Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF: 491/01FET

499/02

CLAIMANT: Ann Dornan

RESPONDENT: Craigavon & Banbridge Trust

DECISION

The unanimous decision of the Tribunal is that the claimant's claim for constructive dismissal fails.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Panel Members: Mr S White

Mr A Ebrahim

Appearances:

The claimant was represented by Mr B. McKee, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.

The respondent was represented by Mr A. Montgomery, Barrister-at-Law, instructed by the Central Services Agency.

REASONS

1. The Sources of Evidence:

The tribunal heard evidence from the claimant on her own behalf and from Brian Smyth, Joanne Tedford, Dawn Ferguson and Lindsay McElrath on behalf of the respondent. The tribunal also received a bundle of agreed documents.

2. The Claim and the Defence:

In her originating application to the tribunal the claimant claimed that she had been discriminated against on the grounds of her religious belief and her political opinion but withdrew that claim without objection by the respondent on the second day of hearing. At the same time her claims against the second, third, fourth and fifth

respondents were also withdrawn. The claimant also claimed that she had been unfairly dismissed in that her contract of employment was breached in the application of the disciplinary proceedings and she considers it to be a fundamental breach, in connection with which she resigned. The respondent contended that the claimant had resigned and denied the claim for breach of contract and constructive dismissal.

3. The Issues:

The parties agreed the following issues in the Case Management Conference of 1 November 2004:-

(i) Whether the claimant was unfairly dismissed.

(ii) Whether the claimant's contract was breached in the application of disciplinary proceedings. This head of claim overlapping with the discrimination claim which was withdrawn on the second day of hearing.

4. Analysis of Evidence:

The tribunal preferred the evidence given on behalf of the respondent as being more consistent.

5. Findings of Fact:

(i) The claimant worked for the respondent as a care worker.

(ii) In or around 15 August 2001 the claimant was the subject of an investigation in respect of potential gross misconduct arising from several incidents.

(iii) The claimant was put on precautionary suspension which lasted for fourteen days, after which she was invited to return to work.

(iv) The claimant was totally exonerated on 11 October 2001.

(v) The claimant never actually returned to work with the respondent, taking an absence on annual leave and on sickness.

(vi) The claimant met with the respondent's Mr Brian Smyth on or around 22 October 2001 and the result of that meeting was she decided to resign from employment with the respondent.

(vii) The claimant actually resigned on 3 December 2001 and worked out her notice to 31 December 2001.

(viii) The claimant obtained alternative employment with a private nursing home called Lisadian House and this employment commenced on 5 January 2002.

6. Short Statement of the Relevant Applicable Principle of Law:

It is settled law that in seeking to establish a claim for constructive dismissal, a claimant must establish the following facts:-

(i) Was there a dismissal?

(ii) If there was not a dismissal was there a breach of the contract of employment of the claimant that was sufficiently serious to warrant her leaving in response to the breach and not delaying in so doing?

7. The Tribunal's Conclusions:

Having applied the relevant principle of law to the facts found.

It is the unanimous decision of the tribunal that the fact of investigating the claimant under the respondent's disciplinary processes is not a fundamental breach of the claimant's contract of employment. In this case, the claimant was not dismissed on foot of disciplinary proceedings finding her guilty of gross misconduct. The matter did not even reach a hearing. A thorough investigation was carried out by employees of the respondent Trust and as a result of this the claimant was firstly taken off precautionary suspension and then on 11 October 2001 completely exonerated. It was argued on behalf of the claimant that the investigation took too long. The tribunal is unable to accept this contention. At the time the claimant was invited to return to work in or around 31 August 2001, she was told that most of the complaints against her were of no substance but there was one outstanding matter to be resolved. That matter was subsequently resolved by the letter dated 11 October 2001 informing the claimant that the investigation was complete and there was no case to answer. The claimant did write to the respondent in or around 20 September 2001 indicating her concern and frustration at the length of time the investigation was taking.

There was a fourth meeting between the claimant and Brian Smyth at which Lindsay McElrath, the Personnel Manager, was present. At that meeting the claimant was told to return to work report everything as before and follow the care plan. The claimant contended that she felt she was being put on probation, although the tribunal saw no evidence to support that contention and at that meeting she decided that she would have to resign. However, the claimant did not actually submit her resignation until 3 December 2001. Furthermore, the claimant worked out her notice, having returned to work on 6 December 2001.

Where, on the claimant's own case, it is clear that the decision to resign had been taken on 22 October 2001 and the actual resignation was not submitted until 3 December 2001, the tribunal unanimously finds that the claimant delayed in responding to her treatment by the respondent. The tribunal does not find that the respondent's behaviour in the conduct and the fact of the investigation was a repudiatory breach of the claimant's contract of employment, but if it had so found, it would have found that the claimant's behaviour in failing to actually resign having made the decision on 22 October 2001, until 3 December 2001, was a delay on the part of the claimant which constituted a waiver of the breach.

Chairman:

Date and place of hearing: 14 November 2005, Belfast.

Date decision recorded in register and issued to parties: