Kemac Engineering Co (Braintree) Ltd v Goldsmith [1997] UKEAT 870_96_3001

EAT
Kemac Engineering Co (Braintree) Ltd v Goldsmith
[1997] UKEAT 870_96_3001 · 1997-01-30

JUDGE COLIN SMITH QC :

This is an appeal by the employers, Kemac Engineering Co. (Braintree) Ltd, against the decision of an Industrial Tribunal held at Stratford on 23rd May 1996 when the Industrial Tribunal held that the applicant before them, Mrs J Goldsmith, had been dismissed by the appellant company on 6th September 1995. Extended reasons were sent to the parties on 17th June 1996.As appears from the Industrial Tribunal decision, the respondent, Mrs Goldsmith, was employed by the appellants as Finance Director and book-keeper from March 1992 until 6th September 1995. The Industrial Tribunal set out the material facts leading up to the events of 6th September 1995, in our judgment, very clearly and thoroughly in paragraphs 2 to 8 of their decision. It appears from all of those matters that by August 1995 relations had become strained between Mr Goldsmith, the respondent's husband, who was the managing director of the appellants, and Mr Peter Maddocks, a director who had originally set up the company. Another director who was involved was a Mr Rippingale. The Industrial Tribunal then go on to describe how on 6th September 1995 when Mr Goldsmith arrived at work he was dismissed by Mr Maddocks. The Industrial Tribunal found in paragraph 8 that Mr Goldsmith thereupon rang his wife, the respondent, saying he had been sacked and asking her to come in. However, the Industrial Tribunal did not find that he had suggested to the respondent that she should leave her employment.It was in those circumstances that the respondent arrived at the office to be faced with Mr Maddocks. There was a conflict of evidence as to what took place, but the Industrial Tribunal clearly found that they had preferred the evidence of the respondent with regard to the conversations which had ensued between her and Mr Maddocks to that of the appellants' witnesses.The Industrial Tribunal records in paragraph 9 that an argument ensued, particularly relating to the salaries paid to the respondent and her husband. The Industrial Tribunal then found that the following exchange took place between the respondent and Mr Maddocks, namely:- The respondent "where does this leave me?" Mr Maddocks "you are out too" then after a hesitation "I am not sacking you, but you haven't got a job and you are not doing the books anymore". Mrs Goldsmith, the respondent, then replied "As far as I am concerned you are sacking me". The Industrial Tribunal found that at this the respondent collected her things and left, and that neither Mr Maddocks nor Mr Rippingale made any attempt to contact her either orally or in writing thereafter.The Industrial Tribunal then went on to find that what had taken place amounted to a dismissal of the respondent. They set out their reasons very clearly in paragraph 13 of their decision. They found that the words "I am not sacking you" must be read in context, and were in effect, overridden by the words "you are out too" and "you haven't got a job and you are not doing the books anymore" together with all the other circumstances. They took into account the circumstances that Mr Maddocks had made no attempt to call the respondent back, and that he had not written to her or communicated with her in any way, and that he never told her that he was intending to investigate the matter further, nor had he ever mentioned either to her or anybody else the word 'suspension'.The Industrial Tribunal went on to say that they could not see any relevance in the decisions of Sothern v Frank Charlesly & Co [1981] IRLR 278 or BG Gale Ltd v Gilbert [1978] IRLR 453 and they distinguished the instant case from the case of Martin v Yeoman Aggregates [1983] IRLR 49 .In our judgment, having listened carefully to the submission made to us, we have unanimously concluded that the Industrial Tribunal's decision here cannot be faulted. It was submitted to us that the words "you are not sacked" are so powerful and so clear that as a matter of law they cannot be overridden or modified by words such as "you are out too", "you haven't got a job", or "you are not doing the books anymore". The submission was made that upon those words being used, i.e., you are not sacked, the inevitable result must be that there cannot be an actual dismissal, but at most a constructive dismissal requiring acceptance by the respondent. The submission is made that since at the hearing the respondent's advisers expressly disavowed that they were putting the case on the basis of constructive dismissal, the Industrial Tribunal reached the wrong conclusion.In our judgment this argument, with respect, is entirely specious. In our judgment the law is that if the words taken as a whole contain an ambiguity, then the proper approach is that so clearly set out by Tudor-Evans J in giving the judgment of the Employment Appeal Tribunal in J J Stern v Simpson [1983] IRLR 52 at paragraph 6 on page 53, namely:
"... Whether one looks at the words in their context or whether one adopts Counsel's approach, having decided that the words are ambiguous, one applies the objective test propounded in Sothern v Franks Charlesly & Co may not make much difference in the end. However, having considered the authority, we have come to the conclusion, particularly also bearing in mind observations of Arnold J in Gale v Gilbert [1978] IRLR 453, that the proper way in which to approach the question is to construe the words in all the circumstances of the case in order to decide whether or not there has been a dismissal."
In our judgment, that is exactly the approach which the Industrial Tribunal took here. Perhaps they should not have said that the cases of Sothern and Gale were not relevant, since they both contain very valuable statements of principle, but that does not in any way affect the correctness, in our judgment, of their decision. Further, we entirely agree with their reasoning for distinguishing the case of Martin v Yeoman Aggregates . In our judgment, it would have been as plain as a pikestaff to anyone hearing what was said to the respondent and seen what happened thereafter, that the appellants were dismissing the respondent on 6th September 1995. There were overwhelming grounds for so finding, once the proper test was applied to the words used and the relevant circumstances. The Industrial Tribunal applied exactly that test and reached exactly the right conclusion. This appeal must be dismissed. Accordingly we uphold the decision that there was a dismissal here, and direct that the hearing as to whether it was an unfair dismissal, and if so as to remedies should take place as soon as may be convenient before the same tribunal.