Claim
THE CASE
Kyalo v Dandara
THE CLAIMS
- Discrimination on the grounds of race
- Unfair dismissal (for no fair reason and no fair process)
- Nonpayment of notice
THE RESPONSE
There was no dismissal but a resignation If there was a dismissal it was nothing to do with race but was for a fair “some other substantial reason” and a reasonable process was followed
THE JUDGEMENT
The discrimination and notice claims failed. The unfair dismissal claim succeeded, and the claimant was awarded £1,242 (reduced from potential maximum award of £4,968).
THE STORY
The Claimant’s position was that he believed that the Respondent was not renewing his work permit or contract and that he would therefore be unable to legally stay in Jersey.
On 11 June he booked a plane ticket to return to Africa on 22 July (when his Jersey work permit would expire) and on 22 June he emailed the employer stating that he would be leaving the staff accommodation “next month”.
On receipt of a reference letter issued by the company he emailed to say he was leaving because his work permit, visa and contract had not been renewed. In response to the employer saying that he had verbally resigned giving two weeks notice at a meeting on 2 July, he emailed denying that there was any such meeting and that he had never resigned, and he submitted his Tribunal claim.
The employer’s position was that they were aware that he had booked a one way flight home, were aware that he was leaving his accommodation and that he had verbally resigned giving two weeks notice at a meeting with two managers. A witness for the Respondent made a statement that he had met the Claimant some months later in Nairobi and that the claimant had said he was bringing a claim against the Respondent “motivated purely by financial gain” and said he made up “racist allegations”.
REASONS FOR THE DECISIONS
The Claim provided no evidence of any racial discrimination and identified no relevant comparators so that claim was dismissed.
The claim for notice which is a breach of contract claim also failed because he was back in Africa for the two weeks related to the notice period that should have been given and as he was unavailable for work was not due any wages and had suffered no loss that required compensating.
Regarding unfair dismissal, the Tribunal clearly found the evidence of the claimant to be more accurate and convincing than that of the respondent. The two managers who were identified as being in the 2 July resignation meeting did not provide consistent or compelling testimony about that event and the Tribunal preferred the evidence of the Claimant.
The Tribunal also noted that the employment contract states that giving of notice must be confirmed in writing.
As for the evidence of the witness regarding the alleged conversation in Nairobi and based on telephone and text messages provided in evidence, the Tribunal concluded that the testimony was completely fabricated and that the conversation never took place. The Tribunal applied two tests established by a key UK EAT case(Impact v Korpysa) – (1) Did the employer have a reasonable belief that there had been a resignation and (2) Did they take reasonable steps to confirm that belief before acting on it?
As the Claimant had confirmed in writing before his last day of employment that he was not resigning there could not have been a reasonable belief so Test 1 was failed and the Tribunal went on to say that even if the employer had passed that test they would have been found to have comprehensively failed the second.
The Tribunal found that the Claimant had been dismissed (by non-renewal of the fixed term contract) and that the dismissal was unfair. The maximum award would be eight weeks pay, totalling £4,968.
However, the Tribunal will always consider whether it is appropriate to make the maximum award or whether to apply a reduction in line with Article 77F of the Employment law. The Tribunal relied on the Jersey Royal Court judgement in the case of Wolfson v Trident Trust which affords the Tribunal considerable freedom and leeway to apply reductions.
In this case they held that the Claimant should have asked in writing for confirmation regarding his contract, work permit and visa and provided more information regarding his flight booking and accommodation decision ,and reduced his award down from eight week’s pay to two week’s.
KEY LEARNING
- Follow your contract – if something must be in writing, get it in writing.
- Make reasonable and fair enquiries before processing something you think is a resignation.
- Make sure witness statements and testimony under oath are consistent, compelling, evidenced and not fabricated.
- Take professional advice on whether and how to make sure your Response Form and evidence make as strong a case as possible for a 77F reduction in any award.
The Claimant will always claim the maximum award and will allege that JACS have told them that is what they will get - conveniently forgetting the words up to a maximum of and the Jersey Tribunal has a strong track record of making reductions and significant ones at that.
Tony Riley