Chef awarded £9,500 in constructive dismissal case

Friday 03 November 2023

Bao Asian Cafe Limited has been ordered to pay its former head chef £9,544 by the Employment and Discrimination Tribunal.

Dokrak Timtheerapong claimed she was constructively dismissed following travel to Thailand to attend a traditional Buddhist mourning ceremony after her mother died.

Bao employed someone to fill her place, intending they would be kept on later to work at a second establishment that was being built.

Soon after Ms. Timtheerapong left on 5 February 2022, with a return booked for 19 May, her former partner delivered a medical certificate to the cafe that described her as unable to work for two months.

The respondent was adamant that she had told her employer about when she would be back, but management disagreed, saying they were only told by WhatsApp on 10 May.

“The Applicant had a meeting with the Respondent’s representative, Mr Yau, and his partner on 20 May 2022," the ruling by the three person tribunal panel states.

"During that meeting the Applicant maintains that she was told that the Respondent had no work for her because a replacement had been hired and that she should find a temporary job until the Respondent’s second establishment was open when there would be work for her.

"The Respondent maintains that the Applicant’s return was unexpected and that they simply needed time to arrange things for her return to work. In any event, the Applicant submitted further medical certificates to the effect that she remained unfit for work.”

Mr Yau and the applicant's former partner exchanged emails.

This culminated in Ms Timtheerapong claiming breach of contract because she was not being allowed back to work and that the employment contract had been terminated by that breach, while Bao alleged she had resigned.

The tribunal found that the applicant did tell Mr Yau what her return date was.

It also found that it was significant that the respondent did not deny the allegation contained in two emails that Mr Yau had told the Applicant that there would be no work for her for two to three months and that she would not be paid, or words to that effect.

“Whatever the state of the Applicant’s health, the Tribunal finds as a fact that she was back in Guernsey and looking to the Respondent to allow her to return to her job, and that the Respondent, through Mr Yau, told the Applicant that there would be no work for her for two to three months.

"It might be that the Respondent’s attitude to the Applicant was governed by the ongoing presence of the Applicant’s temporary replacement and the possible opening of another shop, but this does not affect the admitted existence of the continuing contract of employment between the Applicant and the Respondent.”

The Tribunal ruled that Bao was in breach of contract. 

“Furthermore, even if what happened between Mr Yau and the Applicant following her return to Guernsey was simply a misunderstanding, perhaps caused by the language barrier, the Tribunal finds that by not taking reasonable steps to clarify and explain to the Applicant what the Respondent thought was the position and thereby giving the Applicant the opportunity to correct any misapprehension, the Respondent conducted itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Such conduct is also a breach of the T&C term.

“The Tribunal finds that the breach of contract identified above was sufficiently serious to justify the Applicant resigning, that her resignation was in response to the breach and that she did not delay too long between the breach and resigning to admit of any suggestion that she had waived the breach and affirmed the contract.”

It reduced the award by 25% because of the efforts the employer had made when the Applicant requested an extensive period of unpaid leave and had also tried to implement a sensible replacement scheme to cover her.