Mr S Hussain v Kashmir Crown Bakeries Limited HELD: By CVP — 2021

The claimant, Mr S Hussain, had been employed as a machine operator since 4 April 1998 and had been absent on sick leave from 25 October 2019 until 15 March 2020. The case turned on whether he was expressly dismissed when he attended work on 16 March 2020. The tribunal recorded that both the unfair dismissal claim and the holiday pay claim depended on proof that the respondent terminated the employment on that date.

The tribunal preferred the evidence of Mr Khan to that of the claimant on the disputed conversation. It found that Mr Khan was a factory worker without authority to dismiss and accepted his account that the claimant had arrived without prior notice, had been directed to another department because the pastry shift had already been organised, and had then asked what authority Mr Khan had. The tribunal found that the transcript of the covert recording did not contain words communicating dismissal, and it considered the claimant's later letters and pleaded case to be inconsistent with the transcript and with the evidence about who was at work and who could dismiss.

The tribunal relied on Fitzgerald v University of Kent at Canterbury and the principle that a dismissal is only effective once communicated. It also noted the respondent's evidence that any dismissal would be conveyed by letter from Mr Saleem, who was the person with authority to dismiss. On that basis the tribunal found that the claimant had not proved he was dismissed on 16 March 2020, and it dismissed both complaints. Because no dismissal was proved, the claim for accrued unpaid holiday pay under regulation 14(b) of the Working Time Regulations 1998 also failed.