THE INDUSTRIAL TRIBUNALS

CASE REF: 5057/09	

CLAIMANT:                  	Ross Bowyer     		

RESPONDENT:	Finrone Ltd	

DECISION

The decision of the tribunal is that the claim is dismissed.

Constitution of Tribunal:

Chairman (Sitting Alone):   Mrs Watson		

Appearances:			
The claimant appeared and represented himself.
The respondent was represented by Mr McCann B.L. instructed by Oliver Roche & Co., Solicitors.

ISSUE FOR DETERMINATION

At their meeting on 13 February 2009, was the claimant summarily dismissed by the respondent in breach of the term of his contract regarding notice or did he resign?

SOURCES OF EVIDENCE

1.	At the outset of the hearing, I explained to the claimant that because he was not legally represented, it was very important for him to be aware of what he needed to do to prove his case. It was essential that he give a full account of his version of events leading to his claim. In the circumstances such as these, where there were two conflicting accounts of what happened at the meeting in question, a claimant bore the evidential burden. This meant that it was important that the claimant gave the detail of his version of the events of the meeting so that the tribunal could conclude that his version of events was more likely to be true than that of the respondent. 

2.	The claimant gave oral evidence and was cross examined by Mr McCann. The claimant had also provided the tribunal with copies of the documentation provided to him by the respondent at his final interview prior to appointment. This had been written by Gordon Forbes. He and his wife, Sharon, were the directors of the respondent company and the claimant’s employers. The documentation set out terms which were to be the basis of the contract of employment but had not been properly drawn up or signed by either party. 

FINDINGS

3.	The claimant read the statement of his claim contained in his originating application and adopted this as his evidence to the tribunal. He then referred to the terms contained in the draft contract. This stated that the salary for the post was £40,000 per annum. The claimant explained that when he took up his employment on 23 June 2008, it became apparent to him that there were deficiencies in relation to human resources in the company. He took over this function with an assistant and negotiated an increase of £10,000 in recognition of his extra duties. This was in about September 2008. 

4.	The draft contract also stipulated that the notice period was 3 months, applicable to either party. This was how the claimant had calculated that the sum owed in lieu of notice was £12,500 as set out in his originating application. 

5.	The claimant was very clear in his evidence that he believed that he had had a good working relationship with Gordon and Sharon Forbes and had on occasions been told that he had demonstrated his worth to the company as evidenced by his increase in salary. 

6.	The claimant’s evidence was that as far as he was concerned, “progress was being made, not at the rate that anyone wanted. It was slower, but there was good reason for that, but I had no issue with my employer and I believed they had no issue with me.”

7.	The claimant gave evidence that for some two weeks before he left, he had noticed that Sharon Forbes had made some ‘slight criticisms’ of him and a few ‘niggling’ comments. 

8.	On 13 February 2009, Sharon Forbes telephoned the claimant as usual and asked him for details about the bank balance. She then asked the claimant to come to a meeting with her and her husband that afternoon to discuss that information. When he got there it was like ‘a bolt out of the blue’ when he realised that his employers wanted rid of him. 

9.	I asked the claimant several times what matters had been put to him by his employers at that meeting with regard to the performance of his duties. The claimant did not give an answer to this question despite being reminded several times how important it was for him to give a full account of his version of what had taken place at the meeting.  

10.	In cross examination, the claimant was asked about the purpose of the meeting in question. His responses were equivocal. He could not remember any of the detail of the matters Sharon Forbes would give evidence about in relation to the deficiencies in his performance but he did not deny that they were correct. 

11.	Despite the fact that he had given evidence that the matters discussed at the meeting had been a surprise to him, the claimant then gave evidence that he had told his wife the previous week that things were going ‘pear shaped’ at work and earlier that morning he had told a colleague not to be surprised if he did not return to work after the meeting. Indeed, for several days prior to the meeting, he had been clearing his desk and had even removed his teacup. 

12.	When asked why he had done this, the claimant said that he sensed the way things were going to go at the meeting and that when the Forbes had parted company with him, he did not want to be in the embarrassing position of having to return for bits of paper.

13.	 Mr McCann suggested that the claimant knew that he had been asked to the meeting to explain why the bank balance he had quoted to Mrs Forbes had been wrong by £30,000 and that a list of cheques he had provided to her had not included several that he had known Gordon Forbes had written. This misinformation had caused Mrs Forbes problems with the bank manager. 

14.	In response to this suggestion and the respondent’s version of events that was put to him, the claimant maintained that he could not remember or he could not recall or that he only had a vague memory of these matters. I reminded the claimant that he was on Oath and the importance of his evidence.

15.	In response to further questions by Mr McCann, it was clear to me that the claimant in his evidence had given an inaccurate and often contradictory version of the events of the meeting. I was satisfied  that rather than  being summarily dismissed, the respondent had sought to have the claimant work his Notice Period and that they were not prepared to pay him unless he did so. 

16.	As stated earlier, the claimant was required to demonstrate to the tribunal that it was more likely than not that he was summarily dismissed and that the respondent was thereby in breach of his contract to pay him £12,500 in lieu of notice. The evidence given by the claimant was contradictory, evasive and equivocal and could not be relied on. The claim is dismissed.  

Chairman:

Date and place of hearing: 4 September 2009 at Omagh

Date decision recorded in register and issued to parties: