his notice" to which Mr Bates replied "that is your decision". That upset the Applicant even further who had expected some discussion and he wrote out his notice. The letter reads:

"Mr Bates

Financial Director and Company Secretary - Stoves Ltd

cc:Mr J R Crathorne

Managing Director and Chief Executive

Stoves Ltd

Dear Sir

Under the present circumstances, I feel I have no alternative other than to terminate my employment with Stoves Ltd.I should be grateful if you would accept this letter as one month's notice of termination.

Yours faithfully

(Sgd. J Dootson)"

It so happens that the one month is the notice which was in his contract of employment. The time when that was handed to Mr Bates is uncertain, but at approximately 6 pm he gave the original letter to Mr Bates saying "there is my resignation". He then went to see Mr Craythorne and gave him the copy, also in a sealed envelope saying "that he had to hand in his resignation".The evidence given by Mr Dootson about this meeting was as follows, as we see from the Notes of Evidence:
"He said, `I will not accept your resignation; I will accept anyone else's but not yours'. He stuffed the envelope unopened, in my jacket pocket.
I was very upset.As I walked away he said, `I will give you a hard time in future, John' - but it was said as a joke.He said `I'm used to that here'.

I believed that was banter."

Thereafter, the Applicant, Mr Dootson, believed that his resignation had been rejected; it was at an end; he thought it was all forgotten, nothing was said to him about resignation and he assumed that it was all cancelled. However, on the 6th February at the request of Mr Bates, the Applicant went to see him at 2 pm. Mr Bates said:
"`Concerning your letter of resignation - I accept'.
I [the Applicant] said to him, `I am absolutely shocked;Mr Craythorne has already rejected this, as you're already aware'.He said, [Mr Bates] `You made the decision; it's your decision; that's the end of the matter'."Mr Dootson went home and decided to do something about it, he wrote to Mr Craythorne. As he told the Tribunal, his assumption was that Mr Craythorne's decision as Managing Director, was final. He handed the letter also dated the 6th February to Mr Craythorne. He says in that letter, in the material parts:
"You will recall that, one evening last week, I told that, out of sheer frustration, I had handed in my resignation.
You told me that you would not accept this resignation.Nevertheless, Jim Bates has now accepted it and told me that I must leave Stoves Ltd on February 28th.I feel that I have been forced into this position and am very, very sad and upset that I have treated in such a harsh way after more than fourteen years extremely hard work."and then he goes on to indicate his hard work over the years and how he is extremely distressed and unhappy. He talks about the cancellation of a holiday, he says:

"I will not ask Jim Bates because I feel sure that he will refuse my request"

and then he goes on into other things.On the 6th February Mr Bates writes saying:
"I acknowledge receipt of your letter of resignation . . . I note that your letter gives one month's notice and therefore confirm that your date of termination will be effective 28th February 1990.
It is unfortunate that you have reached this decision but I am sure it is one which you have given careful consideration and I therefore wish you well for the future."That letter is written by Mr Bates after he has seen Mr Dootson and after he knows that the conversation took place between himself and Mr Dootson. The last paragraph, therefore, could be considered somewhat disingenuous.The Applicant then, on the 7th February, went to see Mr Craythorne again. He said he did not want to leave, Mr Craythorne on that occasion said:
"`You've upset my man'.
He said, `I suggest you see Jim Bates tomorrow morning and see if there is any room for movements and then see Personnel'."There is no grievance procedure in this Company and it is clear that Mr Dootson's evidence ended in this way.
"I didn't state to anyone that I wished to withdraw my resignation; I was under the firm impression that the resignation had been rejected, and that was the end of the matter.
Mr Craythorne never suggested that I should write withdrawing my resignation; I am not a Solicitor."The reasoning of the Tribunal on those facts is to be found in paragraph 4 of the decision, the Tribunal say:
"The issue for the Tribunal was whether the applicant was dismissed or resigned."
Pausing there for a moment that indicates that the Tribunal through perhaps no fault on the part of the Members of the Tribunal, because it was not directly drawn to their attention, were looking upon this as resignation or dismissal without the consideration of the second issue on the pleadings to which we have already referred. They go on:
"In the circumstances and in the light of the applicant's evidence, and the facts we have found, particularly the agreed fact that the applicant had given written notice terminating his own employment, the Tribunal were unanimously of the decision that the applicant had resigned his employment. It is well established law that once an employee has given notice he cannot withdraw it unilaterally, and unless the employer consents to the withdrawal the notice will take effect (Brennan v. C Lindley & Co Ltd (1974) IRLR 153, and the respondents also relied on other authorities). On the applicant's own evidence we are satisfied that there was no agreement between the parties that the resignation was to be regarded as withdrawn. On the evidence of the applicant we are satisfied that the statement by Mr Craythorne referred to in paragraph 3(d) above did not have the effect of terminating the resignation, in law."
The issue here is whether, on that first point of resignation, as Mr Morris has explained to us, is whether, judged objectively there was an agreement to withdraw the resignation.The earlier authorities do not consider the problems raised by some later authorities, namely whether or not the heat of the moment should be considered in these cases, this was clearly a case where the Applicant, Mr Dootson, was extremely upset, he was exasperated. As he says in his letter "out of sheer frustration I handed in my resignation". It was therefore a case where one needed to be very clear and careful in the analysis of the evidence and of course it was only, we repeat, the evidence of the Applicant and the correspondence that was before the Tribunal.Mr Dootson says that he understood it was all at an end. He is not a lawyer, from the layman's point of view it seems to be perfectly clear that he was entitled to think it was at an end. Our problem is that we must look at it from the legal aspect. We have no doubt where the merits lie. The facts are these, the evidence as we have recited it is that, given by the Applicant of his conversation with Mr Craythorne. So, Mr Craythorne has said "I will not accept your resignation, I will accept anyone else's but not yours" and he puts it back in the Applicant's jacket pocket, the Applicant does not take it out and hand it back to Mr Craythorne, as Mr Morris put it as an example, the Applicant could have walked out and said, well, I do not care, nevertheless that is my resignation you cannot turn it back on me, but he did not. He allowed it to be put back in his jacket pocket and he accepted it. He was also very upset. Then, although said in banter, it is interesting that the next remark could well be understood as indicating that Mr Craythorne also had so regarded the resignation, namely, as at an end. He said:

