Cropper on dismissals-15
Page 42
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Choosing your words carefully
A DRIVER employed by Charles Armstrong & Son (Haulage Contractors) Ltd, of Rotherhithe, London, SE14, reported for work as usual at 6.30am. At about 9am he was told to take over a vehicle used on a regular run to St Neots as the normal driver was ill.
He refused, saying he would get back to London too late. He knew the vehicle did not normally return until 9pm; it was his wedding anniversary and he had a personal cornmitment for that evening; and he feared he might exceed the permitted driving hours.
The matter was reported to Mr Armstrong, the director, and the driver then told him it was true that he was refusing to take the vehicle to St Neots. Mr Armstrong told the driver to "go home" or "go." The driver believed he had been dismissed, and later applied to the tribunal.
Said the tribunal : "Mr Armstrong stated that he expected the driver would ring him up within the next few days and the matter could then be sorted out between them. When the driver did get in touch a week or so later, arrangements were made whereby he could restart work. But in the meantime certain things had happened. The driver, being of the view that he had been dismissed, had taken another job, albeit on a temporary basis. It may well be that Mr Armstrong never expected that the effect of his words would mean that the relationship of employer and employee would come to an end. Doubtless he did think that the driver would ring up and that there would be a discussion and then their relationship might be resumed. Be that as it may, the words used could reasonably be interpreted by an employee as an intimation that he was being dismissed; indeed Mr Armstrong agreed that this could reasonably be the case."
The tribunal said it was satisfied that that was how the driver interpreted them; they thought the words did convey to the driver that he was dismissed, and in consequence there was a dismissal for the purposes of the Act.
The tribunal found the reason for the dismissal to be a wilful refusal to obey an instruction. But it then had, under the wording of the statute, to consider whether the employer in the circumstances acted reasonably in treating it as sufficient reason for dismissing.
The tribunal accepted that, under his contract of employment, the driver could legitimately be asked to undertake the journey to St Neots. But the driver claimed that Mr Armstrong gave him no opportunity to explain his refusal. Mr Armstrong told the tribunal that it would have been possible to make arrangements for an earlier turn-round so that the vehicle could be back by 6pm, but the driver denied being told this. The tribunal did not think it was made clear to the driver at the time that he could have gone to St Neots and been back by 6pm.
The tribunal concluded that it was not reasonable to dismiss the driver because of his refusal to take the job. It was unreasonable because of the shortness of notice, a job which it was not his custom to perform. The driver believed, on good grounds, that he would not be back until 9pm. Secondly, the driver was not given a proper opportunity to explain the personal circumstances which constituted one of the grounds for refusal. Thirdly. it was doubtful if the journey could be accomplished within the permitted driving hours.
So compensation had to be calculated. Loss of earnings during the period until he o'atain'ed another job amounted o £288; loss of the possible benefit of redunlancy was put at £150, and loss of protection against dismissal at £10; making a total of £448.
How careful an employer must be in choosing his words. He must not give any opportunity of allowing the employee to think that he has been dismissed.
Ralph Cropper