In a decision dated 1 December 2009, the Guernsey Employment & Discrimination Tribunal (“the Tribunal”) rejected an employee’s claim that he had been summarily dismissed by his employer but upheld a complaint of constructive unfair dismissal based on a breach of trust and confidence.
Mr Sebastian Anflous had worked for J W Martel & Son Limited, a building firm, for eighteen months when he was required to remain on site as a roof was dismantled. Mr Anflous was concerned that the roof was constructed from asbestos. After calling the Health & Safety Executive to obtain advice, Mr Anflous raised his concerns with his boss, Mr John Martel. Mr Anflous then refused to continue working as he believed he might be exposed to asbestos dust.
There was a heated exchange between Mr Anflous and Mr Martel, culminating in Mr Anflous leaving the site in the belief that he had been fired. This belief was based on Mr Martel’s remark (as Mr Anflous remembered it) to the effect: “If you’re not willing to work with these sorts of dusts then I don’t see a future for you in the Company”.
Mr Martel’s recollection differed from that of Mr Anflous. Mr Martel recalled saying to Mr Anflous that he may not be best suited to the building trade if he was going to be concerned about dust. Mr Anflous contacted Mr Martel three days later to suggest that he might like to consider making him redundant. Mr Martel replied that Mr Anflous was still employed and could come back to work whenever he wanted.
Mr Martel then followed this up with a letter giving Mr Anflous a limited period to return to work. Mr Anflous declined to do so on the basis of Mr Martel’s earlier remarks.
The Tribunal found that:
1. Mr Anflous genuinely believed that the roof was constructed of asbestos. As such, his concerns should have been dealt with appropriately by his employer.
2. Despite testimony from Mr Martel that the company took a serious view of health and safety matters, this was not borne out by the facts. From the evidence, the Tribunal concluded that Mr Martel had avoided dealing with Mr Anflous’ health and safety concerns.
3. Whilst Mr Martel’s comments regarding Mr Anflous’ future (or lack of it) with the Company were insufficient to amount to an actual dismissal , they might be seen as a “last straw” event in the context of a constructive dismissal (where an employee is left with no option but to resign.
4. The notion of a constructive dismissal (based on breach of the implied term of trust and confidence) was supported by Mr Martel’s disregard for the health and safety duty owed by every employer to its employees.
Two interesting questions are raised by this case. The first question is, how is a Tribunal likely to construe ambiguous language when an employee is alleging that he was dismissed and the employer is denying this? The second is, can an employer reverse a dismissal once notice has been given?
Taking first the question of ambiguous language, a Tribunal will find that there has been a dismissal in circumstances where: (a) the employee can show that he genuinely believed that he was being dismissed; and (b) a “reasonable employee” would also have believed himself to have been dismissed.
In a leading UK case on this point, the Employment Tribunal held that the words “If you don’t like the job, you can **** off” did not amount to a dismissal as this type of language was typical of “the robust language used in the dock yard” (where the employee worked). In the context of the employee’s particular place of work, the employer’s words were the equivalent of “If you don’t like the job, you can clock off”.
Reversing a dismissal
On the separate question of whether an employer can reverse a dismissal, once notice of dismissal has been given it is generally not open to the employer to backtrack and withdraw notice. However, there is an exception to this general rule.
If an employee is dismissed in the heat of the moment, the employer can retract the dismissal provided that it does so quickly, as soon as tempers cool. In one case, retracting an oral dismissal within five minutes was held to be soon enough. Leaving it until after the employee had left the workplace is likely to be too late.