"`I will give you a hard time in future, John'"

that does not refer to 28 days notice, he says "in the future" and Mr Dootson heard that and he thought it was a hard joke as to the hard time, but as to "the future". It was in our judgment clearly indicative that Mr Craythorne took the view that there was a future for Mr Dootson with the Company. Moreover, the point is taken that the wish to withdraw from the resignation was not communicated to Mr Bates. That is not so, the evidence is that on the 6th February that Mr Dootson said to Mr Bates:
"`I am absolutely shocked;

Mr Craythorne has already rejected this, as you're already aware'."

and Mr Bates did not deny that. He had been aware, and probably was aware within a very short time, he gave a copy of the note to Mr Craythorne, so Mr Bates must have been aware of what was going on and although Mr Dootson did not himself go to see Mr Bates and ask permission to withdraw it, in the ordinary world of industry it seems to us that this situation was one in which the Tribunal might very well have found that there was an agreement to withdraw that resignation. It is said, however, that that is a matter for them and not a matter for us, it is a matter of fact. In fact, it is probably a matter of mixed fact and law, the proper interpretation of admitted fact; at the risk of being boring, there was only the evidence of the Applicant. He made several things quite clear, one, that when he went to Mr Craythorne he was given back his resignation letter and he accepted it back. Secondly, that Mr Craythorne, who was agent for the Company referred to his future in the Company, and he thought that was the end of it. Thirdly, that Mr Bates was well aware of what was going on. It seems to us that it is an error on the interpretation of the facts that this was a resignation.However, lest we be wrong in that, lest it be said that we are interfering with a finding of fact by a Tribunal, there is the second point. The second point is that the dismissal, there clearly was a dismissal on the 8th February, was not considered. That was an error therefore in the appreciation of the issues involved. Of course, no tribunal can foresee every single issue and it relies on the Advocates before it. It seems to us here though that the issue was very clear and it was not a question of anyone being misled; the issue was overlooked, it was there on the pleadings and it was overlooked. Therefore, the point taken by Mr Morris, very properly taken here, that it is to raise a new point to say that there is still the issue of dismissal is a misunderstanding.What has happened here is that the Tribunal have dismissed an application without considering a point that was raised in the pleading. It is not a question of a new point being raised here now, the point was made in the original pleading and has not been dealt with. Therefore, we are quite satisfied that that matter should be dealt with and there is an injustice to the Applicant if it is not dealt with. We intend to send this back, and it may very well be, that Mr Dootson, in the end will fail totally.That is not a matter for us but the two points taken, on the resignation it seems to us that the facts looked at as a whole, and looked at objectively, clearly indicate that Mr Dootson was entitled to take the view that he had reached an agreement with the Company that his resignation should be withdrawn.Secondly, there is the issue of dismissal on the 8th February and that matter has yet to be examined. The finding on the resignation did not resolve the dismissal on the 8th February which is during the period of notice. So that even if we are wrong on the issue of resignation, nevertheless, this is not a fresh point taken on appeal this is a point which was raised before the Tribunal in the pleadings but which everyone overlooked and which still has to be dealt with. The decision on resignation did not put an end to the case. It was one point but in the circumstances, in order to do justice between these parties, we take the view here that this whole matter should be remitted to be heard before a different tribunal. Therefore the appeal will be allowed and the matter remitted for such directions as may be given by the Regional Chairman..