Mr D White v Forest Master Limited — 2023

Mr White was employed from 3 February 2020 as a Sales Executive/Administrator. After Mr Peter Johnson became managing director on 21 March 2022, the working relationship became difficult. The tribunal found that the claimant took on trade-show duties in April 2022 with agreed commission and expense arrangements, attended three trade shows in summer 2022, and resigned with immediate effect on 31 October 2022, the working day after the disciplinary meeting of 28 October 2022.

The tribunal found that Mr Johnson repeatedly threatened to sack the claimant, handled the 28 September 2022 and 28 October 2022 disciplinary processes in wholesale breach of the respondent's own Disciplinary Policy and Procedure, and did not give the claimant a fair opportunity to answer serious allegations. It accepted the claimant's explanations on the TR1 code allegation and the other commission allegations, found no reasonable basis for allegations of fraud or dishonesty, and found no proper grounds for withholding the claimant's trade-show commissions. The tribunal concluded that Mr Johnson was using disciplinary action to intimidate the claimant and assert managerial authority, without reasonable or proper cause.

On that basis the tribunal held that the respondent had breached the implied term of mutual trust and confidence and that the claimant had been constructively dismissed within s.95(1)(c) ERA 1996. It further held that the dismissal was unfair because the respondent did not show a potentially fair reason under s.98 ERA 1996. The tribunal found the resignation was in direct response to the repudiatory breaches and that the claimant had not affirmed the contract, as he resigned on 31 October 2022 immediately after the final written warning hearing.

The tribunal also held that the claimant had been wrongfully dismissed because there was no finding that he was himself in repudiatory breach and he was therefore entitled to notice damages, although the judgment did not determine the notice period or quantify that loss. On unlawful deduction from wages, the tribunal held that unpaid commissions earned on trade-show sales were wages within section 13 ERA 1996 and that withholding them was unlawful. The judgment recorded the claimant's commission claim as £340 for at-show sales and £49 for after-show sales, and listed a remedy hearing rather than fixing a final monetary award.