In person For the v Mr Neil Adams, Partner — 2023

The tribunal heard the claimant’s complaint that she had been unfairly dismissed from her part-time shop assistant role with the respondent bookshop. The respondent said she resigned on 9 December 2021. The tribunal accepted the employment ended on that date, but found on the balance of probabilities that the claimant was not dismissed and instead resigned by her conduct when she left the premises after collecting her belongings and handing back her key.

In reaching that conclusion, the tribunal relied on the surrounding events in late November and early December 2021, including the claimant’s decision to leave work early on 27 November, her conduct on 30 November when she left after about 15 minutes and told Mr Adams to “fuck off”, and later exchanges with the partners about the shop door being open, her refusal to speak to Mr Asplin, and her comment that he did not care about the business and that the shop would close. The tribunal considered that her behaviour indicated she did not intend to continue working on 9 December 2021.

The tribunal set out the unfair dismissal provisions in section 98 ERA 1996, including section 98(2)(b) on conduct and section 98(4) on reasonableness. It found no dismissal, so the unfair dismissal claim failed. It also recorded that the claimant did not pursue any claim based on fundamental breach of contract.

The tribunal added an alternative finding. If it had accepted that the claimant was dismissed, it would have found the dismissal procedurally unfair but not substantively unfair. It said the claimant’s swearing at Mr Adams and other disruptive conduct amounted to blameworthy conduct, and that in a small retail environment the disharmony was significant. It further found that any compensation would have been reduced to nil, because a fair disciplinary process based on those matters would have led to summary termination or dismissal for some other substantial reason based around that conduct.