THE INDUSTRIAL TRIBUNALS

CASE REF: 3831/09

CLAIMANT: 		Ryan Sands

RESPONDENTS: 	Julian Carson t/a Pulse Clothing

DECISION 

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.

Constitution of the Tribunal:

Chairman:  	Ms F Oliver

Members: 	Mr J McAuley
Mr J Nicholl

Appearances:

The claimant was represented by Messrs Peter Bowles & Co. Solicitors.

The respondent appeared in person and represented himself.

1. 	Sources of Evidence

The tribunal heard oral evidence from the claimant and from the respondent.  The claimant also handed in pay slips, copies of text messages between the parties and a proposed schedule of loss

2. 	The Claim and the Defence

The claimant claimed that he had been unfairly dismissed by the respondent.  The respondent denied that the claimant had been dismissed, arguing that the claimant had left employment and not returned.  

3.	Issues

The issue for the tribunal was whether the claimant had been dismissed and if he had been dismissed, was his dismissal fair.

4.	Analysis of the Evidence

The case turned on the analysis of the events and texts of the evening of 20 December 2008 and the morning and afternoon of 21 December 2008.  It was clear that there had been a breakdown in communication between the parties which contributed to the situation which arose.  However, there was some conflict in the evidence regarding the actions of the claimant on the evening of 20 December 2008.  We did not find the claimant’s version of events entirely credible and we find that the respondent was entitled to believe that the claimant had been out with friends until the early hours of the morning and had simply not turned up for work as a result of this.

5.	Findings of Fact

(1)	The claimant commenced part time employment with the respondent in September 2004.  He worked as a salesman with a supervisory role.

(2)	The claimant worked during some evenings from 6pm to 9pm and on a Saturday and Sunday for various shifts.  He was paid £5.82 per hour.

(3)	His weekly wages varied between £23.08 on 30 October 2008 and £86.55 on 18 December 2008 indicating that there was significant variation in the hours worked each week.

(4)	The claimant was given hours on a mutually beneficial basis and was provided with details of his hours in advance of their requirement.

(5)	The claimant was due to work on Saturday 20 December 2008 from 9am until 5pm and on Sunday 21 and Monday 22 December 2008. 

(6)	On Friday 19 December 2008, the claimant contacted his supervisor Emma asking for a change in his shift for the following day and asking for the mobile number of a fellow employee who might have been willing to change shifts with him. 

(7)	The claimant was unable to arrange alternative cover for his Saturday shift. In the early hours of 20 December at 5.47am the claimant sent a text to his supervisor, Emma stating:

 “Emma, I’ll not in tomorrow. Ryan”

Emma replied stating:
 “Txt message nt acceptable.  Need fnecall b4 9 with explanation.”

And then sent a further message at 8.11 am stating:

“u of all ppl should no nt2let us down th last sat b4 xmas.  Have been spkng2gareth.  If you dnt cum in 2dy ther wil b no further hours 4u.  We need ur key key dropd in 2.”

(8)	The claimant did not attend for work at his scheduled time of 9am.  The respondent tried to contact the claimant on several occasions without success during the morning. The respondent sent a further text at 1.30pm:
 
“I seriously never expected this from you!!! Make sure to get our keys back before 5.”

		The claimant replied at 3.26pm stating:

“I expected more out of myself to, I’m just back into the town, I was up home! I’m trying to get parked! If u would meet me in California coffee or somewhere, i don’t want to be sacked in front of everyone!”  

The respondent replied stating:

				“i’m too busy.  Leave the keys in g star if you want.”

To which the claimant replied

“no problem, I’ll drop them off now! Thanks for everything and sorry! Ryan”

(9)	The claimant dropped the keys off as suggested and did not contact the respondent again.   He did not go into work on Sunday or Monday as he had been scheduled to do.

(10)	The respondent was informed by other staff members that the claimant had been out late with friends on the Friday night and he was seen with friends in the early hours of Saturday morning.  

(11)	The respondent assumed that the claimant had left his employment and did not intend to return.  The respondent did not therefore follow any procedures in relation to dismissal as he did not consider that a dismissal had occurred.

(12)	The respondent gave evidence that in the retail business, this is not unusual and staff often leave and are never heard from again

6.	The Law

Article 126 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to be unfairly dismissed.

7.	Application of the Law and Findings of fact to the Issues.

The tribunal did not consider that the text message sent by Emma at 8.11 am amounted to a dismissal.  It was obviously sent in the hope of persuading the claimant to attend work on what was going to be one of the busiest days of the year.  It was an indication of a decision that was going to be taken not that a decision had been taken.  The respondent did not reply to this message and did not attend for work.  He may well have fallen asleep as he indicated but this would not have been apparent to the respondent who was trying to contact him without success.  If the claimant had contacted the respondent to inform him of this and to explain in full the reasons for his failure to turn up for work and failure to respond to attempts to contact him, it is quite possible that a different series of events may have occurred.  He did not do this and the respondent was entitled to assume that the claimant had decided not to return.  Indeed the two final text messages from the claimant suggest that the claimant feels that he let his employer down and is sorry. 

The claimant has not proved that he was dismissed by the respondent and we therefore dismiss his claim.

Chairman:

Date and place of hearing:	23 September 2009, Belfast.

Date decision recorded in register and issued to parties: