Mr D Sharkey v Represented by:- Mr D Stillie – Solicitor Dalriada Scaffolding Ltd — 2017

Mr D Sharkey claimed unfair dismissal arising from events on 5 October 2016 at a site in Kilmarnock. The respondent’s case was that he resigned. The tribunal accepted that the employment ended on that date, but the factual dispute was whether that happened by dismissal or by resignation. It heard evidence from the claimant, Mr Kevin Haywood, Mr Colin Beattie and Mr Jarad Boyd, and it noted that the claimant’s ET1 did not plead constructive unfair dismissal even though that was later mentioned in submissions.

The tribunal found that there had been a heated exchange between the claimant and Mr Beattie about progress on the job and whether the work was “on a price”. It accepted that Mr Beattie said, “If you don’t like it you can f*** off,” but concluded that the remark was conditional and was not a clear dismissal. The tribunal considered the claimant’s and Mr Haywood’s understanding of the exchange, and Mr Boyd’s evidence about what was said at the yard afterwards, including the tribunal’s finding that it was more likely than not that the claimant told Mr Boyd, “You can ram it.”

Applying the authorities it had discussed, including Futty and Tanner, the tribunal concluded that the words used were not unambiguous words of dismissal and that the claimant was not entitled to treat what was said as a termination of employment. It found that Mr Beattie had, in effect, given the claimant an option to stay or leave if he did not like the job. Because the tribunal found there was no dismissal in law, the unfair dismissal claim was dismissed.

The tribunal added that if it had found a dismissal, it would have increased any award by 25% for failure to follow the ACAS procedure and would have made a 50% reduction for contributory conduct. However, because it concluded there was no dismissal, no compensation or other monetary award was made